WEST VIRGINIA RECORD

Motion Docket
Wednesday, June 3

1. State of WV v. Thomas Lynn Bowman - 090275 - Thomas Bowman appeals his conviction for 7 counts of Sexual Assault in the First Degree; 7 counts of Sexual Assault in the Second Degree, 14 counts of Sexual Abuse by a Parent, Guardian or Custodian; 14 counts of Incest; and 1count of Using Obscene Matter to Seduce a Minor. He asserts that the circuit court erred by excluding certain evidence, admitting 404(b) evidence, not giving a missing witness instruction, and imposing a sentence that violates his right against Double Jeopardy.

2. Laurel Mountain Preservation Association, Inc. v. Public Service Commission of WV - 090600 - Intervenor below appeals Public Service Commission orders granting siting certificate to build an electric wholesale generating facility and associated interconnection facilities in Barbour and Randolph Counties and denying Intervenor's motion for reconsideration of the granting order.

3. State of WV v. Nathan Long - 090149 - Defendant appeals from his convictions following a jury trial on three counts of first degree sexual assault and six counts of sexual abuse by a custodian. Defendant raises evidentiary and procedural error below, in addition to challenging the sufficiency of the evidence.

4. James G. Clay and Michael R. Corbett v. WV Consolidated Public Retirement Board - 090356 - Petitioners James Clay and Michael Corbett appeal the circuit court's order affirming the decision of the Consolidated Public Retirement Board on the issue of loans from each petitioner's Teachers Retirement System Account.

5. Katherine L. Hoopengarner v. WV Consolidated Public Retirement Board - 090357 - Petitioner Katherine Hoopengarner appeals the circuit court's order affirming the decision of the Consolidated Public Retirement Board on the issue of a loan from petitioner's Teachers Retirement System Account.

6. Brian M. Powell v. Steven L. Paine, State Superintendent of Schools - 090359 - Petitioner, Brian M. Powell, appeals from a Kanawha County Circuit Court Order dated September 17, 2008, which denied petitioner's Motion for Entry of Proposed Order providing for remedies under his West Virginia Code §18A-2-2(c) continuing contract case, as well as reasonable attorney's fees. The lower court reasoned that the proposed order was beyond the scope of this Court's remand order in Powell v. Paine I.

7. State of WV v. Keith R. Jeffers - 090426 - Petitioner, Keith R. Jeffers, appeals his January 29, 2008, conviction of eight counts, including three counts of Murder in the First Degree Without the Recommendation of Mercy, one count of Attempted Murder in the First Degree, on count of Attempted Murder in the Second Degree, two counts of Malicious Assault, and one count of Burglary, as well as his sentences of three consecutive sentences of life without the possibility of parole.

8. State of WV v. Frank L. Ferguson - 090564 - Petitioner Frank L. Ferguson appeals from a February 19, 2009, Order sentencing him to the Recidivist Life Sentence following his conviction for the recidivism-triggering offenses of First Degree Arson and Conspiracy to Commit Arson, and the conviction by a Kanawha County Jury of having twice previously been convicted of a felony.

9. State of WV v. James Louis DeGasperin - 090523 - James Louis DeGasperin appeals his conviction for three counts of murder in the second degree and two counts of concealment of deceased human remains. He asserts several trial errors including that the court erroneously excluded expert testimony and evidence about a victim's past acts, that evidence found on his property and his statements should have been excluded because of a warrantless search, that W.Va. Code § 61-2-30 is unconstitutional, that he was subjected to double jeopardy, that he was denied a fair trial due to testimony by a police officer and photographs, that the court should have given a lost evidence adverse inference instruction, and insufficiency of the evidence.

10. Barbara K. Mott v.. Kenny Kirby and Frank P. Kirby, Jr. - 090436 - Defendants appeal from the circuit court's order entered in favor of plaintiff in this action to partition real estate following a bench trial. Defendants assert that the circuit court committed clear legal error and abused its discretion in the entry of its final order.

11. State of WV v. Andrew Alvarez - 090519 - Petitioner Andrew Alvarez appeals the sentence he received upon pleading guilty to robbery in the first degree and wanton endangerment, both felonies. He was sentenced consecutively for a total of 20 years, but argues that this is unfairly disproportionate to the lighter sentences imposed upon his co-defendants.

12. State of WV v. Thomas E. Leftwich - 090552 - Petitioner Thomas E. Leftwich was sentenced to life imprisonment without the possibility of parole for first degree murder and a consecutive term of not less than one nor more than five years for conspiracy to commit a felony.

