WRIT CONFERENCE
WEDNESDAY, NOVEMBER 28, 2001
1. In the Matter of: Danika S. Christopher S. & Tiara S., No. 012092 (Filed 10/10/01)
The Dept. appeals the portions of the circuit court orders placing custody of three children with their maternal grandmother in Pennsylvania after Children and Youth Services of Indiana, Pennsylvania performed a home study on the maternal grandmother and her husband and rejected them for placement of the children. The Dept. claims that the court below erred in that the order is illegal and void because it violates the Interstate Compact found at W.Va. Code § 49-2A-1 et seq.
Refuse 3-2
[McGraw, C.J., Davis, J.]
2. In the Matter of: Laura E. And Christopher E., No. 012134 (Filed 10/12/01)
The mother appeals the circuit court order terminating her parental rights, claiming that the circuit court erred in denying her an improvement period and terminating her parental rights.
Refuse 5-0
3. In the Matter of: Vanessa L., Natasha M, Michael K., and Matthew B., No. 012218
The mother appeals the circuit court order terminating her parental rights, claiming that the State failed to prove by clear and convincing evidence that there is no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future.
Refuse 5-0
4. In the Matter of: Charles Michael Thomas R., No. 012229 (Filed 10/24/01)
The mother appeals the circuit court order terminating her parental rights, claiming that the State failed to prove by clear and convincing evidence that there is no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future.
Refuse 5-0
5. In the Matter of: Spirit Leann S., No. 012240 (Filed 10/26/01)
The father appeals the circuit court order terminating his parental rights to his daughter, claiming that the court below erred in (1) denying petitioner’s Motion in Limine and permitting the State to introduce evidence that was not admissible or relevant to the instant abuse and neglect proceeding; (2) in finding that Austin S. was an abused and/or neglected child; and (3) in denying petitioner’s motion for an improvement period. These are the same assignments of error raised by the father in the related case, In the Matter of: Austin S., docket # 011971, refused by this court 5-0 on 9-20-01.
Refuse 5-0
6. In the Matter of: Everette M., Kelly M., Seandrae M., No. 012273 (Filed 10/31/01)
The mother appeals the circuit court order terminating her parental rights to her four children, claiming that the court erred in that the mother did not receive a meaningful improvement period.
Refuse 5-0
7. In the Matter of: Joanie R., No. 012337 (Filed 11/9/01)
The mother appeals the circuit court order terminating her parental rights, claiming that the court erred in finding the child was abused and neglected based on unsubstantiated accusations, in failing to enter an order reflecting the adjudicatory hearing held on April 18, 2001, and in terminating the mothers parental rights when she could not avail herself of services to demonstrate improvement and retain her parental rights.
Refuse 4-1
[Albright, J.]
8. State of WV v. Emmanelle Paul Robinson, No. 011720 (Filed 8/13/01)
Robinson was convicted of a plea of guilty on 4 counts of delivery of marijuana and 2 counts of delivery of cocaine. The court sentenced Robinson to a term of 1 to 5 years for each of the 4 marijuana counts, to be served concurrently, and 1 to 15 years for each of the cocaine counts, to be served concurrently with each other and consecutively to the sentences for the marijuana convictions. Sentencing resulted in an aggregate sentence of 2 to 20 years in the penitentiary. Robinson appeals, claiming the court erred in denying his request for alternative sentencing.
Refuse 5-0
9. State of WV v. Todd Crum, No. 011803 (Filed 8/21/01)
Crum appeals conviction by a jury on five counts of aggravated robbery with the use of fire arms. The court sentenced Crum to twenty years for each count with each sentence to run consecutively. Crum claims the court erred in allowing a his wife’s written statement to be read to the jury and treated as substantive evidence, in allowing his statement to be admitted, in allowing amendment of counts in the indictment to change the identity of the victim, in failing to dismiss counts 1 and 6 for improper venue, in failing to grant a judgement of acquittal based on insufficient evidence, in failing to grant a mistrial or other relief based on petit jury irregularities, and in denying Crum his right to a fair trial.
