This article ran on the front page of the Dominion Post (Morgantown, WV).
High court: No new trial in Diviney case
Vantrease filed appeal of 2-10 year sentence
BY BRANDY BRUBAKER The Dominion Post
The state Supreme Court decided Tuesday not to grant a new trial to one of the two men convicted of the 2009 attack that left Ryan Diviney in a coma-like state.
Austin Vantrease, 20, filed his appeal before the state Supreme Court in May through his attorney Lance Rollo.
Vantrease is serving a two- to 10-year sentence for malicious assault.
In the petition, Rollo said Vantrease is entitled to a new trial because his previous attorney didn’t ask for his trial to be held separately from that of his co-defendant, Jonathon May, and because the court gave an incomplete instruction to the jury about the inference of intent.
Supreme Court justices, however, affirmed the trial court’s decisions.
“Upon consideration of the standard of review, the petition, and the record presented, the court finds no substantial question of law and no prejudicial error,” the court’s decision read.
Vantrease and May were convicted in a July 2010 jury trial — Vantrease of felony malicious assault and May of the lesser charge of misdemeanor battery. May was sentenced to one year in jail and was released after serving about seven months.
Prosecutors said May punched Diviney in the head after an argument about the World Series in front of the Willey Street Dairy Mart on Nov. 7, 2009. Diviney fell to the ground and struck his head, and was then kicked in the head by Vantrease, prosecutors said. He remains in a coma-like state and receives round-theclock care in his family’s Virginia home.
A Supreme Court deputy clerk said Vantrease has 30 days to ask the court to reconsider its decision. After that, the decision becomes final and, if Vantrease wants to appeal it further, he’d have to go before the U.S. Supreme Court.
Rollo said he hadn’t yet seen the decision when reached Tuesday afternoon.
Ken Diviney, Ryan Diviney’s dad, said Vantrease trying to get his conviction overturned was another example of his unwillingness to accept responsibility for what happened to Ryan.
“It’s now time to be accountable for Ryan,” he said.