October 30, 2003 Writ Conference

West Virginia Supreme Court of Appeals

Writ Conference
Thursday, October 30, 2003

1. State of West Virginia v. Anita M. Harris, No. 031142 (Filed 6/4/03)

Defendant appeals circuit court order sentencing her to one to ten years in prison for jury conviction of three offense shoplifting and ordering that the sentence run consecutive to any future sentences from other jurisdictions, arguing that the circuit court lacked authority to issue a prospective consecutive sentence and lacked authority to order payment of fines to the State in the amount of the costs to extradite her from Alaska.

Refuse 5-0

2. State of West Virginia v. Steve H., Juvenile, No. 031424 (Filed 7/10/03)

Juvenile status offender appeals circuit court order, seeking release from placement in out of state school for juveniles with delinquency problems.

Grant 5-0

3. State of West Virginia v. Shannon Johnson, No. 031549 (Filed 7/10/03)

Criminal defendant appeals circuit court order denying her motion to modify her sentence to give credit for time served.

Grant 5-0
Unless Sooner Mooted

4. State of West Virginia v. David D. Jeffrey, No. 031577 (Filed 7/25/03)

Defendant appeals circuit court order denying his motion for reconsideration of the order sentencing him to pay full restitution, arguing that as he was only one of three co-defendants that he should not have been ordered to pay more than a one-third share of the restitution.

Refuse 5-0

5. State of West Virginia v. Lawrence W. Nelson, No. 031784 (Filed 8/11/03)

Defendant appeals circuit court order denying his motion to withdraw guilty plea.

Refuse 5-0

6. State of West Virginia v. Dorsie Blosser, No. 031744 (Filed 8/14/03)

Defendant appeals circuit court order denying his motion for reconsideration of sentence and release upon home confinement, arguing that the sentence imposed was excessive and disproportionate to the offense.

Refuse 5-0

7. State of West Virginia v. Gregory D. Cummings, No. 031752 (Filed 8/15/03)

Defendant, who entered guilty plea to one count of third offense DUI, appeals circuit court order sentencing him to an indeterminate 1-3 years sentence, seeking credit for time served prior to conviction because his arrest in this case triggered a revocation of his home confinement on a previous conviction.

Refuse 5-0

8. State of West Virginia v. Denis Shawn Sullivan, No. 031765 (Filed 8/15/03)

Defendant appeals circuit court order denying his motion for reconsideration of his indeterminate sentence of 10-25 years based upon guilty plea to one count of second degree sexual assault, arguing that his guilty plea was not voluntary or knowingly made based upon failure of the trial court to properly question him at the plea hearing and based upon ineffective assistance of counsel.

Refuse 5-0

9. State of West Virginia v. Rance Mitchem, No. 031801 (Filed 8/15/03)

Defendant, sentenced to 45 years in prison based upon guilty plea to aggravated robbery, appeals circuit court order sentencing him, arguing that he should have been sentenced to Anthony Center and that his sentence was excessive.

Refuse 5-0

10. State of West Virginia v. John Kelly Williams, No. 031769 (Filed 8/18/03)

Defendant appeals circuit court order finding that he violated his probation and imposing his original sentence of twelve months for a misdemeanor charge of failure to meet his child support obligation.

Refuse 5-0

11. SER Paul R. Robinson v. Brooke County Circuit Court No. 021250 (Filed 5/29/02)

Robinson seeks issuance of a writ of mandamus against the Circuit Court of Brooke Cty. to provide a transcript of the grand jury proceeding from his 1985 conviction, based on a plea bargain, on three (3) counts of first degree sexual assault. The same issue was raised in the form of an appeal in WVSCA Case No. 021811 and was refused by vote of 5-0 by Court on 3-7-03.

Refuse 5-0

12. Rush Runyon v. Mingo County Circuit Court, No. 030483 (Filed 3/19/03)

Criminal defendant, who pled guilty to sexual offenses involving his stepchildren in 1995, seeks issuance of writ of prohibition against circuit clerk, arguing that the clerk improperly notified warden of filing fee in civil case which led to prison’s incremental removal of funds from his prison account for payment of such filing fee.