Miscellaneous Motions Conference
Thursday, June 4

1. Petitioner in State ex rel. Lloyd's Inc. v. The Honorable Richard A. Facemire, No. 090578, seeks a writ of prohibition to prevent the enforcement of a circuit court injunction preventing petitioner from transferring, dissipating, and/or wasting assets.

2. Petitioner in State of West Virginia ex rel. Timothy Smith v. West Virginia Parole Board, No. 090569, seeks a writ of habeas corpus seeking review of the three-member panel of the Parole Board that revoked his parole.

3. Petitioner in State of West Virginia ex rel. Alyssa Massetti v. The Honorable Thomas A. Bedell, No. 090570, seeks a writ of prohibition to challenge an order that stayed plaintiff's claims and compelled her to commit such claims to arbitration.

4. Petitioner in Amos Martin v. The Honorable James Stucky, No. 090630, seeks a writ of prohibition to challenge an order that granted the defendant's motion for leave to file a third-party complaint and for a continuance to implead the Cleveland Clinic Foundation in this medical malpractice action.

Requests for Oral Presentation and Petitions for Appeal
Thursday, June 4

1. Paula Durst, in her capacity as Administrator of the Estate of Michael Durst v. The Board of Education of the County of Mason - No. 090482. Petitioner appeals from the circuit court's order affirming the Grievance Board's denial of the grievance filed by petitioner's husband prior to his death. The decedent had challenged his dismissal as a probationary school bus operator due to his temporary physical inability to work because of illness. Petitioner seeks a reversal of the decisions of the circuit court and the Grievance Board, payment in the amount of the life insurance policy carried by petitioner's husband until April 2006, interest on all monetary sums, costs, and reasonable attorney's fees.

2. State of West Virginia ex rel. Donald Hicks, Clerk of the McDowell County Commission v. A. Ray Bailey and the McDowell County Commission - No. 090557. Petitioners challenge all orders entered by the circuit court in this election mandamus action. Petitioners seek to have respondent declared constitutionally ineligible to hold a seat on the county commission under the West Virginia Constitution on the alleged basis that he resides in the same magisterial district as one of the other two county commissioners.

3. Joshua Scott Cunningham v. Thomas L. McBride, Warden, Mount Olive Correctional Complex - No. 090568. Petitioner appeals from the circuit court's order denying him habeas relief. Petitioner raises various issues related to the alleged ineffective assistance of his trial counsel.

4. Scott McMahon and Karen John, and others similarly situated v. Advance Stores Company, Incorporated, dba Advance Auto Parts, and Donn Free - No. 090587. Defendants appeal from the circuit court's order granting partial summary judgment in favor of plaintiffs and finding that defendant company would be required to abide by its warranty notwithstanding the fact that the person attempting to assert the warranty might not have been the original purchaser. The circuit court certified this order under Rule 54(b) and stated that it was intended to be a final and appealable order.

5. State of West Virginia v. Jamal Bacote - No. 090612. Defendant appeals from his sentencing following his guilty plea to the felony offense of delivery of a Schedule II controlled substance. Defendant challenges the circuit court's denial of his request for an alternative sentence.

6. Thomas Wilson Casto v. P.S. Marion, in his individual and official capacity as a police officer for the West Virginia State Police, and the West Virginia Department of Military Affairs and Public Safety, a.k.a. The West Virginia State Police, an agency of the State of West Virginia - No. 090620. Plaintiff appeals from the circuit court's order granting defendants' motion to dismiss in this action for damages against the investigating officer, as well as the West Virginia State Police on the basis of vicarious liability. Plaintiff alleges that the circuit court erred in dismissing this action on the basis of qualified and/or sovereign immunity.

7. Pamela Pumpa v. Martha Yeager Walker, Secretary, West Virginia Department of Health and Human Resources, Thomas E. Arnett, State Hearing Officer, State Board of Review, and Erika Young, Chairman Board of Review - No. 090621. Petitioner appeals from the circuit court's order upholding the order of dismissal entered by the Board of Review, without a fair hearing, following DHHR's denial of petitioner's request for certain medical equipment and DHHR's failure to provide her with a reasonable and meaningful procedure for requesting medical equipment not on the State's exclusive list of pre-approved items.

