November 3, 2005 Writ Conference

West Virginia Supreme Court of Appeals

Writ Conference
Thursday, November 3, 2005

1. State of West Virginia v. Brian Scott France, No. 051786 (Filed 8/19/05)
Defendant, convicted by guilty plea of first degree arson and sentenced to 20 years in prison, appeals circuit court order denying Defendant’s motion for probation, home confinement or alternative sentencing.

Refuse 5 - 0

2. State of West Virginia v. Don Eugene Sampson, No. 051817 (Filed 8/22/05)
Defendant, convicted by jury of attempted second degree murder, malicious wounding, and obstruction of an officer and sentenced to consecutive terms of 2-10 years on the malicious wounding and 1-3 for attempted second degree murder, appeals, arguing that
the circuit court erred and abused its discretion by refusing to allow the Defendant to cross-examine the alleged victim about threats of bodily harm from her drug dealer at trial where the defense theory was that another person harmed the alleged victim thereby violating Defendant’s Sixth Amendment right to Confrontation of State Witnesses and by refusing to allow the Defendant to testify about witnessing threats made to the alleged victim by her drug dealer where the defense theory was that another person harmed the alleged victim thereby violating Defendant’s Fifth Amendment Right to Due Process.

Refuse 5 - 0

3. SER Charles A. Shamblin v. Mark Williamson, Warden, No. 051012 (Filed 5/9/05)
Defendant, convicted by guilty plea of violating a protective order, domestic assault and malicious wounding, appeals circuit court order denying his habeas corpus petition, following omnibus hearing, arguing that the circuit court erred when it ruled that the
Defendant’s plea was voluntary and that his trial counsel was not ineffective.

Refuse 5 - 0

4. SER Paul David Hill v. Thomas McBride, Warden, No. 051239 (Filed 6/7/05)
Defendant, convicted of First Degree Sexual Assault by plea and sentenced to serve 15-35 years in prison, appeals circuit court order denying his petition for writ of habeas corpus, arguing that he was denied an omnibus evidentiary hearing and that the circuit court erred in denying his claims of ineffective assistance of counsel.

Returnable below for omnibus hearing & appointment of counsel.

5. Rebecca Christian Cline v. William Yurcina, Assoc. Warden, No. 051422 (Filed 6/24/05)
Defendant, sentenced to life without mercy for First Degree Murder as well as other crimes, appeals circuit court order denying habeas corpus relief, arguing that the circuit court erred in dismissing the petition based upon an erroneous conclusion that all the assignments of error in the habeas petition had already been raised on appeal.

Refuse 3 - 2
( Albright, C. J., Starcher, J. )

6. In Re: Adoption of Dylan, Dalton, Jodi & Leslie L., No. 051598 (Filed 7/26/05)
Natural father and stepmother of children appeal circuit court order dismissing their petition to allow termination of natural mother’s parental rights based upon abandonment and to allow stepmother to adopt children, arguing that the circuit court erred in finding that there was not enough evidence that the Mother/respondent had abandoned her children and thus dismissing the adoption petition of the Petitioner/stepmother and natural father.

Refuse 5 - 0

7. Donna Holley, as guardian and Next Friend of Chelsey Holley v. ReliaStar Life Insurance, No. 051739 (Filed 8/18/05)
Insurer appeals circuit court order granting summary judgment to plaintiff in underlying declaratory judgment action involving an accidental death policy, arguing that the circuit court erred in granting summary judgment based upon finding that alcohol-related motorcycle wreck which killed decedent driver was an “accident” within the relevant policy language.

Refuse 5 - 0

8. Doyle M. Cone v. Ford Motor Co., No. 051789 (Filed 8/19/05)
Plaintiff appeals circuit court order dismissing this wrongful death action without prejudice for lack of venue and forum non conveniens.

Refuse 5 - 0

9. Barbara J. Born, et al. v. Longview Power/Monongalia County Development Authority, No. 051851 (Filed 8/26/05)
Plaintiffs below appeal circuit court order granting summary judgment for Defendants below in their injunctive and declaratory relief action seeking review of agreements between a power plant and county officials relating to payments in lieu of taxes.

Refuse 3 - 2
( Albright, C. J., Starcher, J. )

10. In the Matter of: Richard, Robyn, and Misty L., No. 051818 (Filed 8/23/05)
Mother appeals circuit court order terminating her parental rights. In a jointly filed appeal, Stepfather appeals termination of his custodial rights to children.

Refuse 5 - 0

11. In the Matter of: Selina, Kristy and Jessica G., No. 051997 (Filed 9/14/05)
Father appeals circuit court terminating his parental rights, arguing that the circuit court erred as a matter of law when the Circuit Court denied the children’s counsel’s motion pursuant to WV Code Section 49-6-5(c) that a period of improvement should be granted; when the circuit court abused its discretion by terminating the parental rights of Father to his three children for the acts alleged and proved by admissible evidence when each expressed a clear and unequivocal desire to return to the home of their parents, and neither the children’s counsel nor the GAL nor the DHHR wanted Termination of Parental Rights without a period of improvement; when the circuit court abused its discretion when the Court provided restricted parent/children contact after termination of parental rights; and when the circuit court abused its discretion by prematurely terminating the Father’s post-adjudicatory period of improvement.

