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Gilmer County Circuit Court Report - 03.15.12

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Chief Judge Jack Alsop held 2 arraignments as follows:


•  State of West Virginia vs. Tonya Ramsey

She was back before Court and entered a plea of not guilty to the indictment returned against her.

Her bond remains at $20,000.00 but until she can pass a drug test Judge Alsop refused to let her out of jail and took the matter under advisement until that time.

She is represented by Kevin Duffy of Clay and her pretrial is set for Friday, June 01, 2012 at 3:00 PM and her trial is Wednesday, June 27, 2012 at 9:00 AM.


•  State of West Virginia vs. Catherine McGhee

She was back in Court and entered a plea of not guilty to the indictment returned against her earlier this month.

Her pretrial is Monday, June 11, 2012 at 11:00 AM and her trial is Thursday, June 28, 2012 at 9:00 AM.

She is represented by Daniel Grindo of Gassaway and posted $25,000.00 bond later in the day with AAA Bonding and she was released from Central Regional Jail.

Judge Richard A. Facemire also presided over Court on Thursday, March 15, 2012 and heard 4 cases as follows:


•  One fugitive from justice, Geovanic Berrios, waived extradition back to New York and authorities there have until 4:00 PM on Monday, March 26, 2012 to pick him up or Central Regional Jail will release him.

He was represented by Daniel Grindo.


•  Two juvenile cases were heard and completed.


•  A bench warrant was issued for the arrest of Holly McCraw formerly of Burnsville, but whereabouts unknown at this time for failure to appear for revocation of probation.

Bond was set at $200,000.00 cash only.

Gilmer County Circuit Court Report – 03.12.12

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On Monday, March 12, 2012 Chief Judge Alsop presided over his motion day.


•  One fugitive from justice from Maryland, Nevelion Short, waived extradition back to his state.

Imprisonment Status: Pre-Trial Felon

Short, Nevelion Deforst

Full Name: Short, Nevelion Deforst
Height: 5’6”
Weight: 145 lbs.
Birth Date: 02.04.1987
Gender:

Male

Booking Date: 03.09.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12E-4 GILMER COUNTY - Bail Amount: $0.00

 

He was represented by Daniel Grindo of Gassaway and authorities in Maryland have until 4:00 PM, Wednesday, March 21, 2012 to pick Short up or he will be released from Central Regional Jail.


•  State of West Virginia vs. John Carder

He had a bench warrant issued against him last week which was later quashed by Judge Alsop and set for hearing at 9:00 AM today appeared with his attorney James Hawkins Jr. of Buckhannon and moved for continuance of his trial until the next term of Court.

Judge Alsop denied the motion to continue to the July 2012 term of Court and set his trial for Tuesday, June 12, 2012 at 9:00 AM with pretrial motions to be heard at 1:00 PM on Friday, June 01, 2012.


•  A juvenile case was heard and reset for 9:00 AM on Monday, June 11, 2012.


•  Another was heard and set for 9:15 AM on Monday, June 11, 2012.


•  A third juvenile was heard and reset for Monday, April 09, 2012 at 11:15 AM.

GFP - 03.13.2012
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United States Court of Appeals, Fourth Circuit: U.S. v. HENRY (Rosedale, WV)

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U.S. v. HENRY

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KIMBERLEY HENRY, Defendant-Appellant.


UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EDGAR HENRY, Defendant-Appellant.

Nos. 10-5201, 10-5219

United States Court of Appeals, Fourth Circuit.

Argued: December 06, 2011.

Decided: March 08, 2012.

 

ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellants.

Shawn Angus Morgan, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

ON BRIEF: Charles T. Berry, Fairmont, West Virginia, for Appellant Edgar Henry.

William J. Ihlenfeld, II, United States Attorney, Clarksburg, West Virginia, for Appellee.

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.

 

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OPINION

BARBARA MILANO KEENAN, Circuit Judge.

Kimberley Henry and her husband Edgar Henry (collectively, the Henrys) were convicted in a jury trial of two offenses related to their conduct of growing marijuana at their home in a rural area of West Virginia. The Henrys raise three issues in this appeal: 1) whether a thermal-imaging search warrant that led to the seizure of marijuana on their property was valid; 2) whether the district court erred in excluding testimony that Edgar Henry used marijuana for medical purposes; and 3) whether the district court erred in determining that the Henrys were ineligible to receive “safety valve” sentencing consideration under 18 U.S.C. § 3553(f). Upon our review of these issues, we affirm the Henrys’ convictions and sentences.

In September 2003, Sergeant Steve Jones of the West Virginia State Police received information that the Henrys were growing large amounts of marijuana at their residence in Rosedale, West Virginia. Jones relayed this information to Sergeant James M. Manning, a West Virginia State Police officer who also was serving as a deputy task force agent with the United States Drug Enforcement Administration. After receiving this information, Manning began investigating the Henrys.

On July 13, 2004, Manning filed an application for a search warrant to conduct a thermal-imaging scan of the Henrys’ property. In his affidavit filed with the warrant application, Manning stated that he received information from a deputy sheriff that a confidential informant had revealed that the Henrys had been growing and distributing marijuana in the Rosedale area for the past four years.

The affidavit also contained the information that Manning received from Sergeant Jones, including an account from an anonymous source who stated in 2003 that the Henrys maintained a large indoor marijuana “grow operation” at their residence near Rosedale. This source also stated that the Henrys once had lived in New Jersey. Manning confirmed with the West Virginia Department of Motor Vehicles that the Henrys’ physical address was in Rosedale, West Virginia, which is located in Gilmer County. Manning additionally confirmed that Kimberley Henry‘s social security number was issued in New Jersey.

Also in the affidavit, Manning stated that in November 2002, two West Virginia State Police officers interviewed an inmate named Phillip Lee Sandy in a jail in Braxton County, West Virginia, regarding his knowledge of drug-related activity. Sandy told the officers that he had purchased small quantities of high-quality marijuana from Kimberley Henry on four or five occasions. Sandy also stated that the Henrys had constructed a building behind their residence to grow marijuana hydroponically, and Sandy provided the officers with a hand-drawn map of the Henrys’ property.

According to Sandy, the Henrys moved to West Virginia from the Washington, D.C. area. Manning corroborated this information when he conducted a criminal history review and learned that Edgar Henry had an arrest record in certain areas of Maryland located near Washington, D.C. Manning’s investigation further revealed that Edgar Henry’s first arrest in that area, in 1972, was based on drug-related charges, and that his second arrest in Maryland, in 1993, was for possession of marijuana.

Manning corroborated Sandy’s description of the Henrys’ property by conducting an aerial surveillance of the property in February 2004. During that surveillance, Manning observed a tan-colored residence with an attached, enclosed walkway leading to a building behind the residence.

As stated in the affidavit, several weeks after conducting the aerial surveillance, Manning and two other officers walked “along the roadway in the area of the [Henrys’] residence” to view the property. Manning observed in the rear building two large hooded lights and two ceiling fans, and heard the sound of a “large ventilation fan” emanating from the roof of the building.

The affidavit also stated that in May 2004, Manning learned that Edgar Henry had been arrested and charged with assault and disorderly conduct after threatening individuals at a grocery store in Rosedale who were trying to organize a “neighborhood watch program.“ Following Henry’s arrest, police discovered marijuana on his person, and Henry later was charged with possession of marijuana.

Manning also included in the affidavit the fact that Kimberley Henry did not have an arrest record. However, Manning further stated that Kimberley Henry appeared to have a particular interest in a 2002 federal prosecution of another individual from Rosedale who was charged with growing marijuana. A West Virginia State police officer had informed Manning that Kimberley Henry was present for every court appearance made by that defendant.

Finally, Manning stated in the affidavit that he received power usage records for the Henrys’ residence, which revealed an average bi-monthly electric usage of 10,870 kilowatt hours, with an average cost of about $728 for each bi-monthly billing period. Additionally, Manning confirmed that the Henry residence was not heated by electric power, but by gas.

After reviewing this affidavit along with Manning’s application, a magistrate judge concluded that there was probable cause to support a thermal-imaging scan of the Henrys’ property, and issued the requested search warrant. Manning executed the thermal-imaging search warrant in July 2004.

During the search, although the outside temperature in the area was about 58 degrees Fahrenheit, an air conditioning unit was operating in the rear building. However, the air conditioning unit in the residential portion of the property was not operating. Using night-vision goggles and a thermal-imaging unit, Manning and another officer determined that the rear building emitted a high amount of heat, which was much greater than the residential portion of the structure.

Relying on the information obtained during this search, along with the information provided in his initial affidavit, Manning applied for a second search warrant to conduct a physical search of the Henrys’ property. The magistrate judge issued the requested warrant.

During the physical search of the Henrys’ property, the police seized numerous items, including a total of 85 marijuana plants in various stages of development. The police also seized evidence of a recent harvest, including 31 marijuana plant roots.

Additionally, the police discovered various types of “growing equipment,“ processed marijuana, triple-beam scales, gallon-sized plastic bags, drug usage paraphernalia, and a binder containing handwritten notes, most of which were entered by Kimberley Henry and involved the growing of marijuana from 2000 through 2002. Finally, the police seized $1,800 in cash, in the form of $100 bills.

The Henrys were indicted in the United States District Court for the Northern District of West Virginia on three counts: 1) conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B); 2) aiding and abetting in the manufacture of 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and 3) aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.

The Henrys filed a motion to suppress the evidence obtained from the searches of their property, arguing that the warrant application for each search was insufficient, and that the initial affidavit for the thermal-imaging search warrant was so deficient that it constituted a “bare bones” affidavit. The magistrate judge conducted hearings on the Henrys’ motion and issued an opinion recommending that the district court deny the motion. The district court agreed with this recommendation and denied the Henrys’ motion to suppress.

Also before trial, the district court considered the government’s motion in limine. In that motion, the government sought to preclude the Henrys from offering testimony that Edgar Henry personally used the marijuana grown by the Henrys to alleviate symptoms relating to his medical illnesses. The purported purpose of this testimony was to show that the Henrys lacked any intent to distribute the marijuana being grown on their property.

After conducting a hearing, the district court granted the government’s motion in limine. The district court concluded that the Supreme Court’s holding in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001) (Oakland Cannabis), prohibited the Henrys from presenting a “medical necessity defense.“ However, the district court permitted the Henrys to offer evidence that they possessed and manufactured the marijuana solely for their personal use.

The case proceeded to a jury trial. The jury convicted the Henrys of two charges, the charge of conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, and the charge of aiding and abetting in the manufacture of 100 or more marijuana plants. The jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.

The Henrys’ pre-sentence reports reflected that the Henrys both were subject to a five-year mandatory minimum sentence under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). The Henrys objected to the pre-sentence reports and contended that they should not be subject to the statutory minimum sentence because they qualified for a sentencing benefit under the “safety valve” provision of 18 U.S.C. § 3553(f). In support of their argument, the Henrys relied on a written “offer of proof” submitted to the district court before sentencing, in which the Henrys described the details of their marijuana operation.

After conducting a sentencing hearing during which the parties presented testimony and other evidence, the district court determined that the Henrys were not credible, and that they had not provided the government with all relevant information relating to the offenses. Thus, the district court concluded that the Henrys failed to establish that they qualified for safety valve relief. The district court imposed on each defendant the mandatory minimum sentence of 60 months’ imprisonment. The Henrys timely filed this appeal.

 

II.

A.

We first consider the Henrys’ contention that the district court erred in denying their motion to suppress. The Henrys’ argument on this issue is limited to challenging the sufficiency of the affidavit submitted to obtain the thermalimaging search warrant. We review this issue of law de novo. See United States v. Wellman, 663 F.3d 224, 228 (4th Cir. 2011). 

A judicial officer’s determination of probable cause generally is accorded “great deference” by reviewing courts. Illinois v. Gates, 426 U.S. 213, 236 (1983); Wellman, 663 F.3d at 228. In deciding whether there was probable cause to support the issuance of a search warrant, we consider whether the known facts and circumstances were sufficient such that a reasonable person could conclude that the described evidence would be found in a particular place. Wellman, 663 F.3d at 228. The probable cause standard “is not defined by bright lines and rigid boundaries” but “allows a [judicial officer] to review the facts and circumstances as a whole and make a common sense determination” whether there is a fair probability that evidence of a crime will be found. Id. (quoting United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005)). 

