1. State of West Virginia v. Bethel Hatcher, No. 010556. Defendant appeals from his conviction of first degree murder. He was sentenced to life imprisonment with the possibility of parole.

Accept For Motion Docket

Justices Starcher and Albright would grant the defendants’s petition and would have this matter fully briefed and set on the argument docket. They state, as grounds for this position, as follows:

We believe that the Court should give full appellate review, with full briefing and oral argument, to all cases involving life imprisonment. Our reasons are somewhat overlapping.

First, without full state court appellate review, such criminal convictions do not have any sort of "stamp of approval" or presumption of correctness, in any subsequent or collateral proceeding -- for example, in federal or state habeas corpus. As an example, this Court recently refused to review a life-with-no-parole murder conviction. Then, the Supreme Court of the United States reversed this Court, saying that the conviction may have violated established constitutional law, and remanded the matter for further proceedings. Flippo v. W.Va., 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999). (Justice Starcher notes that he voted not to review this case, a vote of which he now repents.) The Supreme Court noted that the last court to rule on the merits of the case was the Circuit Court of Fayette County. We find this rather embarrassing -- to have a West Virginia trial court’s errors fixed by the "the U.S. Supremes" -- without this Court even taking a look at the issues first. Moreover, the day my well come when the Supreme Court of the United States (or even this Court) requires full appellate review of such cases as a matter of due process. We would support such a position. If that day comes, this Court does not want to find itself in a position of having to deal with whether such a ruling might be retroactive.

Second, merely looking at the appeal petitions in these cases means we do not get the benefit of the West Virginia Attorney General’s review -- as is ordinarily the case when a petition is accepted, briefed, and argued. When there is a full review, the Attorney General’s office will often recognize and acknowledge clear error when it is present -- although they may argue that such error was harmless. Simply put, Attorney General involvement means better quality briefs and argument, and improves the quality of justice.

Third, full appellate review assures that important issues in these "life imprisonment" cases are brought to the attention of the bar generally, and can be followed by interested lawyers. When cases are briefed and argued and an opinion is to be written, amici or other voices may ask to be heard on important issues.

Fourth, our criminal jurisprudence is better reasoned and developed when such cases are briefed and dealt with in an opinion. Where we uphold a conviction (as we do in most cases), opinion writing forces the Court to consciously recognize and articulate its reasoning. Additionally, as one of three co-equal branches of government, we have a duty to reflect on what is going on in our court system and our broader society, that leads to such severe criminal sentences.

Fifth, when the Court accepts life imprisonment cases for full briefing and argument, we can (in appropriate cases) appoint new counsel, so that exceptionally important issues will be properly presented. It is apparent to us that some defendants do not have their issues well raised due to inexperienced counsel preparing their petitions. Regrettably, but inescapably, the quality of an appeal petition can make some difference as to whether or not we accept a case for full argument.

Finally, we should have these cases argued and briefed because the consequences of error at trial are so extreme. In Illinois, since the reinstatement of the death penalty, as many people as have been executed have been freed from death row, due to trial errors. Here in West Virginia, we know all about the Fred Zain case. We know that trials can be unfair, and criminal convictions can be downright wrong. Where the sentence is of life imprisonment, simple fairness means that we must take the steps that will try to detect any unfairness in the proceedings that led to the sentence.

 

 

2. State of West Virginia v. Marvin Mills, No. 010597. Defendant appeals from his conviction for first degree murder with the use of a firearm. He was sentenced to life imprisonment without a recommendation of mercy.

Accept For Motion Docket

Justices Starcher and Albright would grant the defendants’s petition and would have this matter fully briefed and set on the argument docket. They state, as grounds for this position, as follows:

We believe that the Court should give full appellate review, with full briefing and oral argument, to all cases involving life imprisonment. Our reasons are somewhat overlapping.

