                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia, Plaintiff Below,                                             FILED
Respondent                                                                           May 24, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 12-0812 (Pocahontas County 11-M-AP-02 & 03)                               OF WEST VIRGINIA


Jerome E. Heinemann, Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

         Petitioner’s pro se appeal arises from the Circuit Court of Pocahontas County, wherein the
circuit court ordered petitioner to pay court costs of $260.80 and $170.80 for his convictions of
driving on a suspended license and driving with an expired registration, respectively, plus the
costs of appeal by order entered June 6, 2012. The State, by counsel Andrew D. Mendelson, has
filed its response, to which petitioner has filed a reply.

       This 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On December 18, 2010, petitioner was issued citations for driving a motor vehicle while
his license was suspended and for driving a motor vehicle with an expired vehicle registration.
These citations were issued subsequent to a traffic stop by Pocahontas County Sheriff David
Jonese. A bench trial was held in magistrate court in May of 2011, after which petitioner was
found guilty of both charges. According to the State, petitioner was fined $100 and assessed $160
in court costs for his conviction of driving on a suspended license, and was fined $10 and
assessed $160 in court costs for his conviction of driving with an expired registration. Petitioner
filed timely appeals of these convictions to the circuit court and a bench trial was held on April
11, 2012. The circuit court ultimately ordered petitioner to pay court costs of $260.80 and
$170.80 for his convictions of driving on a suspended license and driving with an expired
registration, respectively, plus the costs of appeal.

        On appeal, petitioner alleges three assignments of error. First, he alleges that the circuit
court erred in failing to address his contention that someone who has been elected sheriff with no
training at an approved law-enforcement training academy cannot carry out the same duties as a
state trooper or deputy sheriff. According to petitioner, West Virginia Code § 30-29-1 states that
civilians who are elected as sheriff but not duly trained in law enforcement are relegated to

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administrative duties. As such, he argues that because the sheriff in this matter lacked the
requisite training, he also lacked the authority to initiate a traffic stop. Further petitioner alleges
that, in testifying to his alleged training in both magistrate and circuit courts, Sheriff Jonese
provided conflicting testimony as to the training he received and the methods by which he
attempted to estimate petitioner’s speed at the time of the traffic stop. However, petitioner asserts
that there is no transcript of the magistrate court proceedings and he is therefore at a disadvantage
in regard to the sheriff’s testimony. Further, petitioner alleges that the circuit court erred in
finding that the State provided evidence of probable cause for the traffic stop because the sheriff
himself admitted that speeding was used as a pretext to make the stop in order to generate
revenue. Additionally, petitioner argues that no evidence of speeding was ever presented because
the sheriff only estimated his speed. Lastly, petitioner alleges that the circuit court erred in failing
to address the issue that speeding was merely a pretext to initiate a traffic stop in order to generate
revenue. Petitioner argues that because of this issue and a lack of probable cause, all subsequent
evidence gathered during the traffic stop should have been excluded.

       We have previously held that

       “In reviewing challenges to the findings and conclusions of the circuit court, we
       apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court's underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West
       Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl., State v. Maisey, 215 W.Va. 582, 600 S.E.2d 294 (2004). Upon our review, the Court finds
no merit to petitioner’s assignments of error. Petitioner’s main contention is that the sheriff who
initiated the traffic stop at issue did not have the requisite training to do so. However, nothing in
the record shows that the circuit court abused its discretion in finding that “the sheriff has been
trained in estimating the speed of a vehicle and provided a certification of his training and
testimony as to that estimation training.” Further, the record is devoid of evidence that the circuit
court abused its discretion in finding that there was probable cause that petitioner was exceeding
the posted speed limit. While petitioner argues that both he and his wife provided contradictory
testimony regarding their speed, the Court notes that

       “[a] reviewing court cannot assess witness credibility through a record. The trier of
       fact is uniquely situated to make such determinations and this Court is not in a
       position to, and will not, second guess such determinations.” Michael D.C. v.
       Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997); accord Gum v.
       Dudley, 202 W.Va. 477, 484, 505 S.E.2d 391, 398 (1997).

Webb v. W.Va. Bd. of Med., 212 W.Va. 149, 156, 569 S.E.2d 225, 232 (2002).

       For the foregoing reasons, the circuit court’s order is hereby affirmed.



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                                        Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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