West Virginia Senate Passes Pay Increase for Most Judges
The West Virginia Senate has passed a bill that would result in an increase in take-home pay for about 60% of the state’s judges.
The bill passed Wednesday unanimously lowers the amount that judges pay into their pension plan. Forty-one of the state’s 70 judges participate in the plan.
The pension plan is funded by employer and employee contributions. It is currently overfunded.
The bill would reduce judges’ contributions from 10.5 to 7% of their salaries for the next fiscal year. After that the contribution rate would be set by the fund’s actuaries.
Senate Majority Leader John Unger said the change would mean a $4,160 pay increase for affected judges.
Court administrators said that the fund has consistently returned excess money to the state.
Gilmer County Family Court Report – 03.25.13
• Lawrence G. Marks II (50) of Glenville divorced Christina A. Marks (36) also of Glenville on Thursday, March 14, 2013.
Three matters were heard by Family Court Judge on Wednesday, March 20, 2013:
• One domestic violence was granted.
• An allocation of custody petition-was finalized.
• A second domestic violence petition was terminated.
• June Julie Turner (61) of Glenville, WV divorced Richard Bruce Berub (61) of Burnsville, WV on March 25, 2013.
Gilmer County Circuit Court Report – 03.25.13
On Thursday, March 21, 2013, Judge jack Alsop heard a juvenile proceeding by video conference from Clay County where he was presiding over a term of Court.
Further hearing was scheduled for 1:00 Friday, April 19, 2013.
On Monday, March 25, 2013 Chief Judge Richard A. Facemire presided over his regular monthly motion day in Glenville, WV.
He heard 2 fugitive from justice cases, one with a unique twist.
• The first fugitive, Jerry Harvey, was wanted by the state of Ohio and waived extradition back to that state.
• The second fugitive, Travis Stalnaker, had 3 counts of being a fugitive lodged against him by the WV State Police last week, resulting in 2 states wanting him returned to their jurisdiction, namely Pennsylvania and Maryland.
He also waived extradition and authorities in both states have a total of 10 judicial days to pick him up or he will be released.
Pennsylvania has until Thursday, April 04, 2013 to pick up Stalnaker and if they do not, then Maryland authorities have 3 more days to pick him up or Central Regional Jail will release him.
Both of the fugitives were represented by Christina Flanigan of Buckhannon.
Five juvenile matters were heard and reset as follows:
• Three for Monday, June 24, 2013 at 9:00 AM, one for June 24, 2013 at 9:10 AM and one for Tuesday, May 28, 2014 at 9:00 AM.
Three criminal pleas were taken as follows:
• State of West Virginia vs. Donald Norman
He was represented by Loren Howley of Grantsville and pled to count 1, charging sexual abuse by a parent, guardian or custodian.
The remaining counts of his indictment were dismissed upon motion of the prosecutor.
The probation officer must conduct a presentence investigation and sentencing will be at 10:20 AM on Tuesday, May 28, 2013.
• State of West Virginia vs. Jeremy Knicely
He pled to third offense DUI and the state recommended he be sentenced to Anthony Center for Youthful Offenders.
Sentencing will be Monday, April 22, 2013 at 9:15 AM.
He was represented by Clinton Bischoff of Summersvllle.
• State of West Virginia vs. Carrie Sumpter
She was represented by David karickhoff of Sutton and pled to count 1 and 2 of her 24 count indictment, charging her with acquiring a controlled substance by subterfuge.
On motion of the prosecuting attorney, Gerald B. Hough, the remaining 22 counts of the indictment were dismissed with prejudice to the state.
Her sentencing is scheduled for Tuesday, May 28, 2013 at 10:35 AM.
Several other criminal matters were addressed as follows:
• In the bound over case of State of West Virginia vs. Gary Ferrell (13-BO-l)
His attorney, Daniel Armstrong of Gassaway, moved for psychiatric evaluation of his client.
CIayman and Associates will perform the evaluation.
• State of West Virginia vs. Jarrod Scott
He was set for trial, Tuesday, March 26, 2013.
However, his attorney related to the Court that he was unable to find his client and asked that the trial be continued.
Judge Facemire took his motion for continuance under advisement and directed the Clerk issue a capias for Scott’s arrest, but to hold it until Noon on Tuesday before the she issued it.
Then if and when Scott is arrested his attorney (Daniel Armstrong) must contact the Judge to set bond and have a hearing in the matter.
• State of West Virginia vs. Stacey Bright
Three counts of the indictment were fatally flawed, and Prosecutor Hough elected to dismiss the entire 6 count indictment without prejudice to the state.
Bright was also represented by Daniel Armstrong.
• State of West Virginia vs. John Carder
He was before the Court on a motion to suppress.
However, his attorney Christina Flanigan had neglected to notify Carder of the day of hearing so it was continued to Wednesday, April 10, 2013, to be heard in Braxton County.
• State of West Virginia vs. Deandre Williams
He was before the Court on a bound over case from magistrate court with his newly hired attorney, William H. Harding of Charleston.
Motion was made and granted to release him from home confinement.
Later at 1:30 PM Judge Facemire presided over a case from Calhoun County that he has been appointed special Judge to hear.
WV Supreme Court Study Finds Practices at Youth Prisons Concerning
A commission formed by the Supreme Court to review two juvenile justice facilities in the state has found troubling practices.
The Adjudicated Juvenile Rehabilitation Review Commission was created by the court in 2011 initially to investigate the death of Benjamin Hill, a 15 year old who was found dead in his cell at the West Virginia Industrial Home for Youth, in Salem in February 2009.
After initially finding concerning practices, the commission began monitoring activities at both the Industrial Home For Youth in Salem and the Kenneth “Honey” Rubenstein Center, in Davis.
The commission released a report Monday evening highlighting several of its findings including:
• Corrections officers covered some cell windows with black paper, prohibiting residents from seeing outside and restricting natural light.
• Most psychiatric services were provided to the children through video conference.
• Residents’ cells were cold and were furnished with thin mattresses and blankets.
• Residents were prohibited from talking during meal time and had very limited peer interaction.
• Residents were given limited shower time (less than ten minutes).
• Questionable quality and quantity of food. Many residents complained of being hungry.
• Residents had limited access to vocational and academic services.
“The West Virginia Supreme Court of Appeals is committed to a juvenile justice system which promotes effective interventions and enhances the likelihood of rehabilitation for those children involved in delinquent behavior,” state Supreme Court Justice Margaret Workman, who headed the commission, said in a news release. “This report now gives the commission a framework to continue its mission to encourage systematic changes.”
Monday’s report comes on the heals of a judges ruling that the Salem home be permanently closed.
The investigation into Hill’s death was unable to uncover a cause of death, mostly because the body was cremated.
“With the information available, a positive cause of death could neither be determined nor confirmed,” according to the report. “It can be safely concluded that procedures were not followed. Regular and timely resident checks were not conducted as specified by policy.
During the investigation, the Supreme Court appointed monitors to periodically visit Salem and the Rubenstein Center and report back to the court with their own findings.
In the report, the commission stated its desire to employ a full-time, knowledgeable professional to continue monitoring, researching, and presenting their findings as the court digs deeper into the state’s juvenile justice facilities.
~~ Travis Brinks - WVMN ~~
Supreme Court of Appeals of West Virginia: Gilmer County Circuit Court Abused Its Discretion
BALLARD v. DILWORTH
David BALLARD, Warden, Respondent Below, Petitioner v. Steve Lee
DILWORTH, Petitioner Below, Respondent.
—February 22, 2013
Gerald B. Hough, Esq., Prosecuting Attorney for Gilmer County,
Glenville, WV, for the Petitioner.Ray M. Shepard, Esq., Smith, Gildea
& Schmidt LLC, Towson, MD, for the Respondent.
Petitioner David Ballard, Warden of the Mount Olive Correctional
Complex (hereinafter “Warden Ballard”),1 appeals from the September 21,
2011, order of the Circuit Court of Gilmer County setting aside the
conviction and sentence of the respondent herein and petitioner below,
Steve Lee Dilworth (hereinafter “Mr. Dilworth”), on nine of ten counts
of sexual abuse by a guardian. In granting relief to Mr. Dilworth on
his habeas corpus petition, the circuit court found that the indictment
was constitutionally deficient because it did not provide adequate
notice of each of the charges and potentially subjected him to double
The circuit court did not disturb Mr. Dilworth’s conviction and
sentence on Count One finding that the indictment provided him with
adequate notice to defend as to one count of sexual abuse by a
guardian. Warden Ballard seeks to reverse the circuit court’s ruling
and argues that the indictment was constitutionally sufficient. Having
fully considered the appendix record in this matter in conjunction with
the parties’ briefs and the arguments presented, this Court reverses
the circuit court’s order granting habeas relief and orders that Mr.