Refuse 4-1
[Albright, J.]
10. State of WV v. Danny C. Windon, No. 011894 (Filed 8/31/01)
Windon appeals his conviction of grand larceny for which he was sentenced to 1 to 10 years in the penitentiary, claiming that the court erred in failing to grant Windon motion for judgement in acquittal based on insufficient evidence and given the fact that the eyewitness could not identify Windon.
Refuse 5-0
11. Douglas Hilling d/b/a General Property Services v. W.Va. Contractor’s Licensing Board, No. 010918 (Filed 5/21/01)
The W.Va. Contractor Licensing Board appeals the circuit court order reversing the decision of the Board dated August 10, 2000 which adopted without modification the recommended Findings of Fact, Conclusions of Law, and Order of the hearing examiner dated June 17, 2000, suspending the license of Douglas Hilling until he satisfied a judgment against him entered November 13, 1997 by the Circuit Court of Monongalia County in a case styled Mary Bezjak v. Douglas Hilling d/b/a General Property Services, Civil Action No. 96-C-432. The Board claims that the lower court erred in finding that the Board did not have authority under W.Va. Code § 21-11-1, et seq. to suspend Hilling’s license, in applying the arbitrary and capricious standard, and in finding that there is no fraud demonstrated in the administrative record.
Refuse 5-0
12. Stella Thompson v. Phillip D. Harvey, No. 011210 (Filed 6/19/01)
Thompson appeals the circuit order granting Ford Motor Company’s motion for summary judgement in Thompson’s underlying action for monetary damages for wrongful death arising from a automobile collision. Thompson claims the circuit court erred in ruling that her claim against Ford Motor Company was preempted federal law, in granting summary judgement when there are existing genuine issues of material fact, and in ruling that the testimony of Thompson’s expert witness as not admissible.
Refuse 4-1
[McGraw, C.J.]
13. Orville Green v. Howard Painter, Warden, No. 011249 (Filed 6/25/01)
Green appeals the circuit court order denying his petition for a writ of habeas corpus, claiming the lower court erred in failing to grant his petition based on: (1) a claim of ineffective assistance of counsel, (2) because the Perry instruction was not given, (3) because of the excess sentence, and (4) a claim of insufficient evidence to support a verdict of guilt.
Refuse 5-0
14. Lowell W. Pistelli v. D. L. Williams Construction, No. 011276 (Filed 6/26/01)
D. L. Williams Construction appeals the circuit court order granting summary judgment in favor of Pistelli on all issues. Petitioner claims the circuit court erred in concluding that no genuine issue of fact existed.
Refuse 5-0
15. Barbara Sue Lavender v. Don Allen Lavender, No. 011379 (Filed 7/3/01)
Don Allen Lavender appeals the circuit court order granting permanent alimony to Barbara Sue Lavender, claiming the court erred in considering the parties previous 19 year marriage and in making no finding of fact that the petitioner was unable to work or be employed.
Refuse 5-0
16. E. Virginia Rockwell Appraiser v. John Ratino, No. 011585 (Filed 7/23/01)
Ratino appeals the circuit court order of November 28, 2000 finding that a contract of settlement had been made and the order entered March 7, 2000 denying Ratino’s Motion for Reconsideration. Ratino claims the court erred in holding that a settlement agreement had been reached between the parties and in failing to provide Ratino with an evidentiary hearing to determine whether or not a settlement agreement was excluded under mistake, duress, coercion or a lack of authority.
Refuse 5-0
17. Daniel L. Gilchrist v. John A. Casinelli, No. 011599 (Filed 7/23/01)
Gilchrist appeals the circuit court order overturning the results of an election for Brooke County Commission as determined by the Brooke County Commission following an election contest. Gilchrist claims that the court below erred in 1) allowing credit for 4 votes in which the voters punched multiple straight party votes; 2) in allowing credit for two "reversed ballots" for Casinelli which contained only dimples and not perforations; 3) in disqualifying a vote for Casinelli which contained a "dimpled" vote for Gilchrist which is inconsistent with the court’s crediting of "dimpled" votes for Casinelli; and 4) for failing to overturn two additional ballots involving multiple straight party votes which were credited to Casinelli by the County Commission.