The Henrys assert that the affidavit at issue failed to meet this probable cause standard. The Henrys focus their argument on the information provided by the two unidentified sources and by Sandy, the cooperating inmate. According to the Henrys, these sources failed to explain how they obtained the information they relayed to the authorities, and failed to provide sufficient details to demonstrate that they were credible and reliable sources. The Henrys further contend that Sandy’s information was “stale,“ because he was interviewed by the police more than twenty months before the thermal imaging search warrant was issued. Additionally, the Henrys argue that although Manning submitted information to the magistrate judge regarding power usage at the Henrys’ property, Manning failed to show that such usage was irregular.

We disagree with the Henrys’ arguments, because they isolate certain aspects of the affidavit to the exclusion of other supporting facts and circumstances. Initially, we observe that the Henrys accurately identify certain weaknesses in the affidavit concerning the information obtained from Sandy and the two unidentified sources. The individual statements from each of these three sources were not based on recent information. Rather, the sources only were able to state that the Henrys had grown large amounts of marijuana at their residence in the past, and that the sources had purchased marijuana from the Henrys at some unidentified earlier time.

Because these accounts were not based on recently acquired information, the accounts, if considered separately, may well have been insufficient to establish probable cause. However, when considered collectively, that information demonstrated that three individuals with no connection to one another provided consistent statements regarding the Henrys’ alleged illegal conduct involving the manufacture and distribution of marijuana.

We also observe that many details provided by these three sources were corroborated by Manning’s independent investigation. Manning confirmed that Kimberley Henry had lived in New Jersey, that the Henrys likely moved to West Virginia from the Washington D.C. area, and that the Henrys’ property, when viewed by Manning during an aerial surveillance, appeared as described by Sandy. In addition, the magistrate judge’s determination was supported by other details, including Edgar Henry’s threats to residents seeking to organize a neighborhood watch program, and Kimberley Henry’s acute interest in court proceedings involving a person accused of manufacturing marijuana in the Rosedale area.

Regarding the electric power usage information submitted to the magistrate judge, the Henrys correctly observe that Manning failed to provide information to assist the magistrate judge in determining whether the Henrys’ power usage was excessive for a property of that size. However, Manning did determine that the residence was heated by gas, rather than by electric power. Therefore, the magistrate judge was able to consider the Henrys’ electric power usage information in that relevant context.

In view of the collective strength of this information, we conclude that the affidavit provided a sufficient basis to establish probable cause for issuance of the thermal-imaging search warrant. Therefore, we hold that the district court did not err in denying the Henrys’ motion to suppress.

 

B.

We next consider the Henrys’ argument that the district court erred in granting the government’s pre-trial motion in limine, thereby preventing the Henrys from presenting evidence that Edgar Henry used marijuana to improve symptoms related to his medical illnesses. The Henrys contend that the district court erroneously applied the Oakland Cannabis case in granting the motion in limine. We disagree with the Henrys’ argument.

We review a district court’s refusal to admit evidence under an abuse of discretion standard. United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009). A district court abuses its discretion when it acts in an arbitrary manner, when it fails to consider judicially-recognized factors limiting its discretion, or when it relies on erroneous factual or legal premises. Id. (citing United States v. Uzenski, 434 F.3d 690, 709 (4th Cir. 2006)). 

We conclude that the district court did not abuse its discretion in limiting the scope of the Henrys’ defense based on the decision in Oakland Cannabis. In that case, the government filed an action seeking an injunction against a California cooperative to enjoin the cooperative from manufacturing and distributing marijuana to patients who qualified under California law to receive marijuana for medical purposes. 532 U.S. at 486-87. After the district court granted the government’s request for a preliminary injunction, the cooperative asked the court to modify the injunction to permit distributions that were “medically necessary.“ Id. at 488. The district court denied the cooperative’s request and, on appeal, the Ninth Circuit reversed the district court’s ruling. Id.

The Supreme Court disagreed with the Ninth Circuit’s decision. The Supreme Court held that the district court was not permitted to consider the cooperative’s medical necessity defense in fashioning injunctive relief, because medical necessity is not a defense to the conduct prohibited by the Controlled Substances Act (the Act), 21 U.S.C. § 801 et seq. Id. at 494.

In reaching this conclusion, the Court observed that the Act contained only one exception to the general prohibition of manufacturing marijuana or possessing marijuana with the intent to distribute, namely, the exception afforded to government-approved research projects. Id. at 489-90 (citing 21 U.S.C. §§ 823(f), 841(a)(1)). The Court further explained that for a drug to qualify as a Schedule I controlled substance under the Act, that drug cannot have any “currently accepted medical use” in treatment in the United States. Id. at 491 (citing 21 U.S.C. § 811). Thus, the Court reasoned that Congress, by including marijuana as a Schedule I controlled substance, made a determination “that marijuana has no medical benefits worthy of an exception” beyond the single exception for government-approved research stated in the Act. Id.

As the Henrys accurately observe, the facts and circumstances in Oakland Cannabis differ significantly from those before us in the present case. Here, the Henrys were not seeking to defend their acts of distribution of marijuana on the basis that marijuana provided some medical benefit. Rather, the Henrys sought to bolster their defense of personal use of marijuana by explaining their belief that marijuana had a beneficial impact on Edgar Henry’s health.

Despite this distinction, however, a critical component of the Supreme Court’s rationale in Oakland Cannabis is relevant here. As the Supreme Court explained, because Congress has determined that there is no medical benefit from the use of marijuana, such use cannot serve as a defense to conduct prohibited by the Controlled Substances Act. Given Congress’ determination, we cannot say that the district court acted arbitrarily or relied on an erroneous legal principle in determining that the Henrys’ reason for personally using marijuana should be excluded from evidence. Therefore, we conclude that the district court did not err in granting the government’s motion in limine.

Finally, the Henrys argue that the district court committed sentencing error in determining that they both were ineligible for safety valve relief under the provisions of 18 U.S.C. § 3553(f). Because a district court’s decision regarding the eligibility for such relief presents a question of fact, we review the district court’s decision for clear error. United States v. Aidoo, ___ F.3d ___, ___, slip op. at 11 (4th Cir. 2012) (citing United States v. Wilson, 115 F.3d 429, 432 (4th Cir. 1997)). This standard of review permits reversal only if this Court is “left with the definite and firm conviction that a mistake has been committed.“ United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 562, 573 (1985)). In conducting our review, we accord the district court’s credibility determinations great deference. United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

When applicable, the safety valve provision permits a district court to impose a shorter sentence for first-time offenders who otherwise would be subject to a mandatory minimum sentence. 18 U.S.C. § 3553(f); United States v. Withers, 100 F.3d 1142, 1146 (4th Cir. 1996). A defendant seeking this statutory relief must establish that (1) the defendant does not have more than one criminal history point; (2) the defendant did not use violence or possess a firearm in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense; and (5) no later than the time of sentencing, the defendant truthfully provided the government with all evidence and information the defendant had concerning the offense or offenses comprising the same course of conduct or a common scheme or plan. 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2; United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996).

In the present case, the district court concluded, and the government agrees, that the Henrys satisfied the first four requirements necessary to qualify for safety valve relief. Therefore, the only issue before us is the district court’s finding regarding the fifth requirement for safety valve relief, namely, that the Henrys failed to provide truthful information to the government concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. See 18 U.S.C. § 3553(f)(5).

The Henrys argue that they provided the district court with all relevant information regarding their marijuana operation. They also contend that they provided financial documentation supporting their contention of legitimate income, including evidence that they regularly received income from their rental of farm equipment. The Henrys maintain that based on these submissions, they satisfied the fifth requirement of 18 U.S.C. § 3553(f) and were entitled to application of the safety valve provision. We disagree.

As we have explained, section 3553(f)(5) “requires broad disclosure from the defendant” and mandates that a defendant supply the details of his own culpability. Aidoo, slip op. at 13-14. The district court is obligated to determine whether a defendant has truthfully provided the government with all known relevant information, and the court may consider any false statements a defendant may have made when evaluating the defendant’s credibility. Aidoo, slip op. at 14-15. (citing United States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir. 2004); United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000)).

In the case before us, the district court found that the Henrys were not credible witnesses, and that certain representations they made were inconsistent with a full and truthful disclosure of all relevant information. The district court first cited Kimberley Henry’s trial testimony, in which she stated that the $1,800 in cash seized by the authorities came from a rental payment received for leasing their farm equipment. The district court contrasted this testimony with other evidence presented by the government, which showed that the equipment rental was paid for by check, not in cash. The district court also stated that although the Henrys presented some evidence that a portion of the $72,000 flowing into and out of their bank accounts during the time period covered by the conspiracy may have come from legitimate sources, the court found that the general absence of financial records was consistent with cash income based on illegal drug sales.

In addition, the district court noted that several items seized during the search of the Henrys’ property, including the triplebeam scales and the large plastic baggies found in close proximity to 299 grams of marijuana, indicated that the Henrys were distributing marijuana and not merely using it as they had maintained. Based on these considerations, the district court determined that the Henrys did not truthfully disclose all relevant information as required by section 3553(f)(5). We hold that the district court did not clearly err in reaching this determination, which was supported on the several bases described above.

Our conclusion is not altered by the fact that the district court rested its decision in part on its finding that the Henrys were not truthful when they denied that they had distributed marijuana. Although the jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute marijuana, the issue remained at sentencing whether the Henrys truthfully disclosed all information regarding the $1,800 in cash seized by the police and the other undocumented income. Thus, the district court was entitled to evaluate the Henrys’ credibility on this issue, including whether their testimony revealed the true source of that income or instead was an attempt to obscure other illegal conduct related to the distribution of marijuana.

Based on the district court’s credibility finding, which we accord substantial deference, Layton, 564 F.3d at 334, and the several sound bases on which the district court relied, we hold that the district court did not clearly err in determining that the Henrys failed to carry their burden of proving that they satisfied the requirements of 18 U.S.C. § 3553(f)(5). Accordingly, we affirm the district court’s decision denying application of the safety valve provision.

 

III.

For these reasons, we affirm the district court’s judgment.

AFFIRMED.

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G-FYI™: West Virginia Shield Law

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On March 12, 2011 the West Virginia state legislature enacted H.B. 2159, adding §57-3-10, “Reporters’ Privilege,” to the Code of West Virginia. The statute, which was signed by Acting Governor Earl Ray Tomblin in April and took effect June 10, extends a qualified privilege with few limitations to reporters seeking to protect confidential sources of information, supplementing existing state constitutional protection.

Under the law, reporters cannot be “compelled to testify in civil, criminal, administrative, or grand jury proceedings” without “the consent of the confidential source.” Reporters also cannot be compelled “to produce any information or testimony that would identify a confidential source” without the consent of the source. The privilege may be overcome, however, when the testimony “is necessary to prevent imminent death, serious bodily injury, or unjust incarceration.”

The statute defines a reporter as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood, or a supervisor, or employer of that person in that capacity.” The law also extends to student journalists, “provided that [the] student reporter at an accredited educational institution … meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood.”

The West Virginia legislation also mandates that the section not be read “to limit any existing constitutional protections afforded any person under the United States or West Virginia Constitutions,” a provision which, in an April 06, 2011 report, the RCFP called “significant … in light of [West Virginia] courts’ general acceptance of the state Supreme Court’s articulation of a qualified reporter’s privilege in Hudok v. Henry.” In Hudok, 389 S.E.2d 188 (WV 1989), reporters claimed a privilege under the free press clause of the First Amendment and under Article II, Section 7 of the West Virginia Constitution to decline to answer questions or to divulge information obtained in the course of newsgathering. The Supreme Court of Appeals of West Virginia held “disclosure of a reporter’s confidential sources or news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” The original draft of the shield law contained the Hudok test, but the House Judiciary Committee ultimately omitted that language.

Media and First Amendment advocates supported the law, but not without some skepticism. In an Editor’s Log blog post on The Parkersburg (W. Va.) News and Sentinel website, News and Sentinel Executive Editor Jim Smith wrote, “the bottom line is with a strong shield law, the public gets information that may be vital to it and its understanding of events of the day or government-related activities.” But Smith also expressed concern: “It will be interesting to see how effective the law is in practice. Unfortunately, there always seems to be a broad difference between the intent and spirit of a law and how it is actually followed.”

Student Press Law Center (SPLC) Director Frank LoMonte praised the student journalist provision of the bill in a blog post on the organization’s website on March 14, saying the bill would make West Virginia’s shield law among the strongest in the nation for student journalists. In a March 10 column in the Charleston, W.Va. Daily Mail, two days before the law passed, LoMonte encouraged the West Virginia Legislature to recognize student journalists as it considered the measure. “With the ranks of full-time salaried journalists shrinking, unpaid college students increasingly are providing the news coverage that communities rely on to stay informed. Student journalists assume all of the same risks and responsibilities that professionals do, and they should be entitled to all of the same protections,” he wrote.