8. State of West Virginia v. Dobbs - No. 090487. Jody DeWayne Dobbs appeals his conviction for sexual abuse in the first degree and sexual abuse by a parent. He alleges, inter alia, multiple instances of improper prosecutorial comments, evidentiary error, that two witnesses were not competent to testify and were not administered the required oath, that witnesses who purported to give expert opinions gave testimony that should have been excluded, and plain error or, alternatively, ineffective assistance of trial defense counsel.

9. John Marra, III, Individually and as parent, guardian, and next friend of John Marra, IV v. Brian Keith Jones and Allstate Insurance Company - No. 090309. Plaintiff John Marra, III, individually and on behalf of his minor son, appeals the circuit court's order granting summary judgment to defendant Allstate Insurance Company and the court's order denying his motion to alter or amend. The court found that plaintiff did not have underinsured motorist coverage, but plaintiff argues that Allstate failed to provide him with a sufficient offer of coverage.

10. Brandy Pingley, Jonathan Pingley, Michael McGee, Brittany McGee, Courtney McGee, Trinity Beane v. Huttonsville Public Service District - No. 090622. Plaintiffs appeal the circuit court's order granting summary judgment for the defense in their lawsuit asserting damages resulting from a sewer system failure. They argue that the court should have permitted them some discovery.

11. John Brian Harrison v. Joseph Cicchirillo, Commissioner, West Virginia Division of Motor Vehicles - No. 090634. The DMV Commissioner appeals the circuit court's order which modified the penalty in a driver's license revocation based upon criminal DUI conviction. The court ruled that the revocation period could not be enhanced by an earlier DUI that occurred during a time period when the DMV did not consider "no contest" dispositions to be convictions for administrative purposes.

12. Kenneth E. Reese, Jr. v. Joseph Cicchirillo, Commissioner, Department of Transportation - No. 090585. The DMV Commissioner appeals the circuit court's order which modified the penalty in a driver's license revocation based upon criminal DUI conviction. The court ruled that the revocation period could not be enhanced by an earlier DUI that occurred during a time period when the DMV did not consider "no contest" dispositions to be convictions for administrative purposes.

13. State of West Virginia v. Christopher Scott Hess - No. 090635. Christopher Scott Hess appeals his conviction for felony malicious assault. He asserts that the circuit court erred in allowing the testimony of a late disclosed witness, in allowing certain preliminary hearing testimony to be used at trial, in giving a flight instruction, and in refusing to give a self-defense instruction.

14. State of West Virginia ex rel. Stephen P. Bowers v. Tom Scott, Administrator, Southwestern Regional Jail; Wyetta Fredericks, Executive Director, West Virginia Regional Jail and Correctional Facility Authority - No. 090636. The State appeals the circuit court's order granting Stephen P. Bowers petition for habeas corpus with prejudice, prohibiting the State from a retrial. In 2003 Mr. Bowers was convicted of three counts of sexual abuse by a custodian, one count of sexual abuse in the first degree, and two counts of sexual abuse in the third degree. In the habeas order, the circuit court found that Mr. Bowers was prejudiced by receiving ineffective assistance of trial counsel and by improper comments of the prosecutor.

15. State of West Virginia v. William R. Ward - No. 090658. William R. Ward appeals his conviction for two counts of first degree sexual assault, two counts of incest, and two counts of sexual abuse by a parent, guardian, or custodian. He asserts erroneous admission of 404(b) evidence, that the trial should not have proceeded in his absence, that the State failed to prove he was a custodian of the alleged victim, that the State failed to prove a necessary element of sexual assault, that under WV law he could not have committed the crime of incest with respect to this alleged victim, and that he was denied the effective assistance of trial counsel.

16. Fox Lumber Company, Inc. v. Doyle Fincham and Mary Fincham; Douglas E. Fincham; Catherine S. Hammonds and Jeffrey A. Hammonds; Michael S. Fincham and Ricky A. Fincham - No. 090676. Petitioners, Doyle and Mary Fincham, appeal from an August 5, 2008, Order in which the Randolph County Circuit Court granted the Respondent, Fox Lumber Company, Inc., a thirty-foot right-of-way for the purpose of hauling logs over a road on the petitioners' property.

17. State of West Virginia ex rel Stanley Demere v. David Ballard, Warden - No. 090677. Petitioner Stanley Demere appeals the Pendleton County Circuit Court's denial of his request for Writ of Habeas Corpus relief. Petitioner seeks to have this Court set aside or vacate his prior conviction of murder.