Refuse 5-0
18. In the Matter of Christopher P., Cheyenne P., and Cynthia P., No. 012096
(Filed 10/10/01)Raymond P., the father, appeals the circuit court’s order terminating his parental rights to his two daughters, Cheyenne P., now 4, and Cynthia P., now 5, arguing that his conviction for sexual abuse of D.K.P., his 13 year old adopted daughter, is not clear and convincing evidence of grossly immoral behavior so as to render him an unfit parent as to his later born children, Cheyenne and Cynthia P.
Refuse 4-0
Justice Albright deemed himself disqualified and did not participate in the consideration or decision of this case.
19. In the Matter of Tyler Lee G. and Hunter Karl G., No. 012172 (Filed 10/16/01)
Petitioner Father, Gabe H., appeals circuit court’s order adjudicating his biological son Hunter Karl G., now 2, as an abused and neglected child due to abandonment by petitioner.
Refuse 5-0
20. In the Matter of Douglas V., No. 012187 (Filed 10/17/01)
Mother appeals the termination of her parental rights to her children, Douglas V., now 11, Tara V., now 10, Tyler Mc., now 6, and Ashley P., now 2.
Refuse 5-0
21. In the Matter of Ruth B, Verlie B, and Marie B, No. 012239 (Filed 10/26/01)
Mother and father, represented by separate counsel, file a joint petition challenging the circuit court’s termination of their parental rights to their three children, Ruth, now 6, Verlie, now 5, and Marie, now 2.
Refuse 5-0
22. In the Matter of Harold H. and Oleda H., No. 012272 (Filed 10/31/01)
Mother appeals circuit court’s order awarding permanent legal custody of the children, Harold, 16 and Oleda, 12, to petitioner’s mother. Mother argues that there were less restrictive alternatives possible.
Refuse 5-0
23. In the Matter of Kody K. & Kaylee K., No. 012293 (Filed 11/01/01)
Father appeals termination of his parental rights to Kaylee N., now nearly 3, and Kody K., now 7.
Refuse 5-0
24. State of West Virginia v. Bart Strickler, No. 011601 (Filed 7/23/01)
Defendant, Bart Strickler, appeals circuit court’s order sentencing him to serve one to five years in the penitentiary for third offense domestic battery and ordering defendant to pay court costs and attorney fees.
Refuse 5-0
25. State of West Virginia v. Michael E. Bryant, No. 011677 (Filed 8/1/01)
Michael E. Bryant appeals the circuit court’s order based upon a jury verdict of guilty of unlawful assault (a lesser included offense of malicious assault) which sentenced him to an indeterminate term of 1 to 5 in the penitentiary.
Refuse 5-0
26. Larry D. Santee v. Barbara S. Santee, No. 010931 (Filed 5/22/01)
Defendant/wife in divorce action appeals circuit court order which overturned the Family Law Master’s ruling that she was entitled to alimony. Defendant argues that the exceptions filed by her husband to the order were not timely and should not have been considered by the circuit court. Further, the wife argues that the circuit court’s decision was improper as it failed to identify which of the six statutory criteria of W.Va. Code § 48A-4-20 (c) justified the change from the Family Law Master’s finding that she was entitled to alimony.
Grant 5-0
27. Tammy Collier v. City of Huntington, No. 011149 (Filed 6/5/01)
Plaintiffs below appeal circuit court’s order granting summary judgment to defendant City of Huntington and dismissing their employment discrimination claims with prejudice.
Refuse 4-1
[McGraw, C.J.]