First, without full state court appellate review, such criminal convictions do not have any sort of "stamp of approval" or presumption of correctness, in any subsequent or collateral proceeding -- for example, in federal or state habeas corpus. As an example, this Court recently refused to review a life-with-no-parole murder conviction. Then, the Supreme Court of the United States reversed this Court, saying that the conviction may have violated established constitutional law, and remanded the matter for further proceedings. Flippo v. W.Va., 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999). (Justice Starcher notes that he voted not to review this case, a vote of which he now repents.) The Supreme Court noted that the last court to rule on the merits of the case was the Circuit Court of Fayette County. We find this rather embarrassing -- to have a West Virginia trial court’s errors fixed by the "the U.S. Supremes" -- without this Court even taking a look at the issues first. Moreover, the day my well come when the Supreme Court of the United States (or even this Court) requires full appellate review of such cases as a matter of due process. We would support such a position. If that day comes, this Court does not want to find itself in a position of having to deal with whether such a ruling might be retroactive.

Second, merely looking at the appeal petitions in these cases means we do not get the benefit of the West Virginia Attorney General’s review -- as is ordinarily the case when a petition is accepted, briefed, and argued. When there is a full review, the Attorney General’s office will often recognize and acknowledge clear error when it is present -- although they may argue that such error was harmless. Simply put, Attorney General involvement means better quality briefs and argument, and improves the quality of justice.

Third, full appellate review assures that important issues in these "life imprisonment" cases are brought to the attention of the bar generally, and can be followed by interested lawyers. When cases are briefed and argued and an opinion is to be written, amici or other voices may ask to be heard on important issues.

Fourth, our criminal jurisprudence is better reasoned and developed when such cases are briefed and dealt with in an opinion. Where we uphold a conviction (as we do in most cases), opinion writing forces the Court to consciously recognize and articulate its reasoning. Additionally, as one of three co-equal branches of government, we have a duty to reflect on what is going on in our court system and our broader society, that leads to such severe criminal sentences.

Fifth, when the Court accepts life imprisonment cases for full briefing and argument, we can (in appropriate cases) appoint new counsel, so that exceptionally important issues will be properly presented. It is apparent to us that some defendants do not have their issues well raised due to inexperienced counsel preparing their petitions. Regrettably, but inescapably, the quality of an appeal petition can make some difference as to whether or not we accept a case for full argument.

Finally, we should have these cases argued and briefed because the consequences of error at trial are so extreme. In Illinois, since the reinstatement of the death penalty, as many people as have been executed have been freed from death row, due to trial errors. Here in West Virginia, we know all about the Fred Zain case. We know that trials can be unfair, and criminal convictions can be downright wrong. Where the sentence is of life imprisonment, simple fairness means that we must take the steps that will try to detect any unfairness in the proceedings that led to the sentence.

 

3. State of West Virginia, ex rel. DHHR, Bureau for Child Support Enforcement v. Bonnie H. Kratovil and April L. Dowler, in their capacity as Family Law Masters for the Twenty-Third Judicial Circuit, No. 010596. This case involves a certification of questions from the circuit court.

Grant 5-0

 

4. Austin Landry v. Joan Bragg, Magistrate Berkeley County, No. 010593. Petitioner appeals from the circuit court’s order denying him habeas corpus relief.

Refuse 5-0

 

5. Grady D. Hager v. Pauline K. Hager, No. 010594. Petitioner husband appeals from the circuit court’s order affirming the family law master’s alimony award to respondent wife seeking either a reversal of that award or a remand to the family law master for a recalculation of petitioner’s alimony obligation.

Grant 5-0

 

6. Kanawha Valley Radiologists, Inc. v. CNA Commercial Insurance, No. 010611. CNA Commercial Insurance appeals from the circuit court’s order granting plaintiff’s motion for the release of escrowed funds and attorney’s fees and expenses.

Grant 4-1
[McGraw, C.J.]

7. Fred Lamphere v. Consolidated Rail Corporation (Conrail), individually and as successor to Central Corporation, Penn Central Transportation Company, Penn Central Railroad, Pennsylvania Railroad and New York Central Railroad, No. 010609. Defendant appeals from the circuit court’s order granting a new trial in favor of plaintiff after a verdict was rendered in favor of defendants in this action brought pursuant to the Federal Employer’s Liability Act. Plaintiff alleged that defendant failed to provide him with a safe place to work, which caused him to develop mesothelioma.

Grant 4-1
[On Issue 1 Only]
[McGraw, C.J.]