Dilworth remain imprisoned under the sentencing order entered in the
underlying criminal proceeding.
I. Factual and Procedural Background
On July 6, 2006, Mr. Dilworth was indicted on ten counts of sexual
abuse by a guardian. Each count of the indictment involved Mr.
Dilworth’s stepdaughter, D.H. (hereinafter “the victim”),3 who was
seventeen years old when she reported the abuse to her mother,
Christine Dilworth. Mrs. Dilworth confronted Mr. Dilworth and later
contacted law enforcement. Mr. Dilworth was taken into custody on May
24, 2006. While in police custody, Mr. Dilworth confessed to sexually
abusing the victim throughout a period of several years, although he
could not identify specific dates and times.
of Mr. Dilworth’s indictment charged an offense under West Virginia
Code § 61–8D–5(a) (2005), which provides, in pertinent part, as follows:
If any parent, guardian or custodian of or other person in a
position of trust in relation to a child under his or her care, custody
or control, shall engage in or attempt to engage in sexual exploitation
of, or in sexual intercourse, sexual intrusion or sexual contact with,
a child under his or her care, custody or control, notwithstanding the
fact that the child may have willingly participated in such conduct, or
the fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or mental
or emotional injury as a result of such conduct, then such parent,
guardian, custodian or person in a position of trust shall be guilty of
At trial, held on January 30 and 31, 2007, the victim testified to
sexual conduct that began when she was eight years old while the family
was living in Maryland. As to the acts of sexual abuse that occurred in
2001, in West Virginia, the victim testified, as follows:
Q: And tell us about the year 2001 and any activities of sexual
abuse by [Mr. Dilworth] upon you.
A: [Mr. Dilworth] would come into my bedroom in Coxs Mill, and it
was usually always in the early morning ․ he would lay behind me and
just start to, like, rub my back and stuff underneath of my shirt or
pajamas, and that would turn to, like, breast fondling, and he would
rub his penis on my butt area, and then sometimes he would lick or suck
on my breasts, and he’d pull down my pants sometimes and, like, just,
you know, spread my legs and look in my vaginal area ․
Q: Can you say exactly how many times he [Mr. Dilworth] came in your
room in 2001?
A: No, I can’t.
Q: Would you be able to truthfully tell this jury it was more than
A: (Nodded.) Yes.
Q: Was it as many as ten times?
A: (Nodded.) Yes.
Q: Was it at least ten times?
A: Yes. (Crying.)
Q: So between January 1, 2001, when you’re 12 and your last clearly
recollected ․ out of the ten is in November 2001. Between January 2001
and November 2001, did that defendant early in the morning come into
your bedroom and touch you sexually?
Q: More than once?
Q: At least ten times?
A: Yes. (Crying.)
Q. Can you recollect the exact date? Did you mark them on a calendar?
A. (Shook head.) No.
Q. Was it the routine in the household for ․ your stepdad, to come
in and help you get started for school, to get dressed, or to get ready?
A. He would wake me up.
Q. In the year 2001, did that defendant (indicated) wake you up ten
Although Mr. Dilworth did not testify at trial, his incriminating
given to West Virginia State Trooper Robert Smith on May 24, 2006, was
read into evidence at trial by Trooper Smith. In this statement, Mr.
Dilworth stated, in part, as follows:
Q: Where did you touch her [the victim]?
A: I touch [sic] her a* *, and I then touch [sic] her boobs about
five years ago. It started by cuddling, then I touched her boobs, I
knew I was wrong. (Emphasis added).
Q: Approximately, how many time [sic] would you say you touch [sic]
her breast or butt?
A: I do not known [sic].
Q: Where would this take place in the house?
A: Usually in her room.
Q: How would it started [sic]?
A: It didn’t start out sexually. I wasn’t trying to get fu* *ed, it
was loving. I fu* *ed up years ago ․ You can’t take back what you did.
Q: When you touched her breast, how would you touch them?
A: Just rub them.
Q: How about her butt?
A: Just rub on it.
Q: Did you become sexually arouse [sic]?
Q: Can you recall the first incident?
Q: Do you know the year?
Q: How about the season?
Q: Would you say you touched her breast or butt more than ten times
Q: How about twenty time [sic]?
A: I don’t know. Once is bad enough.
Q: Did the touching happen often?
A: I don’t remember.
Q: Over how many years did this occurr [sic]?
A: Many year [sic]. I do not remember individivul [sic] times, if I
could I could count them.
At the close of the State’s case and, again, after the defense
rested, Mr. Dilworth moved for a judgment of acquittal pursuant to Rule
29 of the West Virginia Rules of Criminal Procedure. Mr. Dilworth
argued that the State’s evidence failed to prove that he was the
victim’s “guardian” as charged in the indictment. The trial court
denied both of these motions. On January 31, 2007, the jury returned
its verdict finding Mr. Dilworth guilty on all ten counts of the
indictment. By order entered on April 19, 2007, the circuit court
sentenced Mr. Dilworth to ten to twenty years of incarceration on each
of the ten counts, running the sentences imposed on Counts One, Two,
and Three consecutively, suspending the sentences imposed on Counts
Three through Ten, and imposing a probationary period of five years
upon Mr. Dilworth’s release from incarceration.
On January 10, 2008, Mr. Dilworth’s direct appeal to this Court was
On July 20, 2010, following the stay of his federal habeas proceeding,7 Mr. Dilworth
filed a petition for a writ of habeas corpus and a supporting
memorandum of law in the circuit court setting forth six grounds for
On September 21, 2011, the circuit court entered an order denying
habeas relief on all but one of the grounds propounded by Mr. Dilworth
on the basis that he was estopped under West Virginia Code § 53–4A–1(b)9 from
asserting claims previously adjudicated by the district court in his
federal habeas proceeding.10
The circuit court addressed Mr. Dilworth’s challenge to the
constitutional sufficiency of his indictment based on the identical
wording of the counts. Relying upon Russell v. United States, 369 U.S.
749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and Valentine v. Konteh, 395
F.3d 626 (6th Cir.2005), the circuit court found that the subject
indictment conflicted with constitutional due process requirements by
failing to apprise Mr. Dilworth of the charges against him for purposes
of preparing a defense. The circuit court further found that the
indictment exposed Mr. Dilworth to double jeopardy based on the
possibility that the same evidence would be used to convict him on
multiple, identical counts. The circuit court ordered that Mr.
Dilworth’s conviction and sentence on nine of the ten counts be vacated
and set aside, but allowed his conviction and sentence on the sole
remaining count to stand. On January 24, 2012, the circuit court
entered an order that denied Warden Ballard’s motion to reconsider the
circuit court’s grant of habeas. Through this appeal, Warden Ballard
seeks to reverse the circuit court’s decision to grant habeas relief to
II. Standard of Review
As this Court stated in syllabus point one of Mathena v. Haines, 219
W.Va. 417, 633 S.E.2d 771 (2006), our review of the circuit court’s
habeas ruling is governed by the following standard:
In reviewing challenges to the findings and conclusions of the
circuit court in a habeas corpus action, we apply a three-prong
standard of review. We review the final order and the ultimate
disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of
law are subject to a de novo review.
Because the circuit court concluded that Mr. Dilworth’s indictment
was constitutionally deficient, this Court also relies upon standards
for reviewing the sufficiency of an indictment. In syllabus point two,
in part, of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), this
Court explained that “[g]enerally, the sufficiency of an indictment is
reviewed de novo.” Our prior law provides guidance for this de novo
“An indictment for a statutory offense is sufficient if, in charging
the offense, it substantially follows the language of the statute,
fully informs the accused of the particular offense with which he is
charged and enables the court to determine the statute on which the
charge is based.” Syl. Pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d
Syl. Pt. 1, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).