The new shield law may be applied for the first time after the Supreme Court of Appeals of West Virginia, the state’s highest court, held that a trial judge erred in ordering a newspaper to reveal the identities of anonymous sources and documents in a defamation suit. Lincoln Journal v. Hustead, No. 35734, 2011 W. Va. LEXIS 25 (W. Va. May 2, 2011)


In that case, The Lincoln (WV) Journal and individual reporters petitioned the Supreme Court of Appeals for a writ of prohibition to prevent Judge Jane Hustead from enforcing a September 14, 2010 order compelling them to reveal sources and newsgathering materials. Hustead’s order stemmed from a series of articles in The Lincoln Journal that alleged illegal campaign donations by the owner of a rival newspaper and other individuals to local candidates in 2008 primary elections. The reports cited several anonymous sources and Lincoln County Prosecuting Attorney William J. “Jackie” Stevens II. The stories also referred to copies of the criminal complaints that had been submitted to the paper and to Stevens. The state’s high court ruled May 02 that the lower court “was required to separately identify each allegedly defamatory article with specificity, each source therein that the plaintiffs sought through discovery, and thereupon conduct for each article a separate Hudok analysis,” rather than analyze them all together.

Because the lower court review will be conducted after the new shield law is in place, it may benefit the newspaper. David Barnette, The Lincoln Journal’s lawyer and general counsel for the West Virginia Broadcasters Association, told the RCFP for a May 09 story that when the case undergoes further review, the newspaper may avoid the Hudok analysis if the court applies the new shield law, although the law allows the reviewing judge to consider the Hudok factors if he or she chooses. By applying the Hudok test, Barnette said, “The court can go beyond what the Legislature can do.”

Since West Virginia trial judge erred when she ordered a newspaper to reveal the identities of anonymous sources and documents in a defamation suit against the paper, the state’s highest court ruled differently.

Click to Read the Ruling

The Supreme Court of Appeals of West Virginia returned the case to the lower court, which must identify and analyze each allegedly defamatory statement and the confidential source who made the statement separately.

Cabell Circuit Judge F. Jane Hustead failed to undertake this specific analysis when she ordered The Lincoln Journal to reveal anonymous sources referred to in a series of articles alleging that the owner of a rival newspaper and other individuals illegally contributed money to local candidates in the 2008 primary elections, the Supreme Court of Appeals in Lincoln Journal v. Hon. Jane F. Hustead, Judge.

Click for Additional Information

Gilmer County Circuit Court Report - 03.08.12

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On Wednesday, March 07, 2012 Chief Judge Jack Alsop heard 2 juvenile hearings with one being rescheduled for Tuesday, March 20, 2012 at 10:00 AM.


On Thursday, March 08, 2012 both Chief JudgeJack Alsop and Judge Richard Facemier held Circuit Court in Gilmer County.


After Chief Deputy Larry Gerwig opened Court Chief Judge Alsop began running through his 4 page docket.


Trials were set in 4 cases as follows:


•  State of West Virginia vs. Joshua Allen Hoover

The case was set for first trial on Wednesday, March 14, 2012.

His attorney is David Karickhoff of Sutton, WV.


•  State of West Virginia vs. Karen Burns

The case was set for second trial on Wednesday, March 14, 2012.

Her attorney is Kevin Duffy of Clay, WV.


•  State of West Virginia vs. Charles Emerson

The case was set for third trial on Wednesday, March 14, 2012.

He is represented by Kevin Duffy of Clay, WV.


•  State of West Virginia vs. Matthew Andrew Capelety

The case is now set for the 1st trial on Tuesday, March 27, 2012.

He is represented by Christopher Moffatt of Charleston.


•  Two cases had pre-trial motions heard in them, but Judge Alsop recessed Court while the prosecutor contacted Cpl. R.P. Smith to testify as a witness in the matters.

Then Judge Richard A. Facemire began his court hearings, which were all scheduled for 9:00 AM as follows:


•  In the case of State of West Virginia vs. Jason M. Pritt,

Judge Facemire sentenced him to 1-5 years in the penitentiary upon his former plea of guilty to conspiracy to operate a clandestine meth lab.

He received no fine but customary court costs plus court appointed attorney fees.

He was given credit for any time previously served in jail.

After seeing on Pritt’s presentence investigation that he made $36.00 per hour, Judge Facemire ordered him to complete a new financial affidavit to see if he would qualify for court appointed attorney for purposes of appeal, if he desires to appeal.

Probation was denied in the matter.

He was allowed to self-report to Central Regional Jail on Friday, March 16, 2012 by Noon.

Pritt was represented by Clinton Bischoff of Summersville.


•  Three juvenile hearings were also conducted by Judge Facemire, with one being reset for Tuesday, May 29, 2012 at 9:00 AM and one being reset for Friday, March 23, 2012 at 9:00 AM. The third was not set for further hearing.


After Judge Facemire finished with his hearings, Judge Alsop began again to complete his docket.


•  State of West Virginia vs. Thomas William Bonnell Jr.

He did not appear for status.

However, his attorney Kevin Duffy indicated he was wounded over the weekend and was currently in the hospital.

Upon his release from the hospital he is to be taken to Central Regional Jail and lodged there until further hearing in his case.


•  State of West Virginia vs. John Robert Carder

With neither he nor his attorney, James Hawkins, appearing for status, a bench warrant was issued for his arrest and bond was set at $150,000.00.


•  Various pre-trial motions were heard in the case of State of West Virginia vs. Charles Emerson and Matthew Capelety, with many of them being denied.


•  State of West Virginia vs. Jerry Wayne Blackwell

The case was set for plea on Tuesday, March 13, 2012 at 10:00 AM.

He is represented by David Karickhoff of Sutton.


•  A juvenile hearing was to be heard at 3:00 PM.

However, upon attorney David Karickhoff being unable to appear on time Judge Alsop set it for hearing at 3:30 PM on Tuesday, March 13, 2012.


Judge Alsop will return to Glenville on Monday, March 12, 2012 for his regular motion day.

G-otcha™: Federal Grand Jury Indicts Braxton County Individuals – 03.06.12

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Seven individuals were named in six Indictments returned by a Federal Grand Jury sitting in Clarksburg, West Virginia, on March 06, 2012.

Among them United States Attorney William J. Ihlenfeld, II, announced that:

JOCELYN M. GRAHAM, age 27, of Duck, West Virginia, was named in a two-count Indictment.

Count One charges GRAHAM with conspiracy to distribute methamphetamine and oxycodone from June to August 03, 2010.

Count Two charges GRAHAM with the illegal use of the United States mail on August 03, 2010, to facilitate the distribution of methamphetamine and oxycodone.

If convicted, GRAHAM faces a maximum exposure of 20 years imprisonment and a fine of $1,000,000 as to Count One and 4 years imprisonment and a fine of $250,000 as to Count Two.

This case will be prosecuted by Assistant United States Attorney Robert H. McWilliams, Jr. and was investigated by the United States Postal Inspection Service.

It should be noted that the charges contained in the above-referenced Indictments are merely accusations and not evidence of guilt, and that each defendant is presumed innocent until and unless proven guilty.

Gilmer County Grand Jury Returns 10 Indictments - 03.06.12

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Chief Judge Jack Alsop began his March term of Court in Gilmer County by indoctrinating the Grand Jury on Tuesday, March 06, 2012.

The jurors retired to their jury room at 9:37 AM and returned to the Court Room at 11:40 AM and returned the following 10 indictments:


•  State of West Virginia vs. Shane Daniel Posey

He was indicted for Failure to provide sex offender registration change of information.

He is represented by Daniel Grindo of Gassaway.

He is free on $1,000.00 bond posted by B&B Bonding.


•  State of West Virginia vs. Gary Paul Ferrell

He was indicted for failure to provide sex offender registration change of information.

He is represented by Garth Beck of Clarksburg.

He is free on $1,000.00 bond posted by B&B Bonding.


•  State of West Virginia vs. Patrick Shawn Collins

He was indicted for 3 counts of Failure to provide sex offender change of information.

He is represented by Kevin Duffy of Clay.

He is currently in jail in lieu of $5000.00 cash bond.


•  State of West Virginia vs. Tonya Alisa Ramsey

She was indicted for obtaining a controlled substance by misrepresentation.

She is represented by Kevin Duffy.

She is free on $5,000.00 bond posted by B&B Bonding.

She also goes by the name of Tonya Hayley.


•  State of West Virginia vs. Jimmie Glen Stewart

He was indicted for 5 counts of Sexual Abuse in the First Degree.

He is represented by Daniel Grindo.

He is free on $10,000.00 bond on all charges posted by B&B Bonding.


•  State of West Virginia vs. Timothy Alan Furr

He was indicted for Burglary, Grand Larceny, Manufacture, Delivery or possession of a controlled substance with intent to deliver a Schedule I controlled substance, and possession of a controlled substance 3 counts.

Furr is represented by Kevin Hughart of Sissonville

He remains in jail with bond set at $100,000.00.


•  State of West Virginia vs. Alicia Nichole Wine

She was indicted for 2 counts of Forgery, 2 counts of uttering, 2 counts of conspiracy to commit forgery and 2 counts of conspiracy to commit uttering.

She is free on $10,000.00 bond posted by AAA Bonding.

She is represented by Clinton Bischoff of Summersville.


•  State of West Virginia vs. Joshua Allen Hoover

He was indicted for 3 counts of forgery, 3 counts of uttering, 2 counts of conspiracy to commit forgery and 2 counts of conspiracy to commit uttering.

He is represented by David Karickhoff of Surton.

He is currently in jail under $15,000.00 bond.


•  State of West Virginia vs. Catherine McGhee

She was indicted for 3 counts of delivery of controlled substance within 1,000 feet of a school.

She is currently in Central Regional Jail under $25,000.00 bond.


•  State of West Virginia vs. Sundee Marie Honaker

She was indicted for 1 count of delivery of a controlled Substance within 1,000 feet of a school.


All persons indicted will be arraigned on Tuesday, March 13, 2012 at 9:00 AM and those defendants without attorneys will be able to fill out financial affidavits and request court appointed attorneys (if they meet the guidelines).

Bond will also be set and posted that day or they will be returned to jail.

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Gilmer County Circuit Court Report - 03.06.12

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On Tuesday, March 06, 2012 session of Gilmer County Circuit Court with Chief Judge Jack Alsop:


Two fugitives from justice hearings were held.

Dajuan Raphael Patterson waived extradition back to the state of Virginia and Jeffery Lacomb waived extradition back to the state of Vermont.

Both defendants were represented by Daniel Grindo of Gassaway and authorities in their respective states have until 4:00 PM on Friday, March 16, 2012 to pick them up at Central Regional Jail or they will be released.


Status conferences were held in several civil matters.

In the case of Michael and Rachel Langford vs. Patrick Robert Bush

The scheduling order previously entered will be followed.


In the cases of

First Reolution Investment Corp vs. Leonard F. Terrango

And

Citibank NA vs. Angela C. Nicholas

And

Ford Motor Credit Co. vs. Lucas J. McCune

And

Citibank vs. Robert A. Spencer

The Judge noted that no service had been made on defendants and ordered the plaintiffs’ attorney in each case to have the defendants served on he would dismiss the cases.


An expungement hearing will be held on Monday, April 09, 2012 at 10:45 AM in the case of Jordan D. Sheldon vs. State of West Virginia.

He is represented by Nicholas T. James with the state being represented by prosecutor Gerald B. Hough.


A bench trial was set for Tuesday, August 14, 2012 in the civil case of Stonewall Jackson Memorial Hospital vs. Crystal Ann Marks, who is representing herself in the matter.

Christopher McCarthy represents SJMH.


In the case of State of West Virginia vs. William Sharpe Jr. Hospital

The Court entered an order directing the hospital to release records previously subpoenaed by the prosecutor.


Judge Alsop returns to Gilmer County on Wednesday and Thursday for more Court.


Family Court will meet in Gilmer County on Wednesday also welcoming back Family Court Judge Whited.

Lewis County: The Grand Jury Hands Down 12 Indictments - 03.05.12

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The Lewis County Grand Jury indicted 12 people on Tuesday, March 05, 2012.

Prosecuting Attorney Gary Morris presented 11 of them while a special prosecutor presented one.


•  Christopher Bills, 18, of Weston, was indicted on one count armed robbery and one county conspiracy.


•  Lawan Gaddy, 23, of Weston, was indicted on one count armed robbery (aid and abet) and one count conspiracy.