Refuse 5-0

13. SER Ronald L. Calloway v. Kanawha County Circuit Court, No. 030558 (Filed 3/21/03)

Defendant seeks issuance of a writ of mandamus against circuit court to obtain omnibus hearing previously ordered by this Court.

Grant 4-1
(McGraw, J.)
Unless Sooner Mooted

14. SER Lawrence E. Scible v. Thomas McBride, Warden, No. 030557 (Filed 3/25/03)

Defendant seeks issuance of a mandamus challenging the placement of additional prisoner in his cell which he asserts is designed for single occupancy.

Deferred

15. SER Donald E. Good v. Tod Kaufman, Judge, No. 030617 (Filed 4/1/03)

Defendant seeks issuance of a writ of mandamus against circuit court, seeking ruling on motion to amend sentence and commitment order.

Grant 5-0
Unless Sooner Mooted

16. SER Charles G. Plantz v. Thomas McBride, Warden, No. 030671 (Filed 4/2/03)

Defendant, serving life with mercy, seeks issuance of a writ of mandamus challenging the refusal of facility to place him in a single cell.

Deferred

17. SER Danny Goodman v. McDowell County Circuit Court, No. 030783 (Filed 4/16/03)

Defendant, convicted of sexual offenses, seeks issuance of mandamus against circuit court to obtain ruling on motion to reduce sentence and ruling in his underlying habeas corpus petition.

Refuse 5-0
moot

18. SER Donald Layne v. Hon. Mark Karl, Judge, No. 030785 (Filed 4/16/03)

Prisoners seek issuance of writ of mandamus against circuit court to obtain ruling on their pending petition for mandamus.

Grant 5-0
Unless Sooner Mooted

19. SER Darrell W. Brown v. Thomas McBride, Warden, No. 030868 (Filed 4/25/03)

Defendant, convicted by guilty plea of murder and aggravated robbery, seeks issuance of a writ of mandamus against circuit court to obtain hearing and ruling in underlying habeas corpus petition.

Grant 5-0
Unless Sooner Mooted

20. SER Timothy W. Ward, Sr. v. Cabell County Circuit Clerk, No. 031160 (Filed 5/27/03)

Defendant seeks issuance of writ of mandamus against circuit court seeking ruling on motion for appointment of counsel.

Refuse 5-0

21. SER Kevin A. Boxley v. Jefferson County Circuit Court, No. 031290 (Filed 5/29/03)

Defendant seeks issuance of a writ of mandamus against circuit court to rule on motions for appointment of counsel.

Refuse 5-0
moot

22. SER Bobby E. Roddy v. Mingo County Circuit Court, No. 031149 (Filed 6/3/03)

Petitioner, pro se, seeks issuance of a writ of mandamus to require former spouse to provide him with items of personal property and vehicle which circuit court ordered him to receive in their divorce or in the alternative, seeks issuance of mandamus against lower court to rule upon the mandamus he filed there seeking the same relief.

Grant 5-0
Unless Sooner Mooted

23. In the Matter of: Emily, Terri, Angel & Rusty S., No. 031521 (Filed 7/22/03)

Mother appeals circuit court order arguing that there was insufficient evidence to justify termination.

Refuse 5-0

24. In the Matter of: Brittany M., No. 031533 (Filed 7/23/03)

Stepfather appeals circuit court order terminating his custodial rights to child, arguing that there was insufficient evidence to support termination and disposition and that the circuit court erred in denying his motion for in camera testimony of the child and for independent sexual abuse evaluation.

Refuse 5-0

25. In the Matter of: Tiffany P., Bobby P., Alexandria F., No. 031743 (Filed 8/14/03)

Father appeals circuit court order terminating his parental rights.

Grant 3-2
(Davis, J., Maynard, J.)