Consistent with the holding in Mullins, this Court further explained
in syllabus point two of Miller, 197 W.Va. at 593, 476 S.E.2d at 540,
that “[a]n indictment need only meet minimal constitutional standards,
and the sufficiency of an indictment is determined by practical rather
than technical considerations.” See also U.S. v. Law, 2006 WL 2380655,
at *3 (N.D.W.Va., Aug.15, 2006) (“Ordinarily, an indictment that tracks
the statutory language is sufficient.”). With these standards in mind,
this Court proceeds to determine whether the circuit court’s grant of
habeas corpus was in error.
In this appeal, Warden Ballard asserts that the circuit court
improperly granted Mr. Dilworth habeas relief for alleged
constitutional infirmities related to the indictment. As an initial and
dispositive argument, Warden Ballard asserts that under Miller, Mr.
Dilworth waived any challenge to his indictment by failing to timely
raise the issue before the trial court. Alternatively, the Warden
argues that under West Virginia Code § 62–2–10 (2010)11 and State
v. David D. W., 214 W.Va. 167, 588 S.E.2d 156 (2003), the absence of
specific dates in the indictment does not invalidate the charging
document because time is not of the essence with regard to the crimes
charged. As the Warden observes, Mr. Dilworth’s confession and the
victim’s statements to law enforcement and trial testimony reflect that
the crimes occurred during January through November of 2001. Warden
Ballard emphasizes that under West Virginia Code § 62–2–11 (2010),12 a
conviction is not to be reversed based upon a challenge to the
indictment if the “offense be charged therein with sufficient certainty
for judgment to be given thereon․” The Warden further argues that the
circuit court’s ruling vastly expands the Supreme Court’s ruling in
Russell and fails to explain how Valentine, a decision of the United
States Court of Appeals for the Sixth Circuit, trumps our controlling
state law in David D.W.
In contrast, Mr. Dilworth asserts that the circuit court correctly
relied upon both Valentine and Russell in granting him habeas relief
because his indictment violated his constitutional right to due process
by failing to provide him with proper notice of the charges against him
and also by failing to protect him from the issues of double jeopardy.
Mr. Dilworth maintains that the circuit court correctly determined that
David D.W. is not controlling because not only was it decided prior to
Valentine, but it did not address identically-worded counts in an
indictment in the context of due process. Mr. Dilworth further argues
that while the circuit court considered the absence of specific dates
in the indictment in its analysis, it ultimately ruled that the
indictment was constitutionally deficient because the counts were
worded identically and lacked factual information to differentiate one
count from another. Lastly, relying upon Miller, Mr. Dilworth contends
that his failure to object to the indictment prior to trial is not an
absolute bar to this Court’s review of the sufficiency of the
Having reviewed the parties’ arguments on appeal, each of the bases
of constitutional infirmity will be discussed. We begin our analysis by
addressing Russell, the controlling case on federal due process13 and
and one of the two cases primarily relied upon by the circuit court in
granting habeas relief to Mr. Dilworth. In Russell, the United States
Supreme Court set forth the criteria for measuring the constitutional
sufficiency of an indictment, as follows:
[F]irst, whether the indictment “contains the elements of the
offense intended to be charged, ‘and sufficiently apprised the
defendant of what he must be prepared to meet,’ “ and, secondly, “ ‘in
case any other proceedings are taken against him for a similar offence,
whether the record shows with accuracy to what extent he may plead a
former acquittal or conviction.’ Cochran and Sayre v. United States,
157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704; Rose v. United States,
161 U .S. 29, 34.” Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct.
417, 76 L.Ed. 861.
Russell, 369 U.S. at 763–64. In Stroud v. Polk, 466 F.3d 291 (4th
Cir.2006), the United States Court of Appeals for the Fourth Circuit
addressed the manner in which the sufficiency of an indictment of a
state prisoner in a habeas proceeding should be evaluated and, citing
Russell, stated as follows:
In Hartman, we affirmed that “[e]lementary principles of due process
require that an accused be informed of the specific charge against
him,” 283 F.3d at 194 (citing Cole v. Arkansas, 333 U.S. 196, 201, 68
S.Ct. 514, 92 L.Ed. 644 (1948)), and that “ ‘[a] person’s right to
reasonable notice of a charge against him ․ [is] basic in our system of
jurisprudence,’ “ id. (quoting In re Oliver, 333 U.S. 257, 273, 68
S.Ct. 499, 92 L.Ed. 682 (1948)). Reasonable notice “sufficiently
apprises the defendant of what he must be prepared to meet.” Russell v.
United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)
(internal quotation marks omitted) (evaluating indictment).
466 F.3d at 296; see also U.S. v. Kingrea, 573 F.3d 186, 191 (4th
Cir.2009) (“[a]n indictment must contain the elements of the offense
charged, fairly inform a defendant of the charge, and enable the
defendant to plead double jeopardy as a defense in a future prosecution
for the same offense.” (citations omitted)).
This Court previously applied Russell in addressing the sufficiency
of an indictment and stated:15
An indictment is bad or insufficient ․ when within the four corners
of the indictment it: (1) fails to contain the elements of the offense
to be charged and sufficiently apprise the defendant of what he or she
must be prepared to meet; and (2) fails to contain sufficient accurate
information to permit a plea of former acquittal or conviction. Russell
v. United States, 369 U.S. 749, 763–64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d
240, 250–51 (1962).
State ex rel. Forbes v. Canady, 197 W.Va. 37, 41, 475 S.E.2d 37, 41
(1996), superseded by rule on another point of law, State v. Hartman,
No. 11–0784, 2012 WL 5897494 (W.Va.2012). Moreover, in syllabus point
five of State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007), this
“An indictment is sufficient under Article III, § 14 of the West
Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the
elements of the offense charged; (2) puts a defendant on fair notice of
the charge against which he or she must defend; and (3) enables a
defendant to assert an acquittal or conviction in order to prevent
being placed twice in jeopardy.” Syl. Pt. 6, State v. Wallace, 205
W.Va. 155, 517 S.E.2d 20 (1999).
As we explained in Miller, “the sufficiency of an indictment is
determined by practical rather than technical considerations.”16 Further,
an indictment is sufficient if it substantially follows the language of
the statute under which the defendant is charged, fully informs the
accused of the particular offense with which he is charged, and allows
this Court to determine the statute on which the charge is based. Syl.
Pt. 1, Mullins, 181 W.Va. at 416, 383 S.E.2d at 48.17
Having addressed Russell, the controlling decision of the United
States Supreme Court on determining the sufficiency of indictments, as
well as this Court’s similar precedent applying Russell, the Court now
turns to its discussion of Valentine v. Konteh, 395 F.3d 626 (6th
Cir.2005), the primary case relied upon by the circuit court in
granting habeas relief to Mr. Dilworth.
In Valentine, the United States Court of Appeals for the Sixth
Circuit addressed a constitutional challenge to an indictment in a
habeas proceeding brought by a state prisoner. The indictment contained
twenty identically worded counts of “child rape” and twenty identically
worded counts of felonious penetration occurring over a ten-month
period. Valentine, 395 F.3d at 628. The habeas defendant in Valentine
sought a bill of particulars prior to trial in part because he had
alibi defenses for portions of the period covered by the indictment.
The bill of particulars failed to offer any differentiation between the
counts. Id. at 629. In addition, the eight-year-old victim’s trial
testimony was vague. The Valentine Court relied upon Russell to grant
habeas relief to Valentine. The Valentine Court concluded that
Valentine’s indictment charging multiple, identically worded counts
violated constitutional due process in two respects: the indictment
failed to provide him with notice of the multiple incidents for which
he was tried and convicted and the lack of specificity in the
indictment and the trial record subjected him to double jeopardy.
This Court agrees with Warden Ballard that Valentine is not binding
upon this Court.18
As pointed out by the dissent in Valentine, “no [U.S.] Supreme Court
case has ever found the use of identically worded and factually
indistinguishable indictments unconstitutional.” Valentine, 395 F.3d at
639 (Gilman, J., dissenting) (emphasis in original). Warden Ballard
correctly observed that in Renico v. Lett, 559 U.S. 766, 130 S.Ct.
1855, 176 L.Ed.2d 678 (2010), the United States Supreme Court held that
it is error for federal circuit courts to rely on any decisions other
than Supreme Court precedent when analyzing a state court’s application
of “controlling” federal precedent for purposes of state prisoner
federal habeas proceedings. This may explain why this Court could find
no other federal circuit court of appeals that had followed Valentine
to grant habeas relief to a state prisoner under similar circumstances.19 In fact,
the Sixth Circuit rarely cited Valentine20 prior to Renico and has not
cited it since Renico.
