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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.

02.29.2012
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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.

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

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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.

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.

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