26. In the Matter of: Wesley M., Chelsey H., and Gregory W., No. 031760 (Filed 8/15/03)

Mother appeals circuit court order terminating her parental rights.

Refuse 5-0

27. In the Matter of: Hunter D., No. 031793 (Filed 8/19/03)

Father appeals circuit court order denying his motion to reopen abuse and neglect case.

Refuse 5-0

28. In the Matter of: Joseph H., No. 031846 (Filed 8/22/03)

Father appeals circuit court order terminating his parental rights.

Refuse 5-0

29. In the Matter of: Gordan G., III and Nicholas G., No. 031879 (Filed 8/27/03)

DHHR appeals circuit court order dismissing amended petition for abuse and neglect for insufficient evidence.

Grant 4-1
(Starcher, C. J.)

30. In the Matter of: Brianna C., Brian C. and Zoe C., No. 031992 (Filed 9/9/03)

Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred in failing to grant her motion for post-adjudicatory improvement period and in termination as there were less drastic alternatives available for disposition.

Refuse 5-0

31. State of West Virginia v. Franklin L. Sutherland, No. 030645 (Filed 4/7/03)

Petitioner/Defendant appeals the sentence imposed upon him following his guilty plea to charges of fleeing with DUI and battery upon a police officer.

Refuse 5-0

32. State of West Virginia v. Stanley M. Myers, No. 030979 (Filed 5/9/03)

Petitioner/Defendant appeals assessment of court costs, particularly costs for the jury in his reversed 1996 conviction.

Grant 5-0

33. Ada Miller et. al. v. John H. King, No. 030134 (Filed 1/23/03)

Petitioners appeal circuit court order dismissing their complaint alleging that Respondent’s "deliberate, willful, malicious, outrageous, and unconscionable course of wrongful and unconstitutional conduct" caused monetary damage to Petitioners.

Refuse 5-0

34. Annina L. Tomlin v. L. Wayne Hinkle & Beverly Hinkle, No. 030847 (Filed 4/25/03)

Petitioners/Defendants appeal verdict in civil suit in Greenbrier County, which found Respondent/Plaintiff to be the owner of two-tenths of an acre of land by adverse possession.

Refuse 5-0

35. Paul Ponzelli v. Lynn Schwesig v. M. Virginia Rosenbaum & Earl Cooper, No. 030850 (Filed 4/25/03)

Petitioners appeal entry of judgment against them as third party defendants in a property dispute. Petitioners prepared a "house location survey" of one of the properties in dispute.

Refuse 5-0

36. SER Thomas L. Lewis v. Howard Painter, Warden, No. 030959 (Filed 5/8/03)

Petitioner/Inmate appeals denial of petition for writ of habeas corpus wherein the Circuit Court of Putnam County found that Petitioner/Inmate had not demonstrated that prior habeas counsel was ineffective. Petitioner/Inmate also raises the issue that his sentence is illogical and ineffective in that he will have discharged his sentence long before he is eligible to be considered for parole.

Refuse 3-2
(Maynard, J., Albright, J.)

37. Debbie L. Allen (Popp) v. Johnny L. Allen, No. 031057 (Filed 5/20/03)

Petitioner appeals entry of divorce order which grants him one dollar in alimony per year. Petitioner seeks alimony in kind in the form of a portion of Respondent’s equitable interest in the marital property.

Refuse 5-0

38. SER James Kenneth White v. William Frederick, Adm., No. 030559 (Filed 3/20/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus under this Court’s original jurisdiction alleging that his conviction was obtained by an unlawfully induced guilty plea, that he was denied effective assistance of counsel, that the trial court abused its discretion in failing to appoint counsel for a probation violation, and failure of the prison to credit him for time served.

Refuse 5-0

39. SER Sanders E. Brown v. Thomas McBride, Warden, No. 030863 (Filed 4/24/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus enjoining the Warden of Mount Olive Correctional Center from "double bunking" inmates.