Further, there are several, significant distinctions between the
case at bar and Valentine. In Valentine, the petitioner challenged the
adequacy of his indictment by seeking a bill of particulars prior to
trial. He contended that the lack of specific dates and times in his
indictment prejudiced him because he had alibi defenses. Unlike Mr.
Dilworth, the petitioner in Valentine did not confess to the crimes
charged, and the victim’s trial testimony was vague. In stark contrast,
Mr. Dilworth confessed pre-trial and that confession, which described
his sexual abuse of the victim, was read into evidence at trial.
Critically, his confession was consistent with the victim’s trial
testimony regarding the acts of sexual abuse at issue and the year the
alleged offenses occurred.21
Mr. Dilworth never sought a bill of particulars,22 and he did not assert an
alibi defense. Moreover, unlike the young victim in Valentine, here,
the victim was a young adult by the time of Mr. Dilworth’s trial and
she testified at length concerning the sexual abuse perpetrated upon
her by Mr. Dilworth.
Additionally, the evidence presented in Mr. Dilworth’s trial
demonstrated, unlike in Valentine, that there were more instances of
the crimes than were actually charged-not fewer.23 Based on this Court’s review
of the evidence at trial, including the victim’s extensive trial
testimony, as well as Mr. Dilworth’s confession wherein he admitted
that he had sexually abused the victim more times than he could count,
it is arguable that Mr. Dilworth was undercharged.24 Consequently, in marked
contrast to Valentine, this Court finds there was no possibility that
Mr. Dilworth was convicted on ten counts with evidence supporting fewer
than those ten offenses. To the contrary, this Court is convinced from
its review of the trial court’s instructions to the jury25 and the
evidence at trial that the jury found separate and independent evidence
to support its conviction of Mr. Dilworth on each and every count of
Given the significant differences between the case at bar and
Valentine, and based upon this Court’s well-established law on the
sufficiency of indictments, we find Valentine to be both unpersuasive
and non-governing. Imminently better reasoned is the dissenting opinion
in Valentine, with its insightful explanation that “prohibiting the use
of multiple identical charges in a single indictment would severely
hamper a state’s ability to prosecute crimes where a young child is
both the victim and the sole witness.” 395 F.3d at 640. Indeed,
“nder a rule restricting prosecutions to exceedingly narrow and
precise charges, a sex-abuse charge would presumptively be limited to a
single instance of abuse, despite clear evidence of multiple occasions․
Such an outcome is contrary to judicial precedent and is not
constitutionally required.” Id. at 641.
Construing Mr. Dilworth’s indictment in favor of validity, as this
Court is required to do under Miller,26 we conclude that the
indictment is constitutionally sufficient under both Russell and our
existing state law. Mr. Dilworth knew the elements of the offenses with
which he was charged and had fair notice of what he had to defend
against (particularly given his confession and the victim’s pretrial
statements to law enforcement in which she described the sexual abuse
perpetrated upon her by Mr. Dilworth). The indictment also gave Mr.
Dilworth proper notice by identifying the victim, the offenses
committed, and the year the offenses were committed. Because the
indictment substantially followed the language of the statute under
which Mr. Dilworth was charged,27 he was informed of the nature
of the alleged offenses and the statute under which those offenses were
charged. In short, had Mr. Dilworth desired more information beyond the
victim’s pre-trial statements to law enforcement and beyond his own
confession, he could have requested a bill of particulars or otherwise
sought relief from the trial court.28 As such, the circuit court
abused its discretion in granting habeas relief to Mr. Dilworth.
In view of the foregoing, this Court concludes that Mr. Dilworth was
not denied due process because he was provided with adequate notice of
the charges against him and was not convicted in violation of double
jeopardy principles. For all of these reasons, this Court finds that
the circuit court abused its discretion in granting habeas relief to
Mr. Dilworth and in setting aside nine of his ten convictions.
Accordingly, the order of the Circuit Court of Gilmer County is
reversed and Mr. Dilworth is to remain imprisoned under the sentencing
order entered in the underlying criminal proceeding.
to Rule 41(c) of the West Virginia Rules of Appellate Procedure, this
Court has substituted the petitioner’s name with David Ballard, who is
the current Warden at the Mount Olive Correctional Complex.
parties represent and the circuit court’s habeas order reflects that on
November 12, 2008, Mr. Dilworth filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court
for the Northern District of West Virginia. In the federal magistrate
judge’s “Report and Recommendation,” it was recommended that Mr.
Dilworth be denied relief on five of the six grounds asserted, but that
relief be granted on ground four challenging the constitutional
sufficiency of his indictment. Dilworth v. Markle, 2009 WL 5874321
(N.D.W.Va.). Thereafter, the federal district court judge entered a
habeas order (1) adopting the magistrate judge’s recommendation that
relief on five of the six grounds be denied; (2) holding in abeyance a
ruling on ground four to allow Mr. Dilworth an opportunity to present
his unexhausted federal claim in state court (which he has done in the
case sub judice ); and (3) staying Mr. Dilworth’s federal habeas corpus
proceeding for this purpose.
the victim was a child at the time of the commission of the crimes,
this Court follows its customary practice with sensitive matters
involving minors and refers to the victim by her initials. See In re
Cesar L., 221 W.Va. 249, 352 n. 1, 654 S.E.2d 373, 376 n. 1 (2007).
count of Mr. Dilworth’s indictment stated, as follows:That on or about
the _ day of _, 2001, in Gilmer County, West Virginia, STEVE LEE
DILWORTH committed the felony offense of SEXUAL ABUSE BY PARENT OR
GUARDIAN in that he, the said STEVE LEE DILWORTH, did then and there
willfully, intentionally, unlawfully, knowingly, and feloniously engage
in or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with a child under his
care, custody or control, and he was then the parent or guardian of the
said child, to-wit: STEVE LEE DILWORTH did, on or about the _ day of _,
2001, in Gilmer County, West Virginia, willfully, intentionally,
unlawfully, knowingly, and feloniously engage in or attempt to engage
in sexual exploitation of, or in sexual intercourse, sexual intrusion
or sexual contact with, [the victim], a child under his care, custody
or control, and he was then the guardian of the said [the victim],
against the peace and dignity of the State of West Virginia in
violation of West Virginia Code § 61–8D–5(a).
trial transcript reflects that Trooper Smith’s interview of Mr.
Dilworth took place in the Trooper’s cruiser and that the in-cruiser
video equipment recorded the interview. Although Mr. Dilworth could not
be seen in this recording, both he and Trooper Smith could be heard.
This recording was played for the jury and admitted into evidence at
this Court’s appellate rules in effect at the time of Mr. Dilworth’s
direct criminal appeal, his petition was refused without a written
decision by this Court. Also, while Mr. Dilworth arguably raised the
issue currently before this Court in his direct criminal appeal, which
he couched in terms of a denial of his right to a unanimous verdict,
this Court’s refusal of his direct criminal appeal does not preclude
its review of this issue in a subsequent habeas. See Syl., Smith v.
Hedrick, 181 W.Va. 394, 382 S.E.2d 588 (1989) (“This Court’s rejection
of a petition for appeal is not a decision on the merits precluding all
future consideration of the issues raised therein, unless ․ such
petition is rejected because the lower court’s judgment or order is
plainly right, in which case no other petition for appeal shall be
note 2, supra.
were the same grounds raised in Mr. Dilworth’s habeas petition filed in
Virginia Code § 53–4A–1(b) provides, in pertinent part, that “a
contention or contentions and the grounds in fact or law relied upon in
support thereof shall be deemed to have been previously and finally
adjudicated only when ․ there was a decision on the merits thereof
after a full and fair hearing thereon․”
note that in the case sub judice, Mr. Dilworth does not cross-assign as
error the circuit court’s ruling in this regard.
Virginia Code § 62–2–10 provides in relevant part that “no indictment
or other accusation shall be quashed or deemed invalid ․ for omitting
to state, or stating imperfectly, the time at which the offense was
committed, when time is not the essence of the offense[.]”
the Court explained in State v. Casdorph, 159 W.Va. 909, 912, 230
S.E.2d 476, 479 (1976), “W.Va.Code, 62–2–11 (1923) [footnote omitted],
cures any technical defect in an indictment when the indictment
sufficiently apprises the accused of the charge which he must face.”
the Sixth Amendment to the U.S. Constitution, an accused “shall ․ be
informed of the nature and cause of the accusation.” Article III,
section 14 of the West Virginia Constitution provides, in pertinent
part, that “the accused shall be fully and plainly informed of the
character and cause of the accusation.”
