Diviney Attacker Denied New Trial

The West Virginia State Supreme Court on Tuesday denied Austin Vantrease his request for a new trial related to the brutal attack of Ashburn resident Ryan Diviney, who remains in a coma-like state after the Nov. 7, 2009, incident.

Vantrease and Jonathon May were both convicted in the case. May served seven months for battery and was released, while Vantrease, convicted of malicious assault and battery, remains in prison on a two- to 10-year sentence.

Vantrease filed an appeal this past spring to the court through his attorney, Lance Rollo, who said his client is entitled to a new trial because the previous defense attorney did not request a separate trial from his co-defendant, May. Rollo further claimed the trial court gave the jury an incomplete instruction about the inference of intent.

“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,” West Virginia Supreme Court Justices wrote in the decision.

Prosecutors and witnesses said May punched Diviney in the head after an argument about the World Series. Diviney fell and struck his head, rendering him unconscious before Vantrease continued the attack, repeatedly kicking Diviney’s head.

Vantrease has 30 days to ask the court to reconsider its decision.

Ken Diviney, Ryan’s father, said the appeal shows that Vantrease is unwilling to accept his responsibility in the incident, which left Diviney in a state that requires the round-the-clock care of his family in Ashburn.

“It’s now time to be accountable to Ryan,” Ken said.

Ken Diviney and Brian McIlhinney, a friend of Ryan's who was also injured in the incident, have filed a civil suit against Vantrease, May and several other people present for the beating who are accused of preventing Diviney from escaping.