•  Tiffany Roach, 23, of Weston, was indicted on one count armed robbery (aid and abet) and one count conspiracy.


•  Angela Jean Burkhart, 43, of Weston, was indicted on one county death of incapacitated adult by a caregiver.


•  David Tyler Raines, 20, of Weston, was indicted on two counts grand larceny, one count burglary and two counts conspiracy.


•  Raymond Joseph Roselle, 19, of Weston, was indicted on one count grand larceny and one count conspiracy.


•  Thomas R. Pratt, 21, of Weston, was indicted on one count conspiracy, one count burglary and one count grand larceny.


•  Casey Cottrill, 30, of Wilsie, was indicted on one count forgery and one count uttering.


•  Daisy Mae Hall, 32, was indicted on one count failure to appear upon personal recognizance.


•  Adam Ryan Huntz, 31, of Weston, was indicted on two counts forgery and two counts uttering.


•  Jeffrey Allen White, 43, of Summersville, was indicted on one count breaking and entering, one count grand larceny and one count conspiracy.


•  Anthony Duane Falls, 31, of Weston, was indicted on one count uttering.

WV to Cap Court Cost Mailing Charges

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West Virginia’s circuit courts will soon ease what they can charge to mail decrees, orders and other court filings.

Legislation passed Friday by the House would limit those charges to the actual cost of postage or express mailing.

State law now allows the court to charge up to triple that amount.

Officials did not immediately provide the potential savings, or cost to revenues.

The measure goes to Governor Earl Ray Tomblin once the Senate grants its expected approval to a change in the bill’s title.

The legislative session ends March 10, 2012.

West Virginia Jurists to Participate in Reading Program

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Judicial officers across West Virginia will spend a day away from the bench as they participate in Read Across America Day in schools across the state.

The annual event is held on the birthday of Dr. Seuss, more formally known as Theodor Seuss Geisel, the author of some of the country’s most beloved children’s stories.

The event falls on Friday this year.

The judges and magistrates participating in the program are doing so through the Robes to Schools program.

It gets active and retired judges and magistrates to make regular appearances in West Virginia schools.

Gilmer County Circuit Court Report – 02.27.12

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On Monday, February 27, 2012 Judge Richard A. Facemire presided over his regular monthly motion day in Gilmer County.


•  State of West Virginia vs. Kevin Curry

He entered a plea of guilty to count 3 of his indictment (with all remaining counts dismissed).

He was represented by Christina Flanagan of Buckhannon and will be sentenced on Monday, April 23, 2012 at 9:15 AM.


•  One juvenile was heard and reset for Monday, June 25, 2012 at 9:15 AM.

•  Another was reset for Thursday, March 08, 2012 at 9:00 AM.

•  Two juvenile cases were consolidated to be heard on Thursday, March 08, 2012 at 9:00 AM also.


•  In the civil case of Bobby Gene Roberts vs. Frank Masiarczyk

A case that was presumably settled last year, a status conference was held with Tom Smith (attorney for defendant) appearing in person, and Bernie Mauser (attorney for plaintiff) appearing by telephone.

Smith agreed to submit the release to Mauser for the third time and the matter would be disposed of.


•  State of West Virginia vs. Osmond Brown Jr.

He pled to count 1 of the indictment (with all remaining counts dismissed).

He was represented by Christina Flanigan and will be sentenced on Monday, April 23, 2012 at 10:00 AM.


•  State of West Virginia vs. Tim Furr

He was before the Court for revocation of his bond, which motion the Judge granted.

His bond had originally been $33,000.00 and Facemire reset his bond at $100,000.00 good and sufficient surety to be approved by the Clerk of this Court and home confinement hookup.

After Furr was unable to make bond, he was delivered to the Central Regional Jail.

He is represented by Drannon Adkins who works with Kevin Hughart of Sissonville.


•  State of West Virginia vs. Casey Cottrill

She pled to count 2 of her indictment (with all remaining counts dismissed) under a multi county plea agreement.

She was represented by Garth Beck of Clarksburg and will be sentenced on Monday, April 23, 2012 at 9:45 AM.


•  State of West Virginia vs. Amanda Smith

She pled no contest to count 1 of her indictment (with all remaining counts dismissed).

She was also represented by Garth Beck and will be sentenced on Monday, April 23, 2012 at 9:30 AM.


•  State of West Virginia vs. Amy Lamarti

She was sentenced to 1-5 years in the penitentiary upon her former plea of guilty, with said sentence being suspended and she was placed on probation for 5 years and given 6 months home confinement.

Her probation will be transferred to the state of New York and she must perform 100 hours of community service per year of probation.

She received no fine but must pay customary and usual court costs.

She must enroll in substance abuse classes and attend NA and AA and have full time employment.

Drannon Adkins was her attorney in the matter.


•  One expungement was heard and granted by Judge Facemire.


•  State of West Virginia vs. Karen Burns

She was before the Court for entry of plea.

However, Judge Facemire refused to take the plea and her case was continued until the March term of Court.

She was represented by Kevin Duffy of Clay.


•  A juvenile case was reset for Thursday, March 08, 2012 at 9:00 AM.


•  The civil case of Jay Lawrence Smith vs. Jean Butcher & Gilmer County Commission was before the Court and Judge Facemire dismissed the same with prejudice.

Judge Facemire informed Gerry Hough that he could file a defamation civil suit if he so desired.

Smith represented himself in the matter (pro se).


•  In the case of Gilmer County Commission vs. Union Gas Corp., after testimony by Gilmer County Assessor Gary Wolfe, Judge Facemire said the settlement was fair and accepted the same and the case was dismissed.


•  In the case of Frame vs. Frame, defense counsel, Timothy Butcher of Glenville, was before the Court with plaintiff’s attorney, Bill Richardson of Parkersburg, appearing by telephone for continuance of the trial.

After Judge Facemire directed depositions be completed by Friday, April 27, 2012, he ordered mediation to be completed by Monday, May 28, 2012 and set a status/scheduling conference for Monday, June 25, 2012 at 9:30 AM.

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G-FYI™: Gilmer County Circuit Judge Dismisses the FOIA Lawsuit

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Update:  02.27.12 :

Today, Monday, February 27, 2012, the Gilmer County Circuit Judge Richard Facemeir dismissed with prejudice the lawsuit filed by the Gilmer County Prosecutor Gerry Hough on behalf of Gilmer County Commission, and Jean Butcher, the Gilmer County Clerk against Lawrence Smith from WV Record.

The lawsuit was filed because Smith had requested information under FOIA.

Decision was made by the Judge after Gerry Hough and Lawrence Smith made their presentation to the court.
The decision by the Judge means that the lawsuit may not be re-filed, and as such, it operates as an adjudication on the merits.

Details to follow…..


===========================================


Update - 02.26.12 :


Related Document 1

Related Document 2

Related Document 3


===========================================


During a special meeting last month, the Gilmer County Commission released the details of settlement in the third-party lawsuit Summit Community Bank filed in federal court against the Clerk’s Office for improperly recording lien information on properties in the Rivers’ View Subdivision.

Through its insurance company, the commission paid Summit $40,000.

The details came a month after Lawrence J. Smith, a contributor with The West Virginia Record in Charleston, filed a lawsuit here in Gilmer County to compel its release.

During its regularly scheduled meeting on January 10, 2012, the Gilmer County Commission agreed with the recommendation of Prosecutor Gerry Hough to settle Smith’s suit, then sue him for frivolously filing it.

During the meeting, Hough said, “It is necessary to do this because we cannot allow the press to make the county look bad.“

The Commission and Jean Butcher, the County Clerk made good on their threat by including a counterclaim in their answer to Smith’s FOIA lawsuit.

In their counterclaim, they asked sanctions be levied against Smith “in the amount of court costs and attorney fees, and any other sanctions it deems fit and proper.“

A hearing on the commission’s and Butcher’s motion for sanctions is scheduled for tomorrow Monday February 27, 2012 at 11:45 AM before Judge Richard Facemire.

Since the courtroom will be open to the public during this hearing, we hope you will attend to see the fate of open government, and freedom of the press in Gilmer County.

G F P - 02.27.2012
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Gilmer County Family Court Report - 02.22.12

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Special Family Court Judge Nibert appeared in family court in Gilmer County on Tuesday, February 07, 2012 and hearing one domestic violence case.

Special Family Court Judge Nibert presided over Family Court on Wednesday, February 22, 2012.

All Family Court hearings are now held in the Annex building where the WVU Extension office vacated.


One case was continued until Wednesday, April 18, 2012 at 10:00 AM.


One contempt hearing was heard with contempt being denied but judgment being entered against defendant.


One case was heard and a visitation order was entered.


Two divorces were granted as follows:


Carolyn Small (29) of Burnsville, WV divorced Gregory Small (43) of Glenville, WV .


Miranda Fisher (19) of Burnsville, WV divorced Matthew Fisher (20) of Cedarville, WV .

Gilmer County Circuit Court Report - 02.22.12

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On Tuesday, February 07, 2012, Chief Judge Jack Alsop performed a marriage between Gregory Waddell and Keisha Marlatt.


He also heard 2 juvenile matters that day with further hearings scheduled for Monday, April 09, 2012 at 9:30 AM and March 07, 2012 at Wednesday, 9:00 AM.

On Wednesday, February 22, 2012:

Judge Richard A. Facemire conducted a juvenile hearing by video conference from Braxton County.

All other parties were present in Gilmer County and Sheriff Mickey Metz opened Court.

Following the hearing, Judge Facemire set the case for further hearing on Tuesday, May 29, 2012 at 9:00 AM.


State of West Virginia vs. John Gorzynski

The case was on the docket as well, but his hearing was continued until Thursday, February 23, 2012, when Judge Facemire presided over Court in Gilmer County.


He heard 4 juvenile cases and set further hearings in them for Tuesday, May 29, 2012 at 9:00 AM, Thursday, March 15, 2012 at 9:00 AM, and Monday, March 26, 2012 at 11:00 AM.


The case of State of West Virginia vs. John Gorzynski was heard in chambers rather than open Court.

He was represented by David Karickhoff of Sutton.


State of West Virginia vs. Roseann Shelton

She was before the Court for sentencing upon her former plea.

She was also represented by David Karickhoff and was sentenced to 3-15 years in the penitentiary with credit for all time served, including 60 days diagnosis and classification she had previously undergone.

Judge Facemire suspended her sentence and gave her 5 years probation with 100 hours of community service per year.

She must pay court costs within 18 months.

She must reside with her parents and obtain full time employment or enroll in school.


State of West Virginia vs. Mark Taylor

He was before the Court for revocation of probation, which allegations Taylor denied.

Due to defects in the petition the state moved to amend their petition, to which Daniel Grindo, defense counsel, objected.

Then Prosecutor Hough withdrew his motion and moved to dismiss the petition without prejudice (allowing him to refile), and Grindo again objected.

However the Judge granted the motion.

 

Judge Facemire will return to Gilmer County on Monday, February 27, 2012 for his regular monthly motion day with hearings scheduled until Noon that day.

 

Chief Judge Jack Alsop also presided over Circuit Court on Wednesday, February, 22, 2012.

He heard 2 juvenile cases and set further hearings.


Afterwards he presided over a Calhoun case he had been appointed to hear:

State of West Virginia vs. Christopher Todd Smith.

Smith’s attorney, Bernard Mauser of Sutton and Calhoun Prosecuting Attorney Rocky Holmes were present for the hearing, along with several witnesses.

After the hearing, Deputies Gerwig and Huffman transported Smith to Central Regional Jail.

G-FYI™: Gilmer County Circuit Court - Hearing Set for Monday on FOIA Lawsuit

image

Update - 02.26.12:


Related Document 1

Related Document 2

Related Document 3


===========================================


During a special meeting last month, the Gilmer County Commission released the details of settlement in the third-party lawsuit Summit Community Bank filed in federal court against the Clerk’s Office for improperly recording lien information on properties in the Rivers’ View Subdivision.

Through its insurance company, the commission paid Summit $40,000.

The details came a month after Lawrence J. Smith, a contributor with The West Virginia Record in Charleston, filed a lawsuit here in Gilmer County to compel its release.

During its regularly scheduled meeting on January 10, 2012, the Gilmer County Commission agreed with the recommendation of Prosecutor Gerry Hough to settle Smith’s suit, then sue him for frivolously filing it.

During the meeting, Hough said, “It is necessary to do this because we cannot allow the press to make the county look bad.“

The Commission and Jean Butcher, the County Clerk made good on their threat by including a counterclaim in their answer to Smith’s FOIA lawsuit.