Fifth Amendment to the U.S. Constitution provides that no person “shall
․ be subject for the same offense to be twice put in jeopardy of life
or limb[,]” which is applied to the states through the Fourteenth
Amendment. See State v. McGilton, 229 W.Va. 554, –––– n. 8, 729 S.E.2d
876, 882 n. 8 (2012) (“The Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United States is applied to the
states by the Fourteenth Amendment.”). Parallel language is found in
article III, section 5 of the West Virginia Constitution, which states
that no person in any criminal case shall “be twice put in jeopardy of
life or liberty for the same offense.”
sufficiency of an indictment is determined by looking to the law of the
state where the indictment issued.” Dilworth v. Markle, 2009 WL
5874321, at *6 (N.D.W.Va. Sept.2, 2009).
Pt. 2, in part, Miller, 197 W.Va. 588, 476 S.E.2d 535.
indicated previously, Warden Ballard argues that State v. David D. W.,
214 W.Va. 167, 588 S.E.2d 156, is controlling in the case sub judice.
In David D. W., the defendant asserted that his 206–count indictment on
various sex crimes, including multiple counts of sexual abuse by a
parent, guardian, or custodian, was insufficient because it lacked
specific dates in the various counts; it was not “plain, concise, or
definite[;]” the number of charges was determined arbitrarily; and,
that as a result, “he was not able to adequately prepare a defense.”
Id. at 172, 588 S.E.2d at 161. The defendant D.W. also argued that “it
would be impossible for him to plead his convictions as a bar to a
later prosecution, since the State could draft a new indictment
alleging the same offense occurred on one of the days of the month not
alleged in the previous indictment.” 214 W.Va. at 173, 588 S.E.2d at
162. This Court disagreed and concluded, relying upon West Virginia
Code § 62–2–10 (1923), which provides that an indictment shall not be
deemed invalid for failing to state, or stating imperfectly, the time
at which the offense was committed, when time is not of the essence of
the offense, that because time is not an element of the sexual crimes
charged, the indictment was sufficient. Id. at 173, 588 S.E.2d at 162;
see also State v. Miller, 195 W.Va. 656, 664, 466 S.E.2d 507, 515
(1995) (“Because time is not an essential element of the charged
offenses [sexual assault] ․ the defendant “was not exposed to the
danger of being put in jeopardy to the same offenses.”). Based on David
D. W., this Court finds that the absence of specific dates in Mr.
Dilworth’s indictment did not make it deficient because time is not an
essential element of the sex crimes charged.
in State v. Samuel S., No. 11–0877, 2012 WL 5471448 (W.Va. Nov.9, 2012)
(memorandum decision), this Court addressed a challenge to the
sufficiency of an indictment that charged the defendant with 140 counts
of sexual offenses, many of which were identical and all of which
involved his young daughter over a ten-year period. We found the
petitioner’s reliance on Valentine to be misplaced and determined that
the indictment met the minimum guidelines for charging documents by
setting forth the elements of the offense charged and by giving the
petitioner fair notice of the charges against which he must defend by
providing the year, the nature of the offense, and the identity of the
a recent decision issued by the United States District Court for the
Northern District of West Virginia, the court addressed a state
prisoner’s claim that his indictment violated his constitutional rights
under Russell and Valentine because the counts failed to set forth a
specific date and failed to distinguish between the alleged sexual
conduct. May v. Ballard, 2012 WL 4356794 (N.D.W.Va.). The district
court denied habeas relief and found Valentine to be distinguishable
based on the evidence at trial regarding the incidents occurring during
the time frame in the indictment, including distinguishing between
prior bad acts versus those charged in the indictment. Based on this
distinction of which acts were at issue, the district court found that
this demonstrated that Mr. May’s due process rights were not violated
as he was provided with adequate notice of the charges against him and
was protected from double jeopardy concerns. Id. at *13–14. This same
reasoning applies to the instant case where the victim testified at
trial concerning Mr. Dilworth’s prior bad acts against her, which were
distinguished at trial from the sexual abuse occurring in 2001, as
charged in Mr. Dilworth’s indictment.
State of Ohio v. Stefka, 973 N.E.2d 786 (Ohio Ct.App.2012), the court
explained that the Sixth Circuit has cited Valentine only four times,
three of which were unpublished decisions and none of which reversed a
conviction based upon Valentine. See Shafer v. Wilson, 364 F.App’x 940
(6th Cir.2010); Cowherd v. Million, 260 F.App’x 781 (6th Cir.2008);
U.S. v. Madison, 226 F.App’x 535 (6th Cir.2007); Joseph v. Coyle, 469
F.3d 441 (6th Cir.2006).
was the case in David D.W., “it is likely that the jury found that the
appellant’s recorded statement corroborated the victim’s testimony.”
David D. W., 214 W.Va. at 176, 588 S.E.2d at 165.
bill of particulars is a discovery device in criminal proceedings. It
appears to this Court that Mr. Dilworth did not seek a bill of
particulars because he was satisfied with the indictment and that he
was fully advised of the charges against him. See State of Missouri v.
Walker, 795 S.W.2d 522, 526 (1990) (“[S]ince Walker failed to request a
bill of particulars, this court is entitled to assume he was satisfied
with the information and that it fully advised him of the facts
charged.” (citations omitted)).
Court in Valentine noted that the Ohio Court of Appeals concluded, in
Mr. Valentine’s direct criminal appeal, that Mr. Valentine was
convicted of twenty counts of felonious sexual penetration based upon
evidence that demonstrated only fifteen, which likely subjected him to
a double jeopardy violation.
the State of West Virginia were to charge Mr. Dilworth with similar
crimes against this victim and allege that the crimes occurred in 2001,
there is nothing that would prevent Mr. Dilworth from asserting double
jeopardy in connection with these later charged, similar offenses.
Accord Valentine, 395 F.3d at 642 (Gilman, J., dissenting) (“Russell,
read literally ․ clearly protects the defendant in the future, so that
the current record may demonstrate ‘with accuracy’ a ‘former acquittal
or conviction.’ ․ It does not, as the majority suggests, serve to
protect defendants from multiple identical counts contained within the
trial transcript reveals that the trial court repeatedly instructed the
jury that it had to find a “separate, independent act to support ․ each
count based upon the evidence as presented․” After the jury returned
its verdict finding Mr. Dilworth guilty on all ten counts of the
indictment, the trial court polled the jury and each juror answered in
the affirmative when asked if the verdict reached was his/her verdict.
note 28, infra.
Virginia Code § 61–8D–5(a).
we previously noted, Warden Ballard asserted that Mr. Dilworth never
challenged the constitutional sufficiency of the indictment either
prior to or during his trial. Although during oral argument, Mr.
Dilworth’s counsel stated that he had challenged the indictment on the
basis of the identical charging language in his motion for acquittal at
trial, the trial transcript does not support such argument.Rule
12(b)(2) of the West Virginia Rules of Criminal Procedure provides that
“[d]efenses and objections based on defects in the indictment or
information (other than that it fails to show jurisdiction in the court
or to charge an offense which objections shall be noticed by the court
at any time during the pendency of the proceedings)” must be raised
prior to trial. Rule 12(f) provides that the “[f]ailure by a party to
raise defenses or objection or to make request which must be made prior
to trial ․ may constitute waiver thereof, but the court for cause shown
should grant relief from the waiver.” This Court has previously
held:Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure
requires that a defendant must raise any objection to an indictment
prior to trial. Although a challenge to a defective indictment is never
waived, this Court literally will construe an indictment in favor of
validity where a defendant fails timely to challenge its sufficiency.
Without objection, the indictment should be upheld unless it is so
defective that it does not, by any reasonable construction, charge an
offense under West Virginia law or for which the defendant was
convicted.Miller, 197 W.Va. at 592–93, 476 S.E.2d at 539–40, Syl. Pt.