Refuse 4 - 1
( Starcher, J. )

12. In the Matter of: Selina, Kristy and Jessica G., No. 051998 (Filed 9/14/05)
Mother appeals circuit court terminating her parental rights, arguing that the circuit court abused its discretion by prematurely terminating the mother’s post-adjudicatory improvement period, whether the circuit court abused its discretion by terminating the
parental rights of the mother, whether the circuit court ruled incorrectly as a matter of law in denying the children’s motion pursuant to W.Va Code Section 49-6-5(c) that a post-dispositional period of improvement should be granted, and whether the circuit
court abused its discretion by restricting the parent/ children’s contact after the termination of parental rights.

Refuse 4 - 1
( Starcher, J. )

13. In the Matter of: Selina, Kristy and Jessica G., No. 051999 (Filed 9/14/05)
Guardian ad litem for children in abuse and neglect case appeals circuit court terminating the parents’ parental rights, arguing that the circuit court abused its discretion when it terminated the parental rights of both parents in this case.

Refuse 4 - 1
( Starcher, J. )

14. In the Matter of: Selina, Kristy and Jessica G., No. 052000 (Filed 9/14/05)
Counsel for children in abuse and neglect case appeals circuit court terminating the parents’ parental rights, arguing that the circuit court erred by not giving proper consideration to the wishes of a child fourteen years of age or older or otherwise of an age of discretion as determined by the court, regarding the permanent termination of parental rights; that the circuit court erred by terminating the parental rights in this matter in that same was not supported by the evidence; the circuit court erred by denying a joint motion by the parties for an improvement period as an alternative to disposition; the circuit court erred by restricting parent/child contact after the termination of parental rights; the circuit court erred by violating judicial cannons and standards of professional conduct; and whether the circuit court erred by not recognizing the psychologist/ client privilege when the same was invoked by the children.

Refuse 4 - 1
( Starcher, J. )

15. State of West Virginia v. Brian Leon Hamlet , No. 051601 (Filed 7/26/05)
The Defendant requests an appeal of his jury conviction for Grand Larceny and Fleeing from the police. He was sentenced to 1-10 years for the grand larceny and 30 days for the fleeing. He was later given credit for some time served and place on probation
for three years.

Refuse 5 - 0

16. SER Sammy Lee Davis, II v. William Haines, Warden, No. 051240 (Filed 6/7/05)
Petitioner seeks an appeal of the circuit court’s (December 14, 2004) order that denied his Writ of Habeas Corpus. The petitioner requests that this Court reverse the circuit court and remand the case for re-sentencing, or to mold the sentencing to protect the petitioner’s rights under the cruel and unusual punishment clauses and sentence the petitioner to alternate sentencing.

Refuse 5 - 0

17. SER William B. Becton v. William Fox, Warden, No. 051258 (Filed 6/8/05)
The Petitioner request an appeal from the circuit court’s (February 23, 2005) order that denied his Habeas Corpus petition with prejudice. He seeks a sentence of time served or, in the alternative, an Omnibus Hearing.

Deferred

18. Marriage of: Deborah C. Moore v. Terry J. Moore, No. 051528 (Filed 7/14/05)
The Petitioner/Husband seeks an appeal of the circuit court’s order that upheld the family court’s order granting a final divorce.

Refuse 5 - 0

19. SER David C. Collins, III v. Evelyn Seifert, Warden.,No. 051325 (Filed 6/14/05)
Petitioner seeks a Writ of Habeas Corpus as a result of an unfavorable parole board hearing, to have counsel appointed in this matter and to have a Habeas Corpus hearing.

Refuse 5 - 0

20. SER Marcus Cockerham & Ronald T. Williams v. WV Div. of Corrections, No. 051648 (Filed 6/1/05)
Petitioners seek a Writ of Mandamus to compel payment of a debt by the WV Division of Corrections.

Deferred

21. SER Jerry L. Bender v. Braxton County Circuit Court, No. 051327 (Filed 6/10/05)
Petitioner seeks a copy of transcripts and court orders.

Refuse 5 - 0

22. In the Matter of: Betty & Justin M.; Joseph & Kenneth D., No. 051815 (Filed 8/23/05)
Petitioner/Mother appeals the March 29, 2005, circuit court’s order that terminated her parental rights and she seeks a reversal of that decision and requests a dispositional improvement period.

Refuse 5 - 0

23. In the Matter of: Acasha, Patricia and Alex H., No. 052002 (Filed 9/14/05)
The Petitioner/Stepfather seeks an appeal of the circuit court’s (June 2,2002) order that found that he sexually abused Acasha H.

Refuse 5 - 0