In their counterclaim, they asked sanctions be levied against Smith “in the amount of court costs and attorney fees, and any other sanctions it deems fit and proper.“

A hearing on the commission’s and Butcher’s motion for sanctions is scheduled for tomorrow Monday February 27, 2012 at 11:45 AM before Judge Richard Facemire.

Since the courtroom will be open to the public during this hearing, we hope you will attend to see the fate of open government, and freedom of the press in Gilmer County.

Braxton Businessman Says Formica Sold Him a Faulty Countertop

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The WV Record Reports:

A Braxton County man is suing Formica Corporation for a defective countertop he purchased from the company.

Roger Hall, who is doing business as Hall’s Kitchens, purchased solid surface countertop materials from the defendant and installed the solid surface countertop on February 01, 2002, according to a complaint filed February 01 in Kanawha Circuit Court.

Hall claims the countertop has cracked several times.

Prior to purchasing the countertop, the defendant required Hall to be trained and certified in the installation of their solid surface materials by a Formica representative, according to the suit.

Hall claims at the time of the purchase and installation of the countertop, the defendant advised him that the solid surface countertop was protected by a 10-year warranty and it would repair, replace or refund the costs of its product resulting from a manufacturing defect.

The defendant knowingly, intentionally and unlawfully refused to honor its warranty, according to the suit.

Hall claims the countertop is not merchantable, is defective and does not conform to the properties of the product as represented by the defendant.

Formica’s refusal and failure to honor its warranty is a breach of warranty, according to the suit.

Hall is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by April D. Ferrebee.

The case has been assigned to Circuit Judge Tod J. Kaufman.

Kanawha Circuit Court case number: 12-C-212

~~  Kyla Asbury - WV Record  ~~

GSC Students Present Research Projects to Legislators

Glenville State College was well represented at the 9th annual Undergraduate Research Day held in the West Virginia State Capitol rotunda on Thursday, January 26, 2012.

Three GSC students, Hillary Harold, Marilynn Burkowski and Ryan Thomas, were among the approximately one-hundred students from colleges and universities in West Virginia who were selected to present their undergraduate research projects to members of the state legislature.

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Glenville State College was well represented at the 9th annual Undergraduate Research Day
held in the West Virginia State Capitol rotunda on Thursday, January 26, 2012.

 

This event helps state lawmakers understand the importance of undergraduate research by talking directly with the students whom these programs impact.

“Research opens both intellectual and very real opportunities for students.

Presenting at the Capitol enabled these students to meet with their legislators and interact with students and faculty from other schools. I’m proud of the accomplishments of our students,“ said Dr. Milan Vavrek, GSC professor of Natural Resource Management and Land Resources Department Chair.

Marilynn Burkowski is a senior Natural Resource Management major with a concentration in Forest Technology. She lives in Glenville, West Virginia. Her research project, Exotic plant invasion in West Virginia, studied the threat that invasives pose to native species. “Participating in the Undergraduate Research Day at the Capitol was a great opportunity to share my research on invasive species with state legislators and interested citizens,“ said Burkowski.  Her research mentor was Dr. Rico Gazal, GSC Associate Professor of Forestry. “Marilynn’s research is important to everyone in West Virginia.  Exotic species have impacted our ecosystems and production of natural resources. It was a pleasure to observe people’s responses to her work,“ said Vavrek.

Ryan Thomas of St. Albans, West Virginia is also a senior majoring in Natural Resource Management with a concentration in Forestry. “Undergraduate Research Day was a great learning experience for all of us students. It helped us learn to communicate our ideas to others. I enjoyed seeing how other students and professors presented their research,“ said Thomas. His research, Long-term leaf phenology study in West Virginia, was conducted with Dr. Gazal. “Ryan’s research relating bud burst with elevation may suggest how the life-cycle of plant species may change with global warming. It is interesting to see the relationship using data from across West Virginia,“ stated Vavrek.

Hillary Harold is a junior who lives in Roane County, West Virginia and is majoring in Natural Resource Management. Her research project, Depth to permafrost of Eriophorum vaginatum across a latitudinal gradient in northern Alaska, was conducted with Dr. Vavrek. “Hillary did a great job summarizing her research. The research represents a lot of effort and a lot of time, and could be continued in graduate school,“ said Vavrek. Her research studied the effect of the permafrost on plant life in Alaska. The project was inspired by Harold’s internship with the National Science Foundation in Alaska last summer. “It was uplifting to know that we as students could show off our hard work and represent our institution among other institutions. It was a great future employer connection as well as meeting new friends and discussing possible popular future research ideas,“ said Harold.

“I am glad that Marilynn, Ryan and Hillary were able to present their research projects at this meeting. It was an excellent way to showcase the ecological projects in which our students are involved. The presentations also make everyone aware of our Natural Resource Management, Forestry and Environmental Science programs at GSC. Each of these students made a valuable contribution on key ecological issues such as early leaf appearance in the spring, proliferation of plant invasives in West Virginia, and the relationship between plant performance and soil temperature in Alaska. These issues are crucial to understand long-term effects of global climate change,“ said Dr. Gazal.

For more information about the Glenville State College Department of Land Resources, visit www.glenville.edu or call 304.462.4135.

WV Supreme Court: State vs. Jenkins

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STATE v. JENKINS

State of West Virginia, Plaintiff Below, Respondent,
v.
Henry Howard Jenkins, Defendant Below, Petitioner.
No. 11-0548.
Supreme Court of Appeals of West Virginia.
Filed: February 14, 2012.

________________________________________

MEMORANDUM DECISION

This appeal arises from the Circuit Court of Gilmer County, wherein the circuit court denied the petitioner’s motion for alternative sentencing. This appeal of the order denying his motion for alternative sentencing was timely perfected by counsel, with Petitioner Jenkins’s appendix accompanying the petition. The State responds in support of the circuit court order and also files an appendix.

This Court has considered the parties’ briefs and the appendices on appeal. The facts and legal arguments are adequately presented in the parties’ written briefs and the appendices on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendices presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules.

Petitioner was indicted for seven counts of incest against his daughter. He entered a no contest plea to the first two counts and by agreement with the State, the State dismissed the remaining counts with prejudice. At sentencing, the circuit court denied the petitioner’s motion for alternative sentencing and ordered the petitioner to serve two consecutive sentences of five to fifteen years, making his total sentence a period of ten to thirty years imprisonment. The petitioner’s counsel failed to file a timely appeal. Consequently, the petitioner filed a Petition for Post-Conviction Habeas Corpus on this ground and the circuit court granted the petitioner’s petition for relief. Accordingly, the circuit court set aside the petitioner’s sentence and scheduled the matter for re-sentencing. At re-sentencing, the petitioner again requested alternative sentencing through probation or home confinement. However, the circuit court again sentenced the petitioner to two consecutive sentences of five to fifteen years for each of his two convictions for incest.

On appeal, the petitioner argues that the circuit court abused its discretion in denying the petitioner’s request for either probation or home confinement. In support, the petitioner argues that he has not been heavily involved in the legal system within the last fifteen years; since 1996, he has not gone more than a few months without being gainfully employed; and his sex offender evaluation indicated that he is capable of participating in outpatient sex offender counseling behaviorally oriented with individual and group components to address his inappropriate sexual activities. Accordingly, the petitioner argues that he should have received either probation or home confinement in lieu of ten to thirty years imprisonment.

The State argues that the circuit court did not abuse its discretion. For a conviction of incest under West Virginia Code § 61-8-12, the circuit court may sentence an offender to a term of not less than five, nor more than fifteen years, with a possible fine of not less than $500.00, nor more than $5,000.00. The plea agreement between the petitioner and the State further provided that the petitioner acknowledged that “he may appeal if the sentence imposed by the [c]ourt upon his plea of `no contest’ exceeds the lawful limits . . . .“ The circuit court was justified in weighing any factors argued by the petitioner against the harm inflicted on the victim and was justified in taking into account the petitioner’s lack of remorse and attempt to shift blame to his young teenage daughter.

“`The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.‘ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).“ Syl. Pt. 1, State v. James, 227 W.Va. 407,710 S.E.2d 98 (2011). The directives provided in West Virginia Code § 61-8-12 are clear; the petitioner’s plea agreement as it pertains to his waiver of issues on appeal and the possibility of receiving the penitentiary sentence provided in West Virginia Code § 61-8-12 is clear. Nothing new developed in between the petitioner’s two sentencing hearings and the circuit court considered the petitioner’s pre-sentence investigation report in its decision. Accordingly, the circuit court did not exceed the lawful limits of West Virginia Code § 61-8-12 and did not abuse its discretion when it sentenced the petitioner to two consecutive terms of five to fifteen years imprisonment for his two convictions for incest.

For the foregoing reasons, we affirm the circuit court decision.

Affirmed.

Chief Justice Menis E. Ketchum, Robin Jean Davis, Brent D. Benjamin, Margaret L. Workman and Thomas E. McHugh, Justices, concurred.

WV Supreme Court: State vs. Reed

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STATE v. REED

State of West Virginia, Plaintiff Below, Respondent,
v.
Dustin Chad Reed, Defendant Below, Petitioner.
No. 11-0636.
Supreme Court of Appeals of West Virginia.
Filed: February 13, 2012.

________________________________________

MEMORANDUM DECISION

Petitioner Dustin Reed appeals the circuit court’s order denying his motion to reconsider sentence pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The appeal was timely perfected by counsel, with petitioner’s appendix accompanying the petition. The State has filed a summary response and a supplemental appendix. Petitioner has filed a reply brief.

This Court has considered the parties’ briefs and the appendix on appeal. The facts and legal arguments are adequately presented in the parties’ written briefs and the appendix on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendix presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules.

On July 07, 2009, petitioner was indicted by a Gilmer County Grand Jury on seven counts of forgery and uttering, one count of forgery, and one count of grand larceny. Petitioner thereafter entered a plea agreement with the State, and pled guilty to one count of forgery and one count of grand larceny. Pursuant to the agreement, the remaining charges were dropped. Following entry of the guilty plea, petitioner was sentenced to a term of one to ten years of incarceration for forgery, and a term of one to ten years of incarceration for grand larceny. These sentences were ordered to run consecutively to one another, and also consecutively to a prior criminal sentence from Braxton County, West Virginia. After sentencing, petitioner filed two separate Rule 35(b) motions seeking reconsideration of his sentence, both of which were ultimately denied.

On appeal, petitioner argues that the circuit court erred in denying the Rule 35(b) motion given the evidence presented and the nature of the offense, and also that the circuit court erred by improperly focusing on the petitioner’s previous convictions in Braxton County. Petitioner states that he is not a violent criminal, and has several children who have been adversely affected by his incarceration. Further, petitioner suffered from severe drug addiction at the time of his crimes, and has potential for rehabilitation. The societal benefit of putting petitioner on home confinement, he argues, is great because of the support his children are now lacking. As to his second assignment of error, petitioner alleges that there was no evidence presented to the circuit court regarding the status of his Braxton County conviction, and the circuit court erred by placing emphasis on the prior criminal acts in determining his sentence.

In response, the State argues that the circuit court’s denial of petitioner’s motion was well within its discretion and also supported by the record. Further, the State argues that the circuit court’s consideration of petitioner’s criminal record from Braxton County was permissible and within its discretion in determining an appropriate sentence. The State does note that while many factors petitioner sets forth in his petition may, and should, be considered in a sentencing decision, “nothing in this Court’s jurisprudence mandates that they should control in a case where, as here, the [p]etitioner has an exceptionally lengthy criminal history at such a young age.“ Citing petitioner’s pre-sentence investigation report, the State notes that he has been charged with no less than thirty-three prior felonies and misdemeanors, and also that he had previously violated the terms of a conditional release stemming from charges in Braxton County.

“`In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.‘ Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).“ Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Additionally, this Court has held that “`[s]entences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.‘ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).“ Syl. Pt. 1, State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010). West Virginia Code §§ 61-3-13(a) and 61-4-5(a) set out the crimes of grand larceny and forgery, respectively. Both code sections set the punishment for each crime at a term of one to ten years of incarceration in the penitentiary. As such, the petitioner was appropriately sentenced for the crimes as set forth in the statutes and the circuit court did not abuse its discretion in denying petitioner’s Rule 35(b) motion. Further, Rule 32 of the Rules of Criminal Procedure provides for the consideration of a criminal defendant’s full criminal history in rendering a sentence, as the same is to be included in a pre-sentence investigation report. As such, it was not impermissible for the circuit court to consider petitioner’s prior criminal charges in Braxton County during sentencing.

