### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### February 23, 2018

EDYTHE NASH GAISER, CLERK vs) No. 17-0207 (Nicholas County 15-F-75) SUPREME COURT OF APPEALS

OF WEST VIRGINIA William Scott Bookheimer, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner William Scott Bookheimer, by counsel Clinton R. Bischoff, appeals the Circuit Court of Nicholas County’s Ja nuary 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.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In September of 2015, petitioner was indicted on one count of felon in possession of a firearm. Following various delays, including se veral substitutions of counsel, the parties appeared for trial on November 15, 2016. Prior to opening statements, the pa rties 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 ch arge in exchange for the State’s agreement to stand silent at sentencing and not file a recidivist information. Th e circuit court, following a plea hearing, accepted pe titioner’s plea.

On December 29, 2016, the parties appeared before the circuit court for sentencing.

Petitioner was sentenced to not more than fi ve years of incarceration. The circuit court memorialized petitioner’s senten ce in its January 23, 2017, “Sentencin g Order.” It is from this order that petit ioner appeals.

On 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 purportedl y failed to investigate his case, prepare, and respond to petitioner; questioned petitioner’s truthfulness; withhe ld documents and materials; and addressed him in a condescending tone. Peti tioner further asserts that, when the parties

1appeared for trial, his attorney represented to the circuit court that she would serve only as an advisor and that petitioner intended to represent himself. 1 Petitioner argues that his attorney’s alleged incompetence made entering into a pl ea agreement with the State the only option, thereby rendering such plea involun tary. 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.

We have 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 se ntence.” Syl. Pt. 1, State v. Sims , 162 W.Va. 212, 248 S.E.2d 834 (1978).

The controlling test as to the volun tariness 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 mi ght 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 pr ocess if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error.

Id. , Syl. Pt. 3.

Upon review of the record below, we find no merit to petitioner’s arguments on appeal. Although petitioner makes various assertions concerning his at torney’s allegedly deficient representation, he offers no specifi cs to substantiate his accusati ons. Rather, the record reveals that petitioner asserted disagreements with seve ral prior attorneys and otherwise attempted to prolong his case in an effort to avoid any resoluti on of it. Further, althoug h 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 indi cated that he did, in fact, want an attorney, petitioner’s counsel resume d her representation of him. Indeed, during petitioner’s plea hearing, he expressed his satisfaction with counsel’s representation. Petitione r stated that he was satisfied

with counsel’s advice concerni ng the plea agreement, that th ere 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 represen tation of him.

We 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 couns el’s allegedly incompet ent representation. While petitioner fails to articulate on appeal what his de fense would have been, th e record indicates that

1 This assertion was based on his attorney’s understanding of petitioner’s wishes. Petitioner’s counsel, however, was instructed by th e circuit court to conti nue her representation of petitioner.

2he 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 convi ction in this matter would have amounted to petitioner’s third felony convicti on, that the State would have b een 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 defens e, we find that his attorney did not act incompetently in recommending that petitioner enter into a plea agreement. We further find, and petitioner acknowledges, that the record reve als a plea colloquy sufficient to c onclude that petitioner’s plea was voluntary.

For the foregoing reasons, we affirm the circuit court’s January 23, 2017, sentencing

order.

Affirmed.

ISSUED: February 23, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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