28.. W.Va. Dept. of Health and Human Resources v. David Wehrle, No. 011145
(Filed 6/12/01)Bureau of Child Support Enforcement appeals circuit court’s order denying Bureau reimbursement child support for his disabled son Sean. Bureau seeks reversal and remand for a hearing on the father’s ability to pay reimbursement child support during the period and to set the appropriate amount of reimbursement based upon the results of the hearing.
Refuse 5-0
29. Columbia Gas Transmission Corp. v. Elaine M. Foster, No. 011248 (Filed 6/25/01)
Petitioner Elaine Foster, defendant in a condemnation case brought by Columbia Gas Transmission to obtain a pipeline easement across her timbering land in Lewis Cty, appeals the circuit court’s January 11, 2000 order which denied Elaine Foster’s petition to vacate the August 1, 1994 order dismissing the condemnation suit due to Columbia Gas Transmission’s bankruptcy. (See attached circuit court order) Petitioner asserts that Columbia Gas Transmission received an easement across her land but never paid her anything for it.
Grant 5-0
30. Norman Rohr and Carol Rohr v. Allegheny Power, No. 011292 (Filed 6/27/01)
Plaintiffs below appeal the circuit court’s order denying plaintiffs’ motion for new trial which was predicated upon the plaintiffs’ assertion that the trial court improperly excluded the testimony of three proposed Rule 404 (b) witnesses proffered by the plaintiffs and granting the defendants’ motion to correct the jury verdict which reduced the damage award in this improper tree cutting case from $6,000 to $4,500. Plaintiffs also appeal the circuit court’s order denying plaintiffs’ motion for full prejudgment interest, the circuit court allowing prejudgment interest on the $1500 compensatory damages only. The circuit court refused to award prejudgment interest on the triple damages awarded pursuant to W.Va. Code § 61-3-48a or the $500 for annoyance and inconvenience damages.
Refuse 4-1
[McGraw, C.J.]
31. SER WVDHHR v. Larry Farmer, No. 011612 (Filed 7/24/01)
Father appeals circuit court order entering child support principal and interest judgment against him. Father argues that the circuit court erred by failing to reduce the amount of the child support to reflect that the father had physical custody of the eldest son during the period when the child support accrued. Father also argues that the circuit court erred in the amount ordered as it did not reflect reductions since the emancipation by marriage of his daughter or the fact that his youngest son reached majority.
Refuse 4-1
[McGraw, C.J.]
32. Lisa E. Dobbins v. John D. Dobbins, No. 011637 (Filed 7/25/01)
Defendant in divorce appeals circuit court’s entry of final divorce order recommended by Family Law Master. Defendant challenges rulings on alimony, and distribution of the marital property.
Refuse 5-0
33. Ellen Hartley v. Board of Trustees/West Virginia University, No. 011662 (Filed 7/30/01)
Plaintiff below appeals circuit court’s order affirming the Administrative Law Judge’s decision which denied her grievance against the respondent/ her former employer, West Virginia University, based upon her termination. The Administrative Law Judge found at Level 4 that there was no merit to plaintiff’s argument that she was improperly terminated based upon her refusal to take a polygraph test regarding alleged embezzlement from a WVU account she managed.
Refuse 4-1
[McGraw, C.J.]
34. Timothy C. White v. Joe E. Miller, Comm’r DMV, No. 011704 (Filed 8/8/01)
Petitioner appeals circuit court’s order denying his petition for mandamus against the respondent, State of West Virginia/DMV to reinstate his drivers license. Petitioner’s drivers license was suspended for one year due to unpaid traffic violations and driving on a suspended license. Petitioner argues that he has lost his employment due to the revocation of his drivers license. According to the record, petitioner may obtain his drivers license again after October 2001.
Refuse 5-0
35. SER William H. Berkeley III v. George Trent, Warden, No. 011713 (Filed 8/9/01)
Petitioner appeals the circuit court’s order dismissing his fourth petition for habeas corpus.