For the foregoing reasons, we find no error in the decision of the circuit court and the circuit court’s order denying petitioner’s Rule 35(b) motion is hereby affirmed.

Affirmed.

Chief Justice Menis E. Ketchum, Justice Robin Jean Davis, Justice Brent D. Benjamin, Justice Margaret L. Workman and Justice Thomas E. McHugh, concurred.

WV Supreme Court Justice Davis to Visit Gilmer County – 02.16.12

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WV Supreme Court Justice Robin Jean Davis will be visiting Gilmer County on Thursday, February 16, 2012.

She will be at the Courthouse from 11:15 AM to 12:15 PM to meet and greet with staff.

G-FYI™: GCHS Teacher Pleads No Contest

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Gilmer County High School teacher, Casey Smith, showed up in Wood County Magistrate Court on January 20, 2012.

Accused of providing alcohol to a minor last fall in a hotel room, Smith pled no contest.

He paid a one-hundred dollar fine and one-hundred sixty dollar court cost.

GFP - 02.14.2012
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Lawsuit Between Gilmer County Clerk and Virginia Bank Settled for $40K

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The WV Record Reports:

Following a lawsuit to compel its release late last year, Gilmer County officials made public last month details of the settlement in a dispute between the county clerk, and a Virginia bank.

Upon conclusion of a five-minute special meeting held Jan. 20, the Gilmer County Commission disclosed the details of the settlement reached in the third-party suit Summit Community Bank of Winchester, Va. filed against the clerk’s office in U.S. District Court in October 2010. In exchange for admitting no wrongdoing, the clerk’s office, via its insurance carrier West Virginia Risk Corp., agreed to pay Summit $40,000.

Summit filed suit against the clerk’s office after it was named as a co-defendant in a breach of contract suit filed in March 2010 by Textron Financial Corp. of Providence, R.I. In its suit, Textron alleged New Horizon Home Sales, an Athens, W.Va.-based modular home dealer, defaulted on paying them for property they helped New Horizon acquire in 2005 when New Horizon, three years later, sought permanent financing from Summit’s branch in Moorefield.

According to the suit, New Horizon purchased property in the Rivers’ View subdivision outside of Glenville along W. Va. Route 5 between the Otterbein United Methodist Church and the Gilmer Federal Corrections Institution. Records show New Horizon purchased the properties from Gilmer Housing Partners, a for-profit corporation managed by Glenville State College President Peter B. Barr, and located at his home on One Pioneer Way.

GHP was also named as co-defendant in the breach of contract suit, but was later dismissed a year later.

In its suit, Summit alleged it was brought into Textron’s suit unwittingly due to the clerk’s office failure to properly record lien information. Specifically, Summit alleged the clerk’s office violated state law when it did not list New Horizon’s president, Jack Jones, as a co-debtor on a Uniform Commercial Code fixture filing.

Records show, Summit reached a tentative settlement with the clerk’s office on Oct. 11.

Following the settlement, West Virginia Record contributor Lawrence Smith made efforts to find out the details, including repeated telephone calls to the clerk’s attorney, Wendy Greve, and through the filing of a Freedom of Information Act request. When the requested information was not forthcoming, Smith filed suit in Gilmer Circuit Court to compel its release on Dec. 23.

When asked how much of a deductible the county would be paying as a result of settling Summit’s claim, commissioners referred questions to Gilmer County Prosecutor Gerry Hough.

When contacted, Hough said the amount was $10,000 though the county had yet to receive a bill for it.

Gilmer Circuit Court case 11-C-29

~~  By Lawrence Smith   - The WV Record~~


GFP Note: This settlement does not include any attorney’s fee. The county still has to pay this fee in addition to $40k.

Injury Suit against Glenville State Set for August

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The WV Record Reports:


A Gilmer County man’s lawsuit against Glenville State College for injuries he sustained at a motel the College owns is slated for trial later this summer.

Kanawha Circuit Judge Carrie Webster has set Aug. 20 as the trial date in the case of Dale J. Norman v. Glenville State College, et. al. In his suit filed Oct. 4, 2010, Norman, 53, a Glenville resident, alleges he sustained third-degree burns to his feet when he attempted to take a bath two years earlier at the Conrad Motel.

According to the College’s Web site, the Glenville State College Housing Corporation, a non-profit arm of the College that aids in helping it acquire and construct property, purchased the 42-room building on July 1, 2008, from Susie Kidd Shipe, and her uncle, Jack Conrad, whose family first started a restaurant in 1926, and expanded their business into the motel three years later. According to the Gilmer County Assessor’s Office, GSCHC purchased the motel for $500,000.

GSCHC is named as co-defendant in Norman’s suit.

The reason GSCHC acquired the motel was to provide housing for law enforcement officers in Glenville for training conducted by the state Department of Military Affairs and Public Safety. However, rooms would still be available to the public especially in June during the annual Folk Festival.

Records show, both GSC and GSCHC filed their separate answers to Norman’s suit Nov. 12, 2010. With the exception of GSCHC admitting Norman did receive burns to his feet, and the hot water heater was not in his room, both it and GSC denied his allegations.

Also, they both asserted defenses, among other things, that they breached no duty owed to him, and any injuries he sustained were the fault of someone else including himself. Additionally, GSC asserted immunity from civil suits as a defense.

Furthermore, along with their answers, both GSC and GSCHC filed cross claims against each other. Both said should they be found liable for Norman’s injuries, the other should be made to compensate for its share of the negligence.

According to the Secretary of State’s Web site, GSC President Peter B. Barr is also president of GSCHC, whose office is located in the College’s business office in Bennett Hall. Aside from being both president of GSC, and GSCHC, Barr is the managing member of Gilmer Housing Partners, a for-profit corporation located at the home the College provides for him on One Pioneer Way.

Seven months before Norman filed his suit against GSC and GSCHC, GHP was named as a co-defendant in a separate and unrelated breach of contract suit over the Rivers’ View subdivision it developed along W.Va. Route 5 between the Otterbein United Methodist Church and the Gilmer Federal Corrections Institution. It was dismissed from the suit a year later.

Records show David J. Mincer and Benjamin P. Warder with the Charleston law firm of Bailey and Wyant represent GSC while Debra Tedeschi Varner with the Clarksburg law firm of McNeer Highland McMunn and Varner represents GSCHC.

A mediation session was scheduled for Sept. 13. However, Norman’s attorney Doug Miley said he was postponed due to the need to conduct additional discovery.

Kanawha Circuit Court case 10-C-1767

~~  By Lawrence Smith   - The WV Record~~

Gilmer County Circuit Court Report – 02.01.12

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On Wednesday, February 01, 2012 Judge Richard A. Facemire held Court in Gilmer County.

Imprisonment Status:  Pre-Trial Felon

Jason Wright

Full Name: Wright,  Jason
Height: 6’  0”
Weight: 172 lbs.
Birth Date: 03.16.1989
Gender:

Male

Booking Date: 01.27.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11E-43 GILMER COUNTY - Bail Amount: $0.00


•  One fugitive from justice, Jason Wright waived extradition back to his state of Maryland.

He was represented by David Karickhoff of Sutton.

Authorities in Maryland have until 4:00 PM on Monday, February 13, 2012 to pick Wright up or he will be released from Central Regional Jail.

 

Imprisonment Status:  Pre-Trial Felon

John Gorzynski

Full Name: Gorzynski,  John
Height: 6’  1”
Weight: 195 lbs.
Birth Date: 08.24.1965
Gender:

Male

Booking Date: 10.02.2011
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
Mag11F-100 became 11F13 in CIR GILMER COUNTY - Bail Amount: $50,000.00
11F- BRAXTON COUNTY - Bail Amount: $50,000.00
MAG11F-108,11M-312 - (CIR 11F13) GILMER COUNTY - Bail Amount: $25,000.00
MAG11F-106,107- (CIR 11F13) GILMER COUNTY - Bail Amount: $100,000.00
11M-311 GILMER COUNTY - Bail Amount: $500.00

•  State of West Virginia vs. John Gorzynski

He pled to daytime entering without breaking and the prosecutor dismissed the remaining charges against him.

He will be sentenced on Monday, March 26, 2012 at 10:30 AM and was represented by David Karickhoff.

 

Imprisonment Status:  Pre-Trial Felon

Mark Arron Ward

Full Name: Ward,  Mark Arron
Height: 6’  1”
Weight: 170 lbs.
Birth Date: 12.12.1974
Gender:

Male

Booking Date: 08.15.2011
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11M-259,260,263, 11F-71,72,73 GILMER COUNTY - Bail Amount: $150,000.00

•  State of West Virginia vs. Mark Ward

He pled guilty to the information filed against him charging him with attempting to operate a clandestine drug lab.

All other counts pending against him as bound overs from magistrate court will be dismissed against him at sentencing, which is now set for Monday, March 26, 2012 at 10:15 AM.

Judge Facemire accepted his plea conditionally at this time.

Ward was also represented by Karickhoff.

Ward’s bond was also modified to allow him to communicate with his wife and children.

 

Imprisonment Status:  Convicted Felon

Joshua Allen Hoover

Full Name: Hoover,  Joshua Allen
Height: 6’  1”
Weight: 205 lbs.
Birth Date: 08.29.1989
Gender:

Male

Booking Date: 11.15.2011
Facility: Central Regional Jail
Imprisonment Status: Convicted Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
  GILMER COUNTY - Bail Amount: $0.00

•  State of West Virginia vs. Joshua Hoover

He was also scheduled for plea, but his case was continued to the next term of court (March, 2012).


•  Civil case of Frances Frame vs. John Frame

There will be a bench trial on the constructive trust issue on Thursday, March 15, 2012 at 9:00 AM.


•  One juvenile case was heard.

Gilmer County Family Court News – 02.01.12

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Special Family Court Judge Jeffrey Hall conducted Family Court hearings in the Gilmer County Commission room on Wednesday, February 01, 2012.


•  One domestic violence case was heard and granted.

•  Two contempt hearings were heard

•  Temporary orders were entered in 2 child support cases.

•  One order for genetic testing was entered.

Gilmer County Man in Intensive Care, But Officers Deny Hurting Him

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A Gilmer County man is in the hospital due to severe injuries he suffered after his arrest by law enforcement officers on Saturday, January 28, 2012.

According to a Criminal Complaint filed Sheriff Department with Gilmer County Magistrate Court, on Thursday, January 26, 2012, Gilmer County Sheriff Deputy Benton Huffman responded to assist West Virginia State Police Trooper Raynor on a Welfare check on Dry Fork Road in Gilmer County. [01.26.12 is the date the complaint indicates the incident happened which differs from the actual date and the date 01.28.12 the Central Regional Jail has]

When they arrived on the scene, State Police Trooper Raynor spoke to Mr. Singelton and asked him where his son Rodney Singleton was.

Soon the officers found out he was not there.

According to the criminal complaint filed by Deputy Huffman, when Trooper Raynor and Deputy Huffman were getting ready to leave, Mr. Singleton started yelling about an accident report Deputy Huffman had done a year ago.

Deputy Huffman then states: When Trooper Raynor and I were leaving, Trooper Raynor walked out of the garage and I was following him when Mr. Singleton struck me in the left arm. At that point I arrested Mr. Singleton for Battery on a Police Officer and transported him to the Central Regional Jail. While enroute to the jail, Mr. Singleton informed me that the handcuffs were hurting his hands and I pulled over to check the handcuffs and noticed that they had slid down his wrists.  There were abrasions on both of his hands from the handcuffs. I retrieved some gauze from my first aid kit and got the bleeding stopped then continued the transport to the Central Regional Jail.

Details at this point are not clear as to how Mr. Singleton suffered so many injuries to the point he had to be taken to intensive care in Ruby Memorial Hospital in Morgantown.
Mr. Singleton’s family filed a complaint with Gilmer County Magistrate Court. At such time Gilmer County Sheriff would not take the complaint citing he was not available due to a medical problem leaving his deputies again to perform his duties.

According to some reports, Mr. Singleton was hit by the officers, blacked out, and woke up as officers were putting handcuffs on him.

When asked about the whereabouts of the Trooper Raynor, Deputy Huffman stated he just left after the arrest.

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Following is a statement released by a member of Mr. Singleton’s family:

On January 28, 2012, a local Gilmer County resident received a visit from a Gilmer County Deputy Sheriff Ben Huffman and State Policeman Raynor for a health and welfare check.
Don Singleton, the local resident, age 76 with a hearing impairment was sitting in his garage with nothing wrong with him at the time.  The sheriff’s department had no warrants.  They entered the Singleton residence where a verbal altercation ensued as a result. Mr. Singleton was arrested for battery on a police officer. According to the sheriff’s deputy, they did nothing wrong.

