May 13, 2009
1. Freddy S. Campbell v. Stephen M. DeWalt, Warden, Federal Medical Center, Lexington, Kentucky - No. 073752. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. The circuit court held that a jurisdictional requirement for the issuance of a writ of habeas corpus is that the petitioner be incarcerated under a sentence of imprisonment for the conviction being challenged. Because petitioner had already served the entire sentence imposed upon him pursuant to the conviction that was being attacked, the circuit court denied relief. Refuse 5- 0
2. Barbara K. Mott v. Frank P. Kirby, Sr., LLC, Kenny Kirby and Frank P. Kirby, Jr. - No. 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. Accept to Motion Docket
3. Pam McKinney, as guardian and next friend of Stephanie McKinney, an infant, Dan McKinney and Pam Kinney, individually v. Jimmie Souder, John Anderson, and Appalachian Power Company d/b/a American Electric Power - No. 090380. Plaintiffs appeal from the circuit court’s order denying their motion for a new trial following a jury verdict in favor of defendant Anderson in this action arising out of an automobile accident. Plaintiffs assert that the circuit court erred in giving defendant’s jury instruction on sudden emergency. Plaintiffs seek a new trial as to defendant Anderson. Refuse 3-1, Workman, Benjamin, C. J. not participating
4. Stephanie Clark v. Martha Walker, Secretary of DHHR, Erika H. Young, Chair, Board of Review for the WV DHHR, and Thomas Arnett, State Hearing Officer for the WV DHHR - No. 090480. Secretary Walker appeals from the circuit court’s order reversing the Board of Review’s administrative decision finding that claimant did not meet the medical eligibility criteria for the Mentally Retarded/Developmentally Delayed Home and Community-based Waiver Program. Secretary Walker raises issues related to whether W.Va. Code §53-3-3 requires a circuit court to review a state hearing officer’s findings of fact de novo and whether the Board of Review’s decision is supported by substantial evidence and should have been affirmed by the circuit court. Defer
5. Jerry Goldizen and Bill Goldizen Co-Administrators of the Estate of Elva Lee Goldizen v. Grant County Nursing Home - No. 090421. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant given plaintiffs’ failure to timely name an expert witness pursuant to the requirements of W.Va. Code §55-7B-7 (2008) in this medical malpractice case involving death. Plaintiffs contend that the circuit court erred in denying their motion to vacate the scheduling order and grant a continuance of the trial and in sanctioning plaintiffs for their failure to comply with a Rule 16 scheduling order, all of which resulted in the erroneous entry of summary judgment in favor of defendant. Plaintiffs seek a reversal and a remand for further proceedings to allow the matter to proceed to trial. Grant 5- 0
6. STATE EX REL. TROOPER MIKE LYNCH and MEMBERS OF THE 42ND and 43RD CLASSES OF THE WEST VIRGINIA STATE POLICE Similarly Situated; and In Re: DAWN C. BLAND and AUTUMN NICOLE BLAND, an Infant, Wife and Daughter of TROOPER DOUGLAS WAYNE BLAND; and All MEMBERS OF THE 43RD, 44TH, AND 45TH CLASSES OF THE WEST VIRGINIA STATE POLICE Similarly Situated v. JOSEPH J. JANKOWSKI, JR., Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; TERASA ROBERTSON, Deputy Director and Former Acting Co-Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; J. MICHAEL ADKINS, Former Acting Co-Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; and THE WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, an Agency of the State of West Virginia - No. 090481. Petitioners appeal from the circuit court’s order granting summary judgment in favor of the Consolidated Public Retirement Board and denying petitioners’ appeal of certain decisions of the Retirement Board occurring from November of 2002, through March 17, 2006, May 18, 2006, and June 3, 2008. Petitioners raise various issues, including constitutional issues related to their retirement and disability benefits. Refuse 4-1, Workman
7. Fraternal Order of Police, Gold Star Lodge # 65; Huntington Professional Fire Fighters Association, International Association of Fire Fighters, Local Union 289 v. The City of Huntington- No. 090483. The City of Huntington appeals the circuit court’s Nov. 5, 2008 order permanently enjoining the City from changing the health insurance plan for retired fire fighters and police officers until such time that an agreement is reached between the City and retired police officers and fire fighters regarding retiree health benefits. Refuse 5- 0
8. State of West Virginia v. Robert Dale Goodnight - No. 090518. Robert Dale Goodnight appeals the sentence he received for his convictions of one count felony Driving Under the Influence, Third Offense and one count misdemeanor Driving Under the Influence, Second Offense. He was sentenced to incarceration of 6 months in jail plus a consecutive 1 to 3 years in prison. Refuse 5- 0
9. State of West Virginia v. Andrew Alvarez - No. 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. Accept to Motion Docket
10. State of West Virginia v. James Louis DeGasperin - No. 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. Accept to Motion Docket
11. Ray Keith Lamb v. Kathy and Mark Mollohan - No. 090524. Plaintiff below, Ray Keith Lamb, appeals the circuit court’s order denying his motion for new trial. He asserts that the motion should have been granted because his former lawyer failed to advise him of the trial date and they both failed to appear at trial, through no fault of the plaintiff. Refuse 4-1, Ketchum
12. State ex rel. Dr. Vonda York-McElwain and John Blake, Physicians Assistant v. Unborn Baby C., a juvenile, Goldia C., the Natural Mother, and John Doe, the Unknown Natural Father - No. 090525. Goldia C. appeals the circuit court’s order which adjudicated her an abusive and neglectful parent before her child was born. Refuse 5- 0
13. Reginald A. Spencer and Joan Spencer v. Kathryn V. Rousseau - No. 090549. Reginald and Joan Spencer appeal the circuit court’s order dismissing their partition suit. The court found that the case was barred by res judicata and that the parties did not own the subject real estate as tenants in common, thus the property is not subject to partition under the statute. Refuse 4-1, Ketchum
14. James H. Kearns v. Thomas L. McBride, Warden - No. 090550. Petitioner, James H. Kearns, appeals from a September 3, 2008, Order from the Harrison County Circuit Court which denied the petitioner’s petitions for habeas corpus relief. Refuse 5- 0
15. State of West Virginia v. Thomas E. Leftwich - No. 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. Accept to Motion Docket
16. State of West Virginia v. Robert D. Sandy - No. 090560. Petitioner Robert D. Sandy appeals his January 21, 2007, conviction of first-degree murder. Petitioner was subsequently sentenced to life imprisonment without the possibility of parole. Accept to Motion Docket
17. State of West Virginia v. Frank L. Ferguson - No. 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. Accept to Motion Docket
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