 

 

8. Deleno Webb, III, M.D. v. West Virginia Board of Medicine, No. 010622. The West Virginia Board of Medicine appeals from the circuit court’s order which (1) vacated all restrictions imposed on respondent’s medical license by the Board, and (2) reversed the Board’s Order disciplining respondent’s license.

Accept For Motion Docket

 

9. Michael Ray Walker, et al. v. John Doe; and, Michael Walker, et al. v. William J. Nesbitt, etc.; and, The City of Charleston v. David L. Workman, No. 010626. The City of Charleston appeals from the circuit court’s order denying its motion for summary judgment and granting State Farm Mutual Automobile Insurance Company’s cross-motion for summary judgment.

Grant 4-1
[Davis, J.]

 

10. Theresa E. Valine and Gordon H. Valine v. Sanjay Chaudhry, M.D., d/b/a Digestive Disease Center, No. 010058. The petitioners, Theresa and Gordon Valine, challenge a jury verdict returned in the Circuit Court of Marshall County in favor of the respondent, Dr. Sanjay Chaudry, d/b/a Digestive Disease Center. The jury found that the respondent did not deviate from the standard of care in recommending and performing a diagnostic operation known as an ERCP upon Mrs. Valine, even though Mrs. Valine suffered post-operatively from pancreatitis, a known complication of an ERCP. The petitioners contend, inter alia, that the Circuit Court erred in giving to the jury the respondent’s "error in judgment" and "alternative courses of action" instructions.

Grant 5-0

11. James D. Kizer v. Charles Harper, No. 010630. The petitioner (defendant below), Charles Harper, challenges a jury verdict returned in the Circuit Court of Kanawha County in favor of respondent (plaintiff below), James Kizer. The respondent, while checking a cable television line, fell from a utility pole when he was shocked due to an allegedly negligently installed circuit breaker box at a nearby residence. The circuit breaker box was installed by an electrician hired by the petitioner. The petitioner contends, inter alia, that the Circuit Court erred in determining that the installation of the box was an inherently dangerous activity and that, for that reason, the petitioner could not assert the defense that the electrician was an independent contractor.

Grant 3-2
[McGraw, C.J., Starcher, J.]

 

12. Sandra Roegner v. Putnam County Board of Education, No. 010632. The petitioner, Sandra Roegner, appeals from an order entered in the Circuit Court of Putnam County affirming a Level IV grievance decision. As reflected in the decision, the Administrative Law Judge rejected the petitioner’s claim that the respondent, Putnam County Board of Education, unfairly denied her the opportunity to take a competency test for a teacher’s aide position. The petitioner emphasizes the fact that the posting for the position did not mention the necessity of requesting or passing such a test as a requirement for the job.

Refuse 5-0

 

13. Charles Cunningham; Donalee Cunningham and Tyler Cunningham (a minor) v. Samuel H. Beverage (West Virginia Commissioner of Highways); The City of Parkersburg; et al., No. 010634. The petitioners, Charles Cunningham, et at., appeal from an order entered in the Circuit Court of Wood County dismissing the respondent, City of Parkersburg, from the petitioners’ personal injury action upon the ground that, because the injured petitioner was entitled to workers’ compensation benefits with regard to the accident, the City was entitled to immunity pursuant to W.Va. Code, 29-12A-5(a)(11) [1986]. The petitioners challenge the statute’s constitutional validity.

Accept For Motion Docket

14. West Virginia Division of Corrections v. Roger Channell, et al., No. 010635. The petitioner, West Virginia Division of Corrections, appeals from an order entered in the Circuit Court of Kanawha County affirming two Level IV grievance decisions. The grievance decisions held that a 5% incentive pay increase, given to employees who laterally transferred from the Corrections Unit at Huttonsville Correctional Center to the Management Unit, was discriminatory, since the same increase was not given to the respondents who were promoted into the Management Unit. The petitioner contends that the Circuit Court erred in upholding the Level IV decisions because the respondents, who were promoted, were not similarly situated to the laterally transferred employees.

Refuse 5-0

 

15. Harold Moore, et al. v. Consolidated Coal Co., No. 010636. In this age discrimination action, the petitioners, Harold Moore, et al., appeal from a jury verdict returned in the Circuit Court of Monongalia County in favor of their employers, respondents Consolidated Coal Company and Consolidated Coal Company Morgantown Operations. The petitioners contend that the Circuit Court committed error in precluding the petitioners from submitting to the jury certain matters of evidence.

