William Scott Bookheimer, by counsel Clinton R. Bischoff,
appeals the Circuit Court of Nicholas County's January
23, 2017, order sentencing him to not more than five years of
incarceration following his guilty plea to felon in
possession of a firearm. The State of West Virginia, by
counsel Robert L. Hogan, filed a response. On appeal,
petitioner argues that his plea was involuntary.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
September of 2015, petitioner was indicted on one count of
felon in possession of a firearm. Following various delays,
including several substitutions of counsel, the parties
appeared for trial on November 15, 2016. Prior to opening
statements, the parties announced that they had reached a
plea agreement. Petitioner, who had two prior felonies,
agreed to plead no contest to the felon in possession of a
firearm charge in exchange for the State's agreement to
stand silent at sentencing and not file a recidivist
information. The circuit court, following a plea hearing,
accepted petitioner's plea.
December 29, 2016, the parties appeared before the circuit
court for sentencing. Petitioner was sentenced to not more
than five years of incarceration. The circuit court
memorialized petitioner's sentence in its January 23,
2017, "Sentencing Order." It is from this order
that petitioner appeals.
appeal, petitioner argues that his plea was not voluntary due
to the "tumultuous" nature of his relationship with
his appointed counsel. Petitioner contends that he alerted
the circuit court to the fact that counsel purportedly failed
to investigate his case, prepare, and respond to petitioner;
questioned petitioner's truthfulness; withheld documents
and materials; and addressed him in a condescending tone.
Petitioner further asserts that, when the parties appeared
for trial, his attorney represented to the circuit court that
she would serve only as an advisor and that petitioner
intended to represent himself. Petitioner argues that his
attorney's alleged incompetence made entering into a plea
agreement with the State the only option, thereby rendering
such plea involuntary. Finally, petitioner argues that he had
a defense to his charge and, had counsel not acted
incompetently, he would have proceeded to trial rather than
enter into the plea agreement.
previously held that "[a] direct appeal from a criminal
conviction based on a guilty plea will lie where an issue is
raised as to the voluntariness of the guilty plea or the
legality of the sentence." Syl. Pt. 1, State v.
Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978).
The controlling test as to the voluntariness of a guilty
plea, when it is attacked either on a direct appeal or in a
habeas corpus proceeding on grounds that fall within those on
which counsel might reasonably be expected to advise, is the
competency of the advice given by counsel.
Id. at 212, 248 S.E.2d at 835, Syl. Pt. 2. Finally,
[b]efore a guilty plea will be set aside based on the fact
that the defendant was incompetently advised, it must be
shown that (1) counsel did act incompetently; (2) the
incompetency must relate to a matter which would have
substantially affected the fact-finding process if the case
had proceeded to trial; (3) the guilty plea must have been
motivated by this error.
Id., Syl. Pt. 3.
review of the record below, we find no merit to
petitioner's arguments on appeal. Although petitioner
makes various assertions concerning his attorney's
allegedly deficient representation, he offers no specifics to
substantiate his accusations. Rather, the record reveals that
petitioner asserted disagreements with several prior
attorneys and otherwise attempted to prolong his case in an
effort to avoid any resolution of it. Further, although
petitioner's attorney appeared for trial and alerted the
circuit court to the fact that, as far as she was aware,
petitioner intended to represent himself, once petitioner
indicated that he did, in fact, want an attorney,
petitioner's counsel resumed her representation of him.
Indeed, during petitioner's plea hearing, he expressed
his satisfaction with counsel's representation.
Petitioner stated that he was satisfied with counsel's
advice concerning the plea agreement, that there was nothing
she failed to do during her representation of him, that she
did not do anything petitioner did not want her to do, and
that he had no complaints whatsoever concerning her
representation of him.
similarly find no merit to petitioner's assertion that he
had a defense to his charge and would have proceeded to trial
if not for counsel's allegedly incompetent
representation. While petitioner fails to articulate on
appeal what his defense would have been, the record indicates
that he intended to argue that someone drugged him, put him
in a car with a gun on his person, and then pushed the car
over a hill. At his plea hearing, petitioner admitted he had
"no way of proving" this defense. In light of the
fact that a conviction in this matter would have amounted to
petitioner's third felony conviction, that the State
would have been free to pursue a recidivist charge exposing
petitioner to a life sentence, and that petitioner
acknowledges that he had no way of proving his claimed
defense, we find that his attorney did not act ...