1. More recently, in syllabus point two of State v. Tommy Y., Jr., 219
W.Va. 530, 637 S.E.2d 628 (2006), this Court stated that[f]or the
purposes of Rule 12(b)(2) and Rule 12(f) of the West Virginia Rules of
Criminal Procedure, if a defect in a charging instrument does not
involve jurisdiction or result in a failure to charge an offense, a
defendant must raise the issue prior to trial or the defect will be
deemed waived absent a showing of good cause for failing to timely
raise the issue.These rules, this Court’s opinions interpreting these
rules, and West Virginia Code § 62–2–11 (see note 12, supra ) all
promote judicial economy, while simultaneously protecting the interests
of justice. They also prevent a criminal defendant from failing to
raise an issue in a timely fashion either as trial strategy or to
preserve a basis for a subsequent collateral challenge to his
conviction. Because Mr. Dilworth’s challenge to his indictment does not
involve jurisdiction and because his indictment is not “so defective
that it does not, by any reasonable construction, charge an offense
under West Virginia law,” Mr. Dilworth must be able to show good cause
for failing to timely raise the issue. To that end, there is nothing in
either the appendix record, Mr. Dilworth’s appellate brief, or his
counsel’s oral argument before this Court that would constitute “good
cause” for not having timely raised the issue. Thus, in addition to not
being entitled to habeas relief under Valentine, Mr. Dilworth was not
entitled to habeas relief because he waived the issue of alleged
infirmities in the indictment by failing to follow our law in timely
raising the issue prior to trial.
Lewis County Grand Jury Indicts 43 Individuals
• Benjamin Matthew Crim, who is charged with malicious wounding, is being held in the Central Regional Jail in lieu of $50,000 bond. Crim placed a pillow over his mother’s face and then later stabbed her with an 8-inch kitchen knife in the arm.
• Ronald Lee Morris, 51-year-old of Weston, on a felony charge of making terroristic threats.
He is alleged to have told fellow employees at the Sharpe Hospital in January that he was going to go home, get a gun and shoot a bunch of people, according to the complaint in Magistrate Court.
• Clarence Steve Wright, 45, of Parkersburg, was indicted on seven counts of making terroristic threats.
• Gary Paul Ferrell, 55, of Big Springs, was indicted on a felony charge of making terroristic threats and a misdemeanor charge of public intoxication.
• David Glen Ables, 31, of Weston, was indicted on felony charges of operating a clandestine drug lab and conspiracy to operate a clandestine drug lab, along with misdemeanor charges of destruction of property, driving while having a revoked license and fleeing or attempting to flee by means other than a vehicle from a law enforcement officer.
• Arianna Star Clark, 19, of Walkersville, was indicted for operating a clandestine drug lab and conspiracy.
• Shawn Matthew Clark, 25, of Roanoke, was indicted for operating a clandestine drug lab and for conspiracy.
• Michael Jason Craig, 29, of Weston, was indicted on two counts of conspiracy and single counts of operating a clandestine drug lab and being in possession of substances used as a precursor to the manufacture of methamphetamine or other controlled substance.
• Ethan C. Goldsborough, 21, of Adrian, was indicted on charges of being in possession of substances used as a precursor to the manufacture of methamphetamine or other controlled substance and for conspiracy.
• Kevin L. Goldsborough, 52, of Adrian, was indicted on charges of being in possession of substances to be used as a precursor to the manufacture of methamphetamine or other controlled substance and for conspiracy.
• James Michael Ireland, 19, of Alum Bridge, was indicted on felony charges of operating a clandestine drug lab, being in possession of substances to be used as a precursor to the manufacture of methamphetamine or other controlled substance and a misdemeanor charge of domestic battery.
• William Shane Moneypenny, 29, of Weston, was indicted on charges of operating a clandestine drug lab, being in possession of substances to be used as a precursor to the manufacture of methamphetamine or other controlled substance and two counts of conspiracy.
• Megan Renee Mitchell, 18, of Weston, was indicted on charges of operating a clandestine drug lab and conspiracy to operate a clandestine drug lab.
• Laura Beth Smith, 24, of Weston, was indicted on charges of being in possession of substances to be used to manufacture methamphetamine or other controlled substance, conspiracy to possess substances to be used as a precursor in the manufacture of methamphetamine or other controlled substance, operating a clandestine drug lab and conspiracy to operate a clandestine drug lab.
• Jesse Lee Prunty II, 27, of Walkersville, was indicted on charges of being in possession of substances used as a precursor in the manufacture of methamphetamine or other controlled substance, conspiracy to possess substances to be used as a precursor in the manufacture of methamphetamine or other controlled substance, operating a clandestine drug lab and conspiracy to operate a clandestine drug lab.
• Tiara Nicole Howard, 23, of French Creek, was indicted on charges of possession of a controlled substance with the intent to deliver and conspiracy to possess a controlled substance with the intent to deliver.
• Joshua Shayne Davisson,, 25, of Weston, was indicted on charges of obtaining possession of a controlled substance by misrepresentation and conspiracy.
• Tyler Allen Davis, 22, of Buckhannon, was indicted on charges of possession of a controlled substance with the intent to deliver and conspiracy to possess a controlled substance with the intent to deliver.
• Christopher William Davisson, 21, of Walkersville, was indicted on a charge of conspiracy to obtain possession of a controlled substance by misrepresentation.
• Ralpheal Richard Anderson, 29, of Detroit, on charges of burglary and conspiracy.
• Brian Edward Boley, 37, of Mount Clare, was indicted on felony charges of grand larceny and conspiracy and misdemeanor charges of destruction of property and conspiracy.
• Joann Marie Boley, 37, of Mount Clare, was indicted on felony charges of grand larceny and conspiracy and misdemeanor charges of destruction of property and conspiracy.
• Jonvon Andre Carter, 31, of Detroit, was indicted on charges of burglary and conspiracy.
• Mona Kathleen Crumit, 37, of Weston, was indicted on two counts of failing to meet an obligation to provide support for a minor child.
• Billy Joe Farley, 31, of Weston, was indicted on five felony counts of conspiracy to fraudulently use an access device and one felony count of child neglect creating the risk of serious bodily injury, along with three misdemeanor counts each of possession of a controlled substance and conspiracy to possess a controlled substance.
• Kayla Ranee Golden, 22, of Weston, was indicted on two counts of conspiracy and a single count of the fraudulent use of an access device.
• Anthony Goldsmith, 22, of Weston, was indicted on 29 felony counts of breaking and entering, 29 counts of conspiracy to commit breaking and entering, a single count each of grand larceny and conspiracy to commit grand larceny and four misdemeanor counts each of petit larceny and conspiracy to commit petit larceny.
• Tracy Dawn Harris, 37, of Weston, was indicted for embezzlement.
• Cody Wade Hefner, 21, of Jane Lew, was indicted on two felony counts each of nighttime burglary and conspiracy to commit nighttime burglary and single felony counts each of destruction of property and conspiracy to commit destruction of property. He was also indicted on two misdemeanor counts each of petit larceny and conspiracy to commit petit larceny.
• Robert Earl Helmick, 41, of Horner, was indicted on two felony counts of wanton endangerment and two misdemeanor counts of domestic assault.
• Daniel Ray Hopkins, 36, no address listed in the indictment records, was indicted for malicious wounding.
• Shane M. Jeffries, 20, of Weston, was indicted for breaking and entering and for grand larceny.
• Ronald Earl Lowther, 31, of Walkersville, was indicted for being a felon in possession of a firearm.
• Demetrius Antonio Loyd, 34, of Detroit, was indicted for burglary and for conspiracy.
• James Michael McCabe, 21, of Jane Lew, was indicted on felony charges of nighttime burglary and conspiracy to commit nighttime burglary, along with misdemeanor charges of petit larceny, conspiracy to commit petit larceny and being an accessory after the fact.
• Travis Wayne McQuain, 31, of Buckhannon, was indicted on two counts each of conspiracy and for the fraudulent use of an access device.
• Briston Edward Skidmore, 24, of Grafton, was indicted on destruction of property and conspiracy to commit destruction of property.
• David J. Riffle, 33, of Jane Lew, was indicted on 29 felony counts each of breaking and entering and conspiracy to commit breaking and entering and single felony counts each of grand larceny and conspiracy to commit grand larceny. He was also indicted on four misdemeanor counts each of petit larceny and conspiracy to commit petit larceny.
• Charles Thomas Marsh, 52, of Weston, was indicted on charges of destruction of property and conspiracy to commit destruction of property.