Accept For Motion Docket

 

16. Erika L. Miller v. Monongalia County Board of Education, No. 010638. The petitioner, Erika L. Miller, appeals from an order entered in the Circuit Court of Monongalia County dismissing her action against the respondent Monongalia County Board of Education as untimely filed. Related to this matter is this Court’s decision in State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000), in which the third degree sexual assault convictions of McIntosh (the petitioner’s former teacher) were affirmed. The petitioner, whose action against the Board of Education arose from McIntosh’s misconduct, contends that the Board concealed material facts concerning the misconduct and that the Circuit Court, therefore, should have applied the discovery rule to the limitation period referenced in W.Va. Code, 55-2-15 (1925).

Grant 5-0

17. Keith Wolfe, d/b/a Petersburg Motor Company v. John C. Welton, Jr., No. 010639. The petitioner, John C. Welton, Jr., appeals from an order entered in the Circuit Court of Grant County reversing a jury verdict returned in favor of the petitioner in magistrate court with regard to the petitioner’s purchase of a used automobile from the respondent, Keith Wolfe d/b/a Petersburg Motor Company. The petitioner asserted in magistrate court that, at the time of sale, the automobile had a defective transmission. The petitioner contends, inter alia, that the Circuit Court committed error in failing to follow the requirements of W.Va. Code, 50-5-12 (1994), which sets forth the procedure for perfecting an appeal from a magistrate court to a circuit court.

Grant 4-1
[Maynard, J.]

 

18. In re: William Sorsby (Debtor); Martin P. Sheehan (Trustee) v. WFS Financial, Inc. and Ronald Burton Squires and Marsha Renea Squires (Debtors); Martin P. Sheehan (Trustee) v. Mercedes-Benz Credit Corp., No. 010650. In this certified question case, the United States Bankruptcy Court for the Northern District of West Virginia asks this Court to review the status of out-of-state liens upon vehicles owned by West Virginia residents in terms of bankruptcy proceedings instituted in West Virginia.

Grant 5-0

 

19. M-B Limited Partnership v. Glenn V. Longacre, Jr., Wanda Longacre; John Moore and Helen Moore, No. 010649. In this boundary dispute matter, the petitioners, Glenn Longacre, et al., appeal from a summary judgment entered in favor of the respondent, M-B Limited Partnership. The controversy concerns the southern boundary line of the petitioners’ tract of land, and the resulting area in dispute consists of approximately 10 acres. The petitioners contend that, since the opinions of the respective surveyors were in conflict, summary judgment was inappropriate.

Grant 5-0

20. American States Insurance Company v. Jack Tanner, June Tanner, Louise Rietz Nelsen, Administratrix of the Estate of Alvin B. Nelsen, Rachel Neal Handel, Administratrix of the Estate of Oliver Neal, Jr., State Farm Insurance Company and Enterprise Rent-A-Car of Kentucky, No. 010640. Plaintiff below seeks to appeal summary judgment in favor of insurer regarding availability of liability insurance for a motor vehicle accident.

Accept For Motion Docket

 

21. James Pennington v. Wal-Mart Stores, Inc., No. 010646. Defendant seeks to appeal a jury verdict in a slip and fall case related to several matters which occurred at trial.

Refuse 5-0

 

22. Shirlene Dixon v. White Motors, Inc., a West Virginia Corporation and Rick Burnette, individually and Joseph F. White, No. 010652. Suggestee in proceeding in aid of execution of judgment seeks to appeal award of summary judgment against him.

Refuse 5-0

 

23. William T. McCoy and Beverly McCoy v. Jay Requarth, M.D., John Chapman, M.D., No. 010653. Plaintiffs seek to appeal dismissal of medical malpractice complaint for failure to identify experts within court’s time-frame order.

Grant 3-2
[Maynard, J., Davis, J.]

 

24. State of West Virginia v. Shawna James, No. 010654. Petitioner seeks to appeal conviction of malicious assault based upon instructional error.

Accept For Motion Docket