Deferred

40. SER Robert E. Lake v. William S. Haines, Warden, No. 030869 (Filed 4/25/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging that the failure of the grand jury to vote upon the text of the indictment is such a fundamental error so compromising the integrity of the grand jury proceedings as to constitute prejudice per se, and the indictment and resulting conviction be considered void.

Refuse 5-0

41. SER Alan Keith Burks v. Evelyn Seifert, Warden, No. 030908 (Filed 4/28/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus which would effect a reduction of his sentence.

Refuse 5-0

42. SER David Shanholtz v. Thomas McBride, Warden, No. 030935 (Filed 4/28/03)

Petitioner/Inmate seeks the issuance of a writ of habeas corpus in the form of a sentence reduction.

Refuse 5-0

43. SER Jason D. Manns v. William Haines, Warden, No. 030906 (Filed 5/2/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus in hopes that this Court will grant his Motion for Reduction of Correction of Sentence.

Refuse 5-0

44. SER Joseph Mansi v. Jerry Dietrick, Administrator, No. 030903 (Filed 5/5/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus in hopes that this Court will reduce his sentence.

Refuse 5-0

45. SER William F. Mayo v. Clark Sinclair, Sheriff, No. 031015 (Filed 5/8/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus so that he might be moved to another facility.

Refuse 5-0

46. SER Larry A. Bias v. Timothy Bowen, Administrator, No. 031020 (Filed 5/8/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus seeking credit for time served.

Refuse 5-0

47. SER Robert M. Barker v. William Haines, Warden, No. 031031 (Filed 5/12/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging that he is being denied proper medical care.

Refuse 5-0

48. SER Eugene Blake v. Thomas McBride, Warden, No. 031050 (Filed 5/16/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging violation of the double jeopardy clause, failure to credit time served under his previous conviction for the same crimes at interest here, and incompetency at time of entering plea.

Deferred

49. SER Elmer Castle v. Edward Rudloff, Administrator, No. 031236 (Filed 6/11/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging loss of rights because he is not a DOC prisoner, loss of rights to a proper education, and loss of rights to proper exercise.

Refuse 4-1
(Albright, J.)

50. SER Dewaine C. King v. Thomas McBride, Warden, No. 031371 (Filed 6/12/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging that he is not being given proper medical care.

Refuse 5-0

51. SER Vincent Allen v. William Fox, Warden, No. 031552 (Filed 6/24/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging that he has not been properly credited for time served.

Refuse 5-0

52. SER Charles W. Fluharty v. Hancock County Circuit Court, No. 030941 (Filed 4/30/03)

Petitioner/Inmate seeks issuance of writ of mandamus to compel the Circuit Court of Hancock County to provide Petitioner/Inmate with a copy of his transcripts and case file and to dispose of Petitioner/Inmate petition for writ of habeas corpus.

Refuse 5-0
moot

53. SER Kenneth Eugene Elliott v. Kanawha Co. Circuit Court, No. 030958 (Filed 4/30/03)

Petitioner seeks issuance of writ of mandamus to compel the Circuit Court of Kanawha County to provide Petitioner an opportunity to be heard on his previously dismissed medical malpractice suit.

Refuse 5-0

54. SER Melvin F. Delawder v. Workers’ Compensation Division, No. 031040 (Filed5/12/03)

Petitioner seeks issuance of writ of mandamus to compel Workers’ Compensation Division to pay him benefits.

Grant 5-0
Unless Sooner Mooted

55. SER George W. Eplin v. Lincoln County Circuit Court, No. 031022 (Filed 5/13/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Lincoln County to provide Petitioner/Inmate with requested copies of transcripts.

Deferred

56. SER Mary Ann Haught (Weekley) v. Tyler Co. Circuit Co., No. 031058 (Filed 5/20/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Tyler County to release to Petitioner/Inmate a copy of her case file.

Refuse 5-0

57. SER Jerry V. Bolin v. Jackson County Circuit Court, No. 031140 (Filed 6/2/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Jackson County to rule on Petitioner/Inmate petition for writ of habeas corpus.