Mr. Singleton is currently in Ruby Memorial hospital where he was in critical condition.  He had blood on the brain from head injuries.  His hands were also solid black and blue.  There are knots up and down his back and on his legs.

Take warning Senior Citizens, the Gilmer County Sheriff’s department works for you.  Are you next?

There is a procedure that law enforcement is supposed to follow and what they did was not right.  As a taxpayer, Mr. Singleton was not properly treated.  Gilmer County, wake up and see what’s going on!  This could be your Dad or Mom.  Who is next?

Mr. Singleton never called the law enforcement, didn’t know they were coming, and didn’t invite them into his residence.  Once they were told the individual they were looking for was not there, they should have left, but that was not the case.

GFP - 02.01.2012
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Gilmer County Family Court Report – 01.27.12

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Helen Spade (64) of Normantown, WV Divorced Benjamin Spade (69) of Oberlin, Ohio on January 27, 2012.


Erlina Singleton (47) of Normantown, WV Divorced Basil Singleton (52) of Buckhannon, WV on January 27, 2012.


Traci Montgomery (20) of Normantown, WV Divorced Jeremy Montgomery (23) Of Linn, WV on January 27, 2012.

Gilmer County Circuit Court Report - 01.26.12

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Judge Richard A. Facemire appeared in Gilmer County on Wednesday, January 25, 2012 for his regular monthly motion day, which had been rescheduled from Monday, January 23, 2012.


Four fugitive from justice cases were heard and all 4 waived extradition back to their respective states:


•  Josue Ferrera waived to return to New York.

Nancy Aviles served as interpreter for him since he did not understand the English language very well.

 

Brian Perry  waived to return to Pennsylvania.

Imprisonment Status:  Pre-Trial Felon

Brian Timothy Perry

Full Name: Perry,  Brian Timothy
Height: 6’  3”
Weight: 385 lbs.
Birth Date: 08.11.1960
Gender:

Male

Booking Date: 01.13.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11E-38 GILMER COUNTY - Bail Amount: $0.00

 


•  Tremayne Davis waived to return to Virginia.

Imprisonment Status:  Pre-Trial Felon

Tremayne Amond Davis

Full Name: Davis,  Tremayne Amond
Height: 5’  9”
Weight: 155 lbs.
Birth Date: 04.21.1989
Gender:

Male

Booking Date: 01.13.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11E-42 GILMER COUNTY - Bail Amount: $0.00

Rodney Williams waived to return on Ohio.

Imprisonment Status:  Pre-Trial Felon

Rodney Terrell Willians

Full Name: Williams,  Rodney Terrell
Height: 6’  0”
Weight: 250 lbs.
Birth Date: 02.19.1974
Gender:

Male

Booking Date: 01.20.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11E-39 GILMER COUNTY - Bail Amount: $0.00

All 4 fugitives were represented by Daniel Grindo of Gassaway.


•  Two juvenile cases were dismissed.

•  Another juvenile case was heard and reset for status on Monday, April 23, 2012 at 9:00 AM.

•  Another juvenile case was heard and reset for Thursday, February 23, 2012 at 9:00 AM.


•  The civil case of Frances Frame vs. John Frame was before the court for a status hearing.

A scheduling conflict arose and plaintiff’s attorney, William Richardson Jr. , could not appear but Timothy Butcher appeared for the defense.

After getting Richardson’s secretary on the telephone, Judge Facemire set a new scheduling conference for Wednesday, February 01, 2012 at 9:00 AM when he will set a new pretrial and trial date.


•  State of West Virginia vs. Yarica Jackson

She was before the Court for reconsideration of her sentence, which the Judge denied.

She was represented by Kevin Hughart of Sissonville.


•  State of West Virginia vs. Jason Pritt

He was before the Court and agreed to allow the prosecutor to file information against him charging conspiracy.

Judge Facemire agreed to conditionally accept his plea and ordered a pre-sentence investigation by the probation officer, Tara Kennedy.

He will be sentenced on Thursday, March 08, 2012 at 9:00 AM.

Pritt was represented by Clint Bischoff of Summersville.


•  State of West Virginia vs. Mark Ward

He was before the Court for information to be filed against him as a co-defendant of Jason Pritt.

However, his attorney asked for his case to be rescheduled and it will now occur on Wesdnesday, February 01, 2012 at 9:00 AM.

He is represented by David Karickhoff of Sutton.


•  State of West Virginiavs. Roseann Shelton

She was scheduled for sentencing but her attorney informed the Court that she was in the hospital.

Judge Facemire asked for a medical statement regarding her hospitalization and reset her sentencing for Thursday, February 23, 2012 at 11:00 AM.


•  State of West Virginia vs. Danny Reaser

He was before the Court for sentencing and he was sentenced to not less than 1 nor more than 5 years in the penitentiary.

However, his sentence was suspended and he was placed on 5 years probation and must pay court costs within 18 months.

He was also represented by Kevin Hughart.


•  State of West Virginia vs. Joshua Hoover

He was before the Court and moved for a new bond, which was denied.

He is going to enter a plea at 9:00 AM on Wednesday, February 01, 2012.

He was represented by David Karickhoff.


•  One guardian hearing was granted and one was revoked.

 


Chief Judge Jack Alsop presided over Court this morning in Gilmer County.


•  One fugitive from justice waived extradition back to his state of Oklahoma.

Imprisonment Status:  Pre-Trial Felon

Mario Mejia-Zarza

Full Name: Mejia-Zarza,  Mario
Height: 5’  9”
Weight: 160 lbs.
Birth Date: 08.13.1985
Gender:

Male

Booking Date: 01.25,2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11E-44 GILMER COUNTY - Bail Amount: $0.00


•  Mario Mejia-Zana was represented by David Karickhoff and authorities have until 4:00 PM on Wednesday, February 01, 2012 to pick Mario up or he will be released from Central Regional Jail.


•  Two juvenile cases were also on the docket.

GFP - 01.27.2012
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Gilmer County Family Court Report - 01.26.12

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William R. Wood (50) of Glenville divorced Rhonda Wood (49) of Normantown, WV on January 25, 2012.

West Virginia AG Settles with Capital One

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The office of West Virginia Attorney General Darrell McGraw has announced a settlement totaling more than $12 million with Capital One in connection with credit card services.

Chief Deputy Attorney General Fran Hughes says the office received more than 600 complaints about Capital One practices between 2001 and 2006.

She says the company and its representatives were saddling some consumers with debt that had previously been deemed non-collectable and providing add-on services to credit cards that consumers really did not want or need.

Following battles in circuit court, the West Virginia Supreme Court, U.S. District Court and finally the U.S. Supreme Court, the two sides reached a settlement.

The case was scheduled to go on trial in Mason County in April.

Capital One has agreed to provide $3 million in debt forgiveness to West Virginia consumers.

Hughes says the debt will disappear from credit card statements.

She says there will also be financial relief for other consumers who complained about the add-on services.

The settlement also includes $9.5 million for the state Legislature to allocate to help consumers.

“We’ve been in discussions (with state lawmakers). There’s a lot of need,“ Hughes said. “I’m sure they’ll find a way to use that money in a way that complies with the court order.“

Hughes commends Capital One for changing its practices.

“We’re pleased to have worked with Attorney General McGraw to resolve this matter which dates back to a time prior to 2006,” Capital One spokesperson Tatiana Stead said. “We’ve since made significant improvements and look forward to continuing to serve our credit card customers in West Virginia.”

Consumers who were impacted by the practices are asked to call the state Attorney General’s Office.

Others who have already filed complaints will be notified of the settlement.

Gilmer County Commission Special Meeting Report – 01.20.12

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The Gilmer County Commission met in a special meeting on Friday, January 20, 2012 in an effort to conduct the following business:

Settlement of Lawsuit: Textron Financial Corp (Plaintiff) vs. New Horizon Home Sales, Inc., Gilmer Housing Partners, LLC, Summit Community Bank, (Defendants) and Summit Community Bank, Inc. and (Third-Party Plaintiff), vs. Office of the Clerk of the Gilmer Commission, and Jack D. Jones (Third Party Defendants.)


The following is the timeline of the meeting:


•  8:58 AM – Commissioners Kennedy, Hess, and Ramsey as well as County Clerk Jean Butcher enter the commission room for the meeting.

Tim Farmer, the County Administrator; Lawrence Smith from The WV Record,  Dendra Miller from Glenville Democrat, and Dave Ramezan from The Gilmer Free Press were already in the room.


•  9:00 AM – Commission President Brian Kennedy calls the meeting to order and asks everyone to pledge allegiance to the flag.

The Pledge starts and Gerry Hough, the Gilmer County Prosecutor enters the room.


•  9:01 AM – Gerry Hough asks the commissioners whether anyone from the news were present!


•  9:02 AM – Brian Kennedy calls for executive session for the Commissioners, Gerry Hough, and Jean Butcher.

Everyone else leaves the room.


•  9:04 AM – Executive session ends and everyone returns to the room.


•  9:05 AM – Brian Kennedy makes a motion to accept the settlement.

Motion Seconded and passes unanimously.


•  9:05 AM – Kennedy asks the commissioners for any comments and in the absence of it he makes a motion to adjourn the meeting.

Meeting is adjourned.


•  News reporters ask whether they can have a copy of the settlement and Jean Butcher makes copies of the settlement and provides it to the reporters.

 

According to the settlement it cost the Gilmer County taxpayers $40,000.00 for wrongdoing by the previous Gilmer County Clerk, Beverly Marks, and was suggested by prosecutor and approved for payment by the Commission.

Due to too much secrecy and the nature of this lawsuit, any additional costs are not known at this time.


Click to Read the Printable Copy of the Settlement

U.S. Supreme Court blocks West Virginia Redistricting Ruling

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West Virginia can run its congressional races with the redistricting map recently struck down by a panel of federal judges, after the U.S. Supreme Court agreed to stay the ruling.

Citing the looming election timetable, state officials had petitioned the nation’s highest court for a stay pending an appeal of the January 03, 2012 decision.

West Virginia’s three seats in the U.S. House of Representatives are on the ballot this year.

Candidate filings for all 2012 races began last week, and ends January 28, 2012.

The primary is May 08, 2012.

By 2-1, the U.S. District Court panel concluded that state officials failed to justify why the redrawn 2nd Congressional District contained several thousand more people than the other two.

Those judges later relented on a January 17, 2012 deadline for officials to submit a new plan, or have one imposed, but also barred the targeted map from this year’s elections.

In the wake of the 2010 Census results, the Legislature had merely moved one county—Mason—from the 2nd District to the 3rd District.

The Jefferson County Commission challenged that redrawing, and was joined by Kanawha County lawyer Thornton Cooper.

The plaintiffs argue that this redistricting failed to provide equal representation as called for by both the West Virginia and U.S. constitutions.

They invoked a 1983 U.S. Supreme Court decision that requires districts as exactly equal as possible unless state officials have explained valid public policy reasons.

The state Senate and House of Delegates passed this plan during an August special session by nearly unanimous and bipartisan margins.

Lawyers for state officials defending the plan have cited that outcome, and how the new maps for the legislative districts spurred far more conflict among lawmakers.

The plaintiffs also allege that the 2nd District, which stretches across West Virginia from the Ohio River to the Blue Ridge Mountains, violates the state constitution’s mandate for compact districts.

They argue that this unfair outcome stems from the redistricting that followed the 1990 Census, when the state lost a U.S. House seat.

The Jefferson County Commission opposed the stay, and its lawyers instead advocated for an alternative redistricting proposal introduced Monday in the state Senate.

The Legislature’s 60-day regular session started last week.

At least two other redistricting bills have also surfaced this week.

Gilmer County Family Court Report – 01.18.12

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Special Family Court Judge Jeff Hall from Webster County presided over Family Court in Gilmer County on Wednesday, January 18, 2012.


•  One divorce was finalized: Robyn Ellison (31) of Burnsville divorced Joshua Ellison (27) of Glenville.


•  A temporary order was entered in another divorce case.

•  One other divorce was granted but the order is still being prepared.

•  One divorce was dismissed.

•  Another divorce hearing was rescheduled prior to the Family Court Judge appearing.


•  At Noon the Judge performed one marriage between James Edward Ash and Susan Shaw.

Gilmer County Family Court – 01.11.12

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Special Family Court Judge Deloris J. Nibert appeared in Gilmer County on Wednesday, January 11, 2012 and heard cases as follows:


Four divorces were granted, namely:

•  Jazzmin Lee Hicks (24) of Glenville, WV DIVORCED Mitchell Grey Hicks of Grundy, VA.