• Stephani Brooke Stamper, 28, of Weston, was indicted on five felony charges each of conspiracy to fraudulently use an access device and the fraudulent use of an access device and one felony count of child neglect creating the risk of serious bodily injury. She was also indicted on three misdemeanor counts each of possession of a controlled substance and conspiracy to possess a controlled substance.
• Jason Wayne Swiger, 29 of Spelter, was indicted on a third-offense driving under the influence charge and for third-offense driving with a blood alcohol over .08.
• Austin Shane Tawney, 22, of Jane Lew, was indicted for failing to appear upon personal recognizance.
• Kevin O’Bryan Wright, 26, of Weston, was indicted for driving while having a revoked license.
Gilmer County Circuit Court Report – 03.05.13
Tuesday, March 05, 2013 was the opening day of the March, 2013 term of Gilmer County Circuit Court and Chief Judge Richard A. Facemire presided.
He called the names of the following criminal defendants:
• Brandon Leady
• William Davis McHenry
• Erin Jason DeWall
• Matthew Snyder
• Jamey Gaines
• Jack E. Crawford
• Bernard Johnson
• Robert Baskin (2 counts)
• Christina Gayle Coombs (2 counts)
• Sandra Prick
• Edward Charles Thompson Jr.
• Darrell J. Ford
• Travis M. Buford
• Justice Graham
• Kevin Neil Garrett
• Justin Derek
• Antoine Justin Miller
• Gary Terreal Shivers
• Joseph Michael Stanklewitch
• Joshua J. Whitely
Since none appeared In the Court room Gilmer County Prosecutor Hough moved for issuance of capias’ and orders were entered directing the Clerk to reissue the same.
• One other name of Thomas Rusley was also celled but there, but there is a special prosecutor in this matter. However, a capias was also issued for Rusley.
• State of West Virginia vs. Angela Sans
She was before the court for a 2008 indictment.
Judge Facemire arraigned her after she had previously been picked up in the state of Tennessee and placed in Central Regional Jail to await proceedings in Gilmer County.
Bond was set at $20,000.00 good and sufficient surety to be approved by the Clerk and she is set for 2nd trial on Tuesday, April 23, 2013.
Clinton Bischoff of Summersville was appointed to represent her.
• Tuesday, March 12, 2013 the petit/magistrate Jurors will be Indoctrinated, but no trial; will be held that day.
After Judge Facemire called the reminder of the criminal docket trials were set at follows:
Tuesday, March 26, 2013 has 4 trials scheduled:
• State of West Virginia vs. Jarod Scott
• State of West Virginia vs. Donald Norman
• State of West Virginia vs. Stacey Bright
• State of West Virginia vs. Gary Ferrell
Scott is represented by Daniel Armstrong of Gassaway, Norman Is represented by Loren B Howley of Grantsville, Bright is represented by Daniel Grindo of Gassaway and Ferrell is also represented by Armstrong.
Tuesday, April 16, 2013 has 2 trials set, being:
• State of West Virginia vs. John Carder
• State of West Virginia vs. Randall lambey
Both being represented by Christina Flanigan of Buckhannon.
Tuesday, April 23, 2013 hat 2 trials set, being:
• State of West Virginia vs. Robert Hacker who is represented by Daniel Grindo of Gassaway
• State of West Virginia vs. Angela Sane, mentioned above
Prosecutor Hough and defense counsel represented to the Court that pleas are being negotiated in the cases of:
• State of West Virginia vs. Jeremy Knicely (attorney: C. Bischoff)
• State of West Virginia vs. Carrie Sumpter (attorney: David Karlckhoff).
• In the case of State of West Virginia vs. Shane Posey
Representations were made to the Court that a multi county plea deal was being taken up in Braxton County.
That would dispose of the cast here in Gilmer County.
He is represented by Daniel Grindo.
• Several Juvenile matters were heard and reset as follows: One for Tuesday, May 28, 2013 at 9:50 AM, another for 10:00 AM, another for 10:10 AM, another for Tuesday, May 14, 2013 at 9:00 AM, and the last juvenile matter for Wednesday, April 10, 2013 at 9:00 AM.
• One adoption was granted by the Court.
G-LtE™: Same-o’ Same-o’, Wrong Decisions, Wrong Reasons
It’s good to take a look at the history of Lincoln County when talking about state intervention and school consolidation. Lincoln County was at the heart of the May 1982 Pauley v. Bailey school financing case.
It started in the 1970’s when a Lincoln County mother of 5 saw a crumbling school with broken windows, broken chairs and an open sewer running onto the playground while attending a PTA meeting and had enough. As a result, Ohio County Circuit Judge Arthur Recht ruled three decades ago that West Virginia’s system of financing public education was unconstitutional and did not create a “thorough and efficient” education system. Recht ordered an overhaul of the education system, the creation of measurable performance standards and a mechanism to equalize educational opportunities between rich and poor counties.
The 1982 Recht decision took years to implement, but it spurred the creation of the state School Building Authority (SBA) to oversee major school construction projects throughout West Virginia, the Office of Education Performance Audits (OEPA) to monitor schools’ progress, and worked to equalize pay and tweak the state’s school aid funding formula. What he didn’t say was who was going to enforce it.
Three decades later, with all the talk of how the Recht decision had revamped West Virginia’s education system, one $30 million consolidated Lincoln County High School and a little remodeling did not begin to solve the problems of education faced by Lincoln County.
It won’t solve anything for Gilmer County either and we’ll see far less than that. Aside from a smattering of shiny state-of-the art facilities using primarily federal funds, (the term state of the art is debatable), not a whole lot in the state’s school system has changed for the better. Little to no effort has been put toward the real root of our problem. At the top of the list, retaining and recruiting high-quality teachers remains a concern. Put that in conjunction with the repeated statistical failure of the majority of West Virginia students per federal level comparisons and it’s easy to see not much has changed at all.
In Lincoln County’s case the State Board of Education kept control for twelve years. Although returned to local board control in December 2012 citizens expressed their frustration by failing a school bond levy by 75% this month that would have consolidated two more schools despite threats that the state would not hesitate to intervene at anytime they feel the Lincoln County Board of Ed are not “progressing”. After twelve years it would seem threats have a hollow ring to the ears of Lincoln County taxpayers who have always passed an excess levy for their schools. That excess levy expires in 2014. It will be interesting to see the State BOE response to the bond issue failure given that fact. Who will they blame?
Lincoln County followed the rules yet their own Delegate Stowers posted “ less than stellar” results being recorded while the county school system was under state control including a lower graduation rate, a lower college attendance rate and longer bus drives causing increased cost of operations, all correlating with a higher drop out rate. Eight years into state control he acknowledged that their citizen “votes and voices meant nothing” and that the state could do “whatever they want” with tax dollars and close schools despite Lincoln biting the bullet on consolidation, cooperating and embracing state direction. He went on to say that the people had” lost patience, hope and tolerance” with an “experiment that did not prove to be worth all that it claimed”.
If recent reports on the Charleston Gazette are any indication, State BOE intervention in county school systems will continue to increase according to none other than ex-Lincoln County state Senator and current State BOE Board member Lloyd Jackson. Mr. Jackson, previously on the board for eight months under then Governor Bob Wise, was reappointed to that board by Governor Elector Earl Ray Tomblin in November 2011. He has said that fiscal difficulty “ is the number-one symptom of counties you have to take over. You’ve got to catch these things quickly because if you let them get out of control, get ready to take them over because this is where it starts,” Burdened by endless, cumbersome and impractical state BOE policies more of our school systems are seeing red ink on a regular basis.
Though seemingly happy to see Lincoln County regain control of its school system Jackson was quick to let his home BOE know, that although the county once again had control of the school system,” it has to make sure it keep doing what it’s doing in order to prevent similar takeovers from happening again.” A sobering thought indeed. Seems no matter what an intervention county does that threat will always be there until and unless Governor Tomlin finds the courage to take over his appointed board and return authority to the counties who must take responsibility for their schools and the education of students. It is not a job than can be done effectively long distance as West Virginia’s repeated failure nationwide has shown.
Of all that’s been said on the subject of takeover or “intervention” counties, comments by Joe Panetta, superintendent of finance for the Department of Education are perhaps most disturbing of all. The Charleston Gazette reports, “the state’s intervention will continue to increase in county school systems that face financial hardships, as state officials will perform monthly analyses and provide recommendations about how to reduce expenditures according to Mr. Panetta. “We are taking a more active role in providing assistance and monitoring counties’ financial status,“ he said. “These are things we haven’t required in the past.“ That speaks volumes to what has happened in many WV Counties. The WV State Board of Ed mandates spending on RESA, and buildings, and technology and hand picked vendors but has no clue if the local boards can come up with the money. They didn’t ask.