Refuse 5-0
36. SER Eugene Blake v. Ohio County Circuit Court, No. 010950 (Filed 5/23/01)
Blake seeks a Writ of Prohibition to stop the enforcement of a 4/3/97 Ohio County Circuit Court Sentencing Order in which Blake was sentenced to Life with Mercy for Murder, 3 to 10 years for Abduction of a Child for the purpose of Prostitution or Concubinage with the Intent to Defile and 2 to 10 years for Assault during the Commission of a Felony. Blake asserts the following assignments of error: (1) There was substantial evidence to show that Blake did not commit the crime of abduction, and asserts that as a result, the Sentencing Judge and Prosecuting Attorney should not have permitted Blake to enter a guilty plea to that charge; (2) The Sentencing Judge and Prosecuting Attorney abused their discretion when they allowed Blake to plead guilty to offenses that he had not been charged with at that time; (3) ineffective assistance of counsel; (4) The Due Process Clause was violated when Blake was talked into waiving 11 years of time served after he plead guilty to Murder in the First Degree and after the initial reversal of the murder conviction by the WVSCA.
Refuse 5-0
37. SER Earl Walker, Jr. v. William S. Haines-Warden, No. 011126 (Filed 6/5/01)
Walker, pro se, filed a Petition for a Writ of Habeas Corpus in which he asserts the following assignments of error: (1) The State failed to recommend that Walker be given a one year sentence during the sentencing hearing; (2) Unlawfully induced guilty plea; (3) Ineffective Assistance of Counsel; (4) Conviction was obtained by the use of a coerced confession. Walker also filed a Motion for an Omnibus Habeas Corpus hearing.
Refuse 5-0
38. SER Ralph F. McClure v. WV Board of Probation and Parole, No. 010969 (Filed 5/10/01)
McClure filed a Petition for a Writ of Mandamus seeking to compel this Court to release him on parole. McClure asserts that the Parole Board wrongly denied him release on parole and asserts the following: (1) The Parole Board erred by not sending McClure copies of all documents used by the Parole Board at the Parole Hearing to determine if he was eligible for parole; (2) The Parole Board hearing was based upon false and fabricated incidents that did not pertain to the charges at hand; (3) The Parole Board arbitrarily and capriciously dwelled upon McClure’s past criminal record; (4) The Parole Board went beyond their authority when it ordered that personal property of the petitioner’s be confiscated after the parole hearing; (5) The Parole Board put too much emphasis on judicial and official sentiment.
Refuse 5-0
39. State of West Virginia v. James A. Lucas, No. 011225 (Filed 6/21/01)
Lucus filed an appeal of the denial a Motion to Vacate Judgement and a Motion for Judgment of Acquittal which the Marion County Circuit Court denied by Order on 4/25/01. Lucus asserts that he was wrongfully indicted due to the sole testimony of Detective Doris James, who committed perjury during her testimony before the Marion County Grand Jury.
Refuse 5-0
40. SER Michael Corriveau v. William Haines-Warden, No. 011125 (Filed 6/5/01)
Corriveau filed a Petition for a Writ of Mandamus seeking to compel this Court to compel William Haines to expunge all rule violations, disciplinary numbers S.M.C.C 00-225-J, 226-J and 227-J, from his record.
Refuse 5-0
41. SER Wendell Ash v. Howard Painter-Warden, No. 993449 (Filed 12/14/99)
Ash filed a Petition for a Writ of Habeas Corpus in which he asserts that he received inadequate care from the medical staff at Mount Olive Correctional Center, and asserts that the Mt. Olive Hospital Administrator, Thomas Hawkins, should provide him with full name and address of a nurse at Mt. Olive.
Refuse 5-0
42. SER Marilyn Seay v. James Liller-Superintendent, No. 011398 (Filed 7/6/01)
Seay filed a Petition for a Writ of Habeas Corpus in which she asserts the following: (1) The Pendleton County Circuit Court should release her from her placement at Potomac Highland Regional Jail; (2) Asserts that the Pendleton County Clerk’s office has failed to provide her with a copy of requested transcripts; and (3) Asserts that the her children should be returned to her.
Refuse 5-0