Refuse 5-0
moot

58. SER Herbert Midkiff v. Thomas McBride, Warden, No. 031150 (Filed 6/3/03)

Petitioner/Inmate seeks issuance of writ of mandamus to compel the Warden of the Mount Olive Correctional Center to place Petitioner/Inmate in a single occupancy cell.

Deferred

59. SER Mark Riley v. Evelyn Seifert, Warden, No. 031173 (Filed 6/4/03)

Petitioner/Inmate seeks issuance of writ of mandamus to compel the prison to give Petitioner/Inmate a paying job so that he can get a television for his cell.

Refuse 5-0

60. SER James Dale Duncan v. Kanawha County Circuit Court, No. 031226 (Filed 6/11/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Kanawha County to produce copies of transcripts as requested by Petitioner/Inmate.

Refuse 5-0

61. SER James Dale Duncan v. Kanawha County Circuit Court, No. 031286 (Filed 6/17/03)

Petitioner/Inmate seeks issuance of writ of mandamus compelling the Circuit Court of Kanawha County to produce copies of transcripts as requested by Petitioner/Inmate.

Refuse 5-0
moot

62. SER 1Starr Dalton v. McDowell County Circuit Court, No. 031292 (Filed 6/13/03)

Petitioner seeks issuance of writ of mandamus to compel the Circuit Court of McDowell County to abide by Petitioner/Inmate’s plea agreement wherein the State agreed to a determinate sentence of eight years. (It was later discovered, however, that the correct sentence for nonaggravated robbery was an indeterminate sentence of five to eighteen years.)

Refuse 5-0

63. In the Matter of: Christopher P. and Samuel P., III No. 031517 (Filed 7/21/03)

Petitioner/Mother seeks clarification of her visitation rights following the termination of her custodial and guardianship rights.

Grant 5-0

64. In the Matter of: Chris S., Megan S., and Ashley S., No. 031532 (Filed 7/23/03)

Petitioner/Mother appeals the denial of her Motion for an Improvement Period and the circuit court’s finding that she had engaged in the sexual abuse of her children and stepchildren.

Refuse 5-0

65. In the Matter of: Brandon E., No. 031537 (Filed 7/24/03)

Petitioner/Mother appeals the termination of her parental rights and the denial of her motion for post-termination visitation with her son.

Refuse 5-0

66. In the Matter of: Brittany E., No. 031538 (Filed 7/24/03)

Petitioner/Mother appeals termination her parental rights, arguing that the circuit court erred in refusing to return Brittany to the care, custody, and control of Petitioner/Mother upon her showing compliance with and completion of the terms and conditions of the post-adjudicatory improvement period.

Refuse 5-0

67. SER Thomas Casey v. William Haines, Warden, No. 031081 (Filed 5/23/03)

Petitioner/Inmate seeks issuance of writ of habeas corpus alleging that he was wrongfully denied parole.

Deferred

68. SER Walter F. Agee v. Mineral County Circuit Court, No. 031147 (Filed 5/15/03)

Petitioner/Inmate seeks issuance of writ of mandamus to compel the Circuit Court of Mineral County to rule on Petitioner/Inmate’s pending motions for appointment of appellate counsel and expansion of appeal filing time frame.

Refuse 5-0

69. Richard A. Catlett, Jr., et. al. v. ITW Devcon Corp., et. al., No. 031010 (Filed 5/13/03)

Plaintiffs below appeal circuit court order granting summary judgment to the various defendants to their personal injury lawsuit which was based upon allegations of harm due to chemicals from products utilized in splicing conveyor belts in the coal mining industry.

Refuse 5-0

70. SER Albert Lakatos v. Hon. Robert Stone, No. 030998 (Filed 5/9/03)

Defendants in underlying property dispute seek issuance of a writ of mandamus to require ruling on motions for summary judgment and issuance of a writ of prohibition against circuit court to end litigation of the action against them.

Refuse 5-0