Gilmer County taxpayers were well aware that their county school system was operating in the black before state intervention. By the state’s own admission this was due only to our local Board of Eds exercising due diligence. Given Mr. Panetta’s statements, we now have every reason to fear that our school system may not be in the same financial condition when the state BOE finishes this “emergency takeover” due to a facilities emergency that leaves the children in the same buildings two years later. Or maybe they should just call it forced regionalization and consolidation and call a spade a shovel. One thing is certain; they won’t say they intervened to provide the ultimate aphrodisiac, personal and political power, to old cronies.
~~ AUTHOR ON FILE ~~
Calhoun County Judge Orders Evaluation for Woman Charged with Murdering Her Infant
Imprisonment Status: Pre-Trial Felon
||Kreh, Ashley Nicole
||Central Regional Jail
Offender Court Order Information
|Court Info Number
||Issuing Agency Location
||CALHOUN COUNTY - Bail Amount: $750,000.00
||BRAXTON COUNTY - Bail Amount: $5,000.00
||BRAXTON COUNTY - Bail Amount: $25,000.00
|Calhoun County woman was indicted for the death of her infant daughter earlier this year.|
Calhoun County judge ordered a 60-day evaluation instead of
sentencing on Monday, February 25, 2013.
she was charged with murder and child abuse resulting in the death of her 2-month-old girl.
Autopsy results showed the infant died of blunt force trauma to the head in February 2012.
The infant had sustained a skull fracture and a broken arm.
The infant died a couple of days later.
If convicted, she could face between 10 and 40 years in prison.
She told the Calhoun County judge that she was sorry!
Gilmer County Circuit Court Report – 02.25.13
Chief Judge Richard A. Facemire conducted a full morning of hearings in Gilmer County on his motion day, Monday, February 25, 2013.
• He heard 3 fugitive from justice cases with, Andrew Roper waiving extradition to return to New York, James Greer waived to return to Pennsylvania and Kevin Robinson waived to return to Maryland.
All 3 individuals were represented by Daniel Armstrong of Gassaway and authorities in their states have until 4:00 PM on Wednesday, March 06, 2013 to pick them up at Central Regional Jail or they will be released.
Several juvenile matters were heard and reset as follows:
• One on Tuesday, May 28, 2013 at 9:00 AM, one at 9:05 AM, one at 9:10 AM and one at 9:15 AM.
• Another juvenile will be heard on Tuesday, May 28, 2013 at 9:40 AM.
• Another juvenile will be heard on Friday, May 03, 2013 at 9:00 AM.
• Another will be heard on Monday, March 25, 2013 at 10:00AM.
• The civil case of Discover Bank vs. Jacob Dennison was before the Court asking leave to file an amended complaint against defendant, which motion was granted.
• The civil case of Educap vs. Gary B. Jenkins and Charley Gregory was also before the Court for hearing.
Plaintiffs have 60 days to provide an itemized list of charges to defendant and the matter was reset for Tuesday, May 28, 2013 at 9:30 AM.
• A modification of child support hearing was before the Court and was granted due to the defendant being incarcerated in Central Regional Jail.
• State of West Virginia vs. Casey Cottrill
She was before the Court asking for reconsideration of long term inpatient rehab, which motion Judge Facemire denied.
He said he would not approve outpatient rehab and ordered her to spend at least 6 months at an inpatient facility.
She did not appear for the hearing as she had an emergency involving her children, but her attorney Garth Beck appeared by telephone.
• State of West Virginia vs. Alecia Wine
She was before the Court asking for release from home confinement.
She was represented by her attorney, Clinton Bischoff of Summersville and Judge Facemire granted her motion.
• One name change petition was granted, changing Jodie Turner‘s name to Jodie Paugh.
• Several other orders were entered removing cases from the active docket of the Court.
Judge Facemire will return to Gilmer County on Tuesday, March 05, 2013 for docket call to set criminal cases for the term.
GRAND JURY HAS BEEN CANCELLED FOR THE MARCH, 2013 TERM.
Magistrate Pay Raise Clash May Set Tone for West Virginia House
At least some Republicans in West Virginia’s House of Delegates believe their failed bid to block proposed magistrate court pay raises, and similar partisan clashes that are expected as the session continues, will pay off in the next election.
The GOP’s net 11-seat gain in November, increasing their ranks to 46 of 100 delegates, proved insufficient when the House voted 53-45 Wednesday to pass the pay bill to the Senate. With two Democrats absent, two Republicans broke ranks to support the measure while one Democrat opposed it.
A similarly narrow vote spoiled a Monday attempt by Republicans to derail the bill through a parliamentary procedure. With the session not even two weeks old, the pair of pitched battles over this measure may set the session’s tempo for the divided House.
“Is this the way this session is going to be, all year?” House Majority Whip Mike Caputo asked in a floor speech blasting Republicans over Monday’s unsuccessful gambit. The Marion County Democrat also said that he had never before seen that parliamentary motion attempted in his 17 years in the Legislature.
But that tone may work fine for Republicans seeking to add to their recent gains in 2014, and perhaps erase the Democrats’ majority after 82 years.
Delegate Larry Faircloth emailed fellow GOP lawmakers ahead of Wednesday’s vote to tout a game plan with an eye to the next election.
A copy of the email was forwarded to The Associated Press. The Berkeley County freshman wrote that party allies had sent a press release to more than 40,000 state voters, to spur them to warn bill supporters that they would vote for their opponents in two years if they helped pass the bill.
Faircloth referred to the online campaign as an Internet “sniper attack” in his email.
“(It’s) used to reach a point anonymously and efficiently without getting (one’s) hands dirty,” the email said.
House officials on Friday said they were unaware of an unusual volume of emails or phone calls to Democratic lawmakers before the vote. Asked about his email, Faircloth estimated that he fielded around 30 such contacts.
“I assured them that I was against it,” Faircloth said Thursday. “I’ve heard through constituents in conversation that many others received emails and phone calls as well.”
Party-line fights aren’t new for the House. Starting with the 2006 session, GOP delegates have repeatedly sought to force measures idling in committees toward votes on passage through parliamentary procedures.
Topics of these discharge motions have included abortion, gay marriage and taxes. House Republicans lacked the numbers to prevail in any of these attempts — but they then became fodder for election attack ads.
The GOP has targeted the magistrate pay bill as ill-timed, given a lean budget picture that led to recent cuts totaling $75 million. The House Republicans also have declared jobs the top priority of their agenda this session. During Wednesday’s debate, they questioned how hiking the pay of elected officials and public employees helps the nearly 60,000 West Virginians seeking work.
Democrats argued that such talk amounted to grandstanding. They also cited several pending GOP-sponsored bills that would increase the budget, and recent requests from Republican delegates for special funding for district projects.
“This has nothing to do with unemployment. We can’t change that by this bill whether we pass it or not,” said House Judiciary Chairman Tim Miley, D-Harrison. “What concerns me the most is you want to vote against things that occur in other people’s counties while you have your hand out for your own county.”
While not a major session topic, raising magistrate court pay has been a recurring issue in recent years after the 2010 Census showed population declines in a handful of the 55 counties. As pay is linked to population, the resulting drop in court salaries has spurred a push to equalize all pay — at the high end of the current scale.
The state Supreme Court estimates the increased pay and benefits would cost $737,000, but also says it already has the needed money. The five justices have endorsed the bill, and Chief Justice Brent Benjamin — a Republican — is scheduled to discuss the court’s budget before the Senate Finance Committee on Wednesday.
Gilmer County Family Court Report – 02.13.13
Family Court Judge Larry Whited held Family Court on Wednesday, February 13, 2013 and heard several matters as follows:
• Two domestic violence cases were continued.
• One divorce was granted as follow: Alyssa Waddell (33) of Weston, WV divorced Brent Waddell (24) of Glenville, WV on February 13, 2013.
• One domestic violence case was dismissed for failure of petitioner to appear at beating.
• Another domestic violence was continued with an order of publication issued.
• A final hearing was heard in another divorce but attorneys were involved in the matter so no final outer has yet been entered.
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