Supreme Court orders Fayette County to reconsider convicted murderer’s appeal

The state Supreme Court wants a Fayette County judge to take another look at the appeal of James VanDivner, who is currently on death row for fatally shooting his ex-girlfriend in 2004.
VanDivner, 66, was convicted in Fayette County Court in 2007 of first-degree murder and sentenced to death for shooting Michelle Cable in front of her home in Grindstone. Prosecutors presented testimony at trial from Cable’s daughter, who testified she saw VanDivner grab her mother’s hair and shoot her, execution-style, in the head.
Following the conviction, VanDivner lodged a Post Conviction Relief Act (PCRA) appeal, arguing among other things, that he was intellectually disabled and therefore not eligible for the death penalty.
The appeal failed, prompting VanDivner’s court-appointed attorney, Brent Peck, to bring the matter before the state’s high court, to examine whether VanDivner’s trial attorneys were ineffective for failing to develop evidence that his intellectual disability began before he turned 18.
“We are constrained to hold that the PCRA court’s factual finding that (VanDivner) failed to establish that his intellectual disabilities manifested prior to age 18 is not supported by substantial evidence,” the justices wrote. “Consequently, we find that (VanDivner)’s claim that trial counsel was ineffective for failing to present this evidence at his pretrial hearing has arguable merit.”
However, the high court pointed out, in order to prevail on a PCRA claim of ineffectiveness, VanDivner would have to establish that no reasonable basis existed for his trial counsel’s action or failure to act, and that the there is a reasonable probability that the result of the proceeding would have been different if his trial attorney had been effective.
The justices ordered Fayette County Senior Judge Gerald R. Solomon, who oversaw the PCRA proceedings, to prepare a supplemental opinion addressing several issues, including: whether any reasonable basis existed for the failure to investigate the state regulations regarding special-education placement when VanDivner was a student, the failure to seek additional school records beyond (VanDivner)’s attendance record for the 1964-1965 school year, and failure to present the testimony of Dr. Alvin Sheetz, who served as assistant supervisor of the Fayette County Special Education Program and was responsible for special education placement at the time (VanDivner) was a student.
Sheetz testified at a PCRA hearing that no child would have been admitted to the special education program unless that child had an IQ between 50 and 75.
Solomon rejected Sheetz’s testimony in favor of that supplied by Frazier School District Special Education Supervisor Ann Peters at pre-trial hearings, the Supreme Court pointed out. Peters told the court that at the time VanDivner was in school, there was no formalized procedure for placement in special education.
At a PCRA hearing, Dr. Kristine Jacquin, an expert in diagnosing intellectual disabilities, also testified regarding the age of onset.
Although Jacquin testified she spent 84 hours evaluating VanDivner — which included two days of evaluating him in person, three days interviewing people who knew him and reviewing records — Solomon relied on the testimony of the commonwealth’s witness, Dr. Bruce Wright, who testified school records contained “no reference to mental retardation prior to age 18,” the justices wrote.
Peck also argued in the appeal that prosecutorial misconduct was evident in the investigation of the case, in that police failed to disclose exculpatory statements made to them by witnesses. The Supreme Court did not address that claim.
Chief Justice Thomas G. Saylor wrote a concurring opinion, stating he believes the case should not be viewed solely through the lens of an ineffectiveness claim.
“It would appear that a strong argument exists that, if (VanDivner) is determined to be intellectually disabled, the sentence of death must be vacated, irrespective of whether trial counsel can be faulted for failing to marshal a better case to prove the disability,” Saylor stated.
VanDivner remains for now on death row at SCI-Greene.