•  Jennifer Miner Woodford (37) of Glenville, WV DIVORCED Robert L. Woodford II (38) of Cox’s Mills, WV.

•  Jessica Pounds (24) of Glenville, WV DIVORCED Todd Pounds (24) of Glenville, WV.

•  Rebecca L. Reed (45) of Sand Fork, WV DIVORCED Richard Paul Reed (55) of Galloway, OH.


•  A temporary hearing was heard in the case of Gloria and Richard Shaffer.


•  Two divorce cases were rescheduled.

Lewis County Woman Says Man Discriminated Against Her

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A Lewis County woman is suing a man she claims subjected her to unwelcome offensive comments, solicitations and touching based on her gender.

Two other individuals, Charles E. Heilmann and Christopher G. Atkins, were also named as defendants in the suit.

Brenda A. Miller was employed by EQT Corporation, where she worked as a “Landman II” in its Production-Land Department according to a complaint filed December 15, 2011, in Kanawha Circuit Court.

Miller claims Heilmann was her supervisor, and that she also worked with James L. Malfregeot.

During her employment, Miller was subjected repeatedly to unwelcome offensive comments, solicitations and touching by Malfregeot based on her gender, according to the suit.

Miller claims although she requested Malfregeot to stop the conduct, he continued to do so.

Despite reporting the conduct to Heilmann, Miller was still subjected to the conduct by Malfregeot, according to the suit.

Miller claims after she reported Malfregeot’s conduct to Heilmann, Heilmann began to engage in a pattern of retaliation against her, including yelling at her in front of her colleagues for the purpose of embarrassing her, excluding her from e-mails related to major projects, refusing to speak to her, ridiculing her in front of her colleagues and threatening to place her on a performance improvement plan for reasons related to Malfregeot.

On November 14, 2011, Miller was informed by Heilmann and Atkins that she was being suspended without pay because it was “necessary to conduct an investigation to determine if she was making excessive use of the Internet during work hours,“ according to the suit.

Miller claims she informed Atkins of Malfregeot’s conduct and the retaliation she had been subjected to by Heilmann, but on November 25, 2011, she received her personal belongings in the mail and the following day, received a letter from Atkins terminating her employment for “2011 performance failures” and for “spending significant amounts of work time surfing personal, non-business related websites.“

The defendants unlawfully discriminated against Miller and unlawfully terminated her employment, according to the suit.

Miller is seeking compensatory and punitive damages. She is being represented by Maria W. Hughes.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 11-C-2232

~~  by Kyla Asbury - WV Record  ~~

WV Record Reports on Gilmer Lawsuit – 01.12.12

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The WV Record Reports:


Reporter files suit to compel release of dispute between Gilmer Clerk, Va. Bank

1/12/2012 9:57 AM By Chris Dickerson -Kanawha Bureau

GLENVILLE - A freelance journalist is suing Gilmer County officials for failing to respond to his repeated requests for information about details in a lawsuit settlement involving a housing project with ties to Glenville State College.

Gilmer County Clerk Jean Butcher and the Gilmer County Commission are named as co-defendants in a Freedom of Information Act lawsuit filed by Jay Lawrence Smith.

In his complaint filed Dec. 23 in Gilmer Circuit Court, Smith, a regular contributor to The West Virginia Record, is asking a judge to compel release of details in the settlement reached late last year in a suit Winchester, Va.-based Summit Community Bank brought against the clerk’s office alleging an improperly recorded lien caused them to be an unnecessary defendant in a breach of contract suit.

According to his suit, Smith learned a tentative settlement was reached between Summit and the clerk’s office on Oct. 11. A year before, Summit filed a third-party complaint alleging they were improperly sued in March 2010 by Textron Financial Corporation in U.S. District Court in Clarksburg over disputed property in the Rivers’ View subdivision along W.Va. 5 near the medium security federal prison outside Glenville.

In its suit, Summit said had it not been for a defective Uniform Commercial Code fixture filing recorded by the clerk’s office, they wouldn’t be involved in Textron’s suit. Specifically, they alleged the clerk’s office did not follow state law by recording New Horizon as a co-debtor on the fixture filing along with Jack Jones, its president.

In its complaint, Textron, a Providence, R.I.-based commercial financing firm, alleged New Horizon, an Athens, W.Va.-based modular home dealer, defaulted on paying them for property they helped New Horizon acquire in Rivers’ View in 2005 when New Horizon, three years later, sought permanent financing from Summit’s branch in Moorefield. Textron sought judgment against New Horizon, Summit and Gilmer Housing Partners for $270,166.77, the proceeds from the sale of the initial two lots, and two other lots they helped New Horizon finance.

Records show GHP was the original owner of the properties. According to the Secretary of State’s Office, it is a for-profit corporation whose address is One Pioneer Way in Glenville, the home of Glenville State President Peter B. Barr, GHP’s sole incorporator and manager.

GHP was dismissed as a co-defendant in Textron’s suit on March 30, 2011. Two weeks before that, Judge Frederick M. Stamp granted Textron’s motion for summary judgment finding it was the superior lienholder on at least one of the properties in question, and ordered New Horizon to pay the entire judgment plus interest.

Upon learning of the settlement between Summit and the clerk’s office, Smith called Summit’s attorney, Edward McDevitt, for the details. When contacted, McDevitt told Smith “‘You’ll need to speak to their attorney about that.‘“

Shortly thereafter, Smith called Wendy Greve, the clerk’s attorney, about the terms of the settlement. When he was unable to speak with her, he left a voice-message requesting information about it.

The next day, Smith sent a FOIA request to Butcher. In his request, Smith requested, among other things, what the county paid Summit to settle the suit, and what it paid Greve to defend the clerk’s office.

According to his suit, Smith sent the FOIA request to both Butcher, and the Commission via e-mail, fax and U.S. Mail.

When Smith failed to receive a reply from Butcher within the statutory five days, he sent a second FOIA request dated Oct. 22. Again, it was sent to Butcher, and the Commission via e-mail, fax and U.S. Mail.

When Smith again failed to receive a reply to his second request within another five days, he sent a third FOIA request dated Nov. 11. The request not only was sent to Butcher, and the Commission via e-mail, fax and U.S. Mail, but also warned that if a reply was not received by Nov. 16, Smith would file suit to compel release of the settlement in circuit court.

According to his suit, Smith made repeated phone calls to Greve, including the day before he filed it, “seeking the terms of the settlement.“ However, “[a]ll the calls he made to Greve were routed to voice-mail, and never returned.“

Along with an order compelling release of the settlement between Summit, and the clerk’s office, Smith seeks a permanent injunction requiring Butcher and the Commission “to undergo training for better understanding of [the FOIA law], and implement a plan for more timely responses to FOIA requests.“

Smith is representing himself. The case is assigned to Judge Richard A. Facemire.

Second suit in a week

The suit is the second FOIA lawsuit Smith filed the week before Christmas against county officials. On Dec. 19, Smith filed suit in Cabell Circuit Court against Karen Cole, and the Cabell County Commission seeking release of the death certificate of a woman who died at the hands of a former Mason County physician.

In that suit, Smith alleged Cole has prevented the public from learning about the details of a wrongful death suit the estate of Helen Ziegler filed against Dr. Jack M. Levine in 2000 due to Cole’s misinterpretation of a 2006 revision to the state code on vital statistics. Despite informing her how he was able to access death records in Mason, Jackson, Putnam, Marion, Wood and Kanawha counties, Cole continued to deny Smith access to Ziegler’s death certificate citing the law, and accusing the other clerks of improperly providing access to death records in their counties.

Similar to his suit against Butcher, and the Gilmer Commission, Smith asked for not only a court order compelling Cole and the Cabell Commission to release the Ziegler death certificate, but also undergo training for better understanding of the FOIA law, and implementation of a plan for better responses to FOIA requests.

Since the filing of his suit in Cabell County, Cole and the Commission, through their attorney William T. Watson, asked they be dismissed since the law is on their side, and they recover court costs, and Watson’s fees.

Gilmer Circuit Court case number 11-C-29

GFP - 01.13.2012
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Gilmer Commission Advised by Prosecutor to Settle with, then Sue Reporter over FOIA Lawsuit

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The Gilmer County Commission is planning on settling a Freedom of Information Act lawsuit filed against them last month by a Charleston reporter, then bring one of their own against him for filing it.

During its regularly scheduled meeting on Tuesday, January 10, 2012, the Gilmer County Prosecutor Gerry Hough briefly discussed the FOIA lawsuit Lawrence J. Smith, a reporter with The West Virginia Record, filed against the commission, and County Clerk Jean Butcher on December 23, 2011.

In his suit, Smith asked Judge Richard Facemire to compel Butcher and the commission to release details of the settlement reached in October in the lawsuit Summit Bank filed against Gilmer County Clerk (Beverly Marks) for improperly recording lien information for properties in the Rivers’ View subdivision.

The subject of Smith’s lawsuit, while not on the agenda, was broached by County Prosecuting Attorney Gerry Hough, who was on the agenda to present a check for back taxes from Union Corp.

Neither the commission nor Butcher responded to Smith’s request for the settlement details prior to filing his lawsuit as they did not have it, Hough said.  However, now that they do, he asked the commission’s permission to send it to him in exchange for him agreeing to dismiss his suit.

All three commissioners, President Brian Kennedy, David Hess, and Darrell Ramsey said nothing, but nodded their heads in agreement.

Also, the commissioners gave their approval to Hough filing a lawsuit against Smith after he agrees to dismiss his FOIA suit.  The suit, Hough said, would be to teach him a lesson about filing what he deemed to be a “frivolous” lawsuit.

“It is necessary to do this because we cannot allow the press to make the county look bad,“ Hough said.

The commissioners again only nodded their heads in agreement.

Then the commissioners entered into executive session with Gerry Hough.

After that, Hough left the meeting.  Prior to him leaving, nothing was disclosed about how much the county paid to settle the Summit Bank lawsuit.

G-otcha™: Weston Resident Sentenced for Attempted Transfer of Obscenity to a Minor

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A Weston, West Virginia, resident was sentenced on January 06, 2012, in United States District Court in Clarksburg by Judge Irene M. Keeley.

United States Attorney William J. Ihlenfeld, II, announced that:


•  ADAM EDWARDS was sentenced to 33 months imprisonment to be followed by three years of supervised release.

EDWARDS entered a plea of guilty on September 19, 2011, to attempting to transfer obscenity to a minor in Bridgeport, West Virginia, on November 22, 2010.

EDWARDS was remanded to the custody of the United States Marshal pending designation to a Federal institution.

The case was prosecuted by Assistant United States Attorney David J. Perri and was investigated by the Bridgeport Police Department.

Federal Court’s Three-Judge Panel Denies Stay for Congressional Maps

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A federal three-judge panel has denied state leaders’ request for a stay on a ruling that declares the state’s new congressional districts unconstitutional.

However, the panel lifted a January 17, 2012 deadline for the Legislature to pass new maps.

To Read the order click H E R E

That means lawmakers will have to come up with new congressional districts in time for the May 08, 2012 primary.

Leaders in the state House and Senate have indicated they plan to appeal the lower court’s decision to the U.S. Supreme Court.

“(The order) goes on to basically suggest that we go forward with our appeal,“ said state Sen. President Jeff Kessler, D-Marshall.  “If we go forward with our appeal to the Supreme Court and they grant the appeal, then obviously their order will be mooted.“

Kessler, along with House Speaker Rick Thompson, D-Wayne, and Governor Earl Ray Tomblin are among those who say redistricting is a legislative priority and should not be left up to the courts.

Kessler says he is confident the maps will be upheld.

“I think there is a significant likelihood the Supreme Court will grant our appeal, based on prior precedent,“ Kessler said. 

However, if the Supreme Court denies the appeal, new maps will have to be put in place prior to the May 08, 2012 primary election.

 The federal panel originally said it would impose a map itself if the Legislature failed to develop its own map.

While the appeal goes forward, lawmakers will work to create alternative maps, Kessler said.

“We are trying to have all our bases covered,“ Kessler said.  “As we go forward with the appeal if we are not successful we want to be ready to immediately implement a new plan.“

Kessler also says regardless of the Supreme Court’s decision, he wants to reduce the variance between the largest district and smallest district.

The variance is currently more than 4,000 residents.  

The Jefferson County Commission originally filed the lawsuit, claiming the congressional districts did not uphold the principle of one person, one vote.  South Charleston attorney Thornton Cooper later joined the case.

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