                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                    April 9, 2018
vs.) No. 17-0446 (Braxton County 16-F-26)                                         EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA 
Kenneth Bookheimer,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
         Petitioner Kenneth Bookheimer, by counsel Andrew B. Chattin, appeals the Circuit Court
of Braxton County’s April 17, 2017, sentencing order. The State, by counsel Gordon L. Mowen,
II, filed a response. On appeal, petitioner argues that the circuit court erred in denying his motion
to suppress.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On February 13, 2016, Deputy Harry Teare of the Braxton County Sheriff’s Department
responded to a call regarding an impaired driver. Deputy Teare and Trooper Logan Mohr, a West
Virginia State Trooper, located the driver, Johnna Skidmore, at a local business. Upon
approaching the vehicle, Trooper Mohr observed hypodermic needles sticking out of Ms.
Skidmore’s open purse. Ms. Skidmore explained that a friend had given her the needles at her
residence. Upon the search of her purse, Trooper Mohr found a spoon and pipe with what
appeared to be methamphetamine residue.
         Based upon Ms. Skidmore’s statement that she received needles and other items from a
friend at her residence, Trooper Mohr applied for a search warrant to search that home. Trooper
Mohr’s request for a warrant was based upon his belief that evidence of further
methamphetamine-related crimes were on the premises. Braxton County Magistrate Mary Beth
Smith issued a warrant for a search of Ms. Skidmore’s residence and found that the affidavit
provided in the warrant application established probable cause on its face. Trooper Mohr later
testified that the warrant was issued at approximately 3:00 p.m. and the search was initiated
shortly thereafter, at approximately 3:15 p.m.
       A search of the residence revealed evidence of a methamphetamine laboratory, materials
used in the production of methamphetamine, and multiple firearms. Petitioner, a previously


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convicted felon, was present at the home during this search and had been living there for
approximately two months.

        On October 4, 2016, petitioner was indicted by a grand jury on four felony counts: (1)
attempt to operate a clandestine drug laboratory in violation of West Virginia Code § 60A-4-411,
(2) conspiracy in violation of West Virginia Code § 61-10-31, (3) possession of Ephedrine with
intent to use to manufacture methamphetamine in violation of West Virginia Code § 60A-10-
4(d), and (4) person prohibited from possessing a firearm in violation of West Virginia Code §
61-7-7(b)(2).

        The circuit court held a hearing on petitioner’s and Ms. Skidmore’s motions to suppress
on January 6, 2017.1 Ms. Skidmore alleged that the police lacked the authority to search her
purse. However, the circuit court rejected this claim, finding that the needles were in plain view,
which gave the officers probable cause to conduct a search of the purse. Ms. Skidmore and
petitioner also challenged the validity of the search warrant, alleging that the warrant application
did not establish probable cause. The circuit court denied this claim, finding that the warrant
contained a detailed request that constituted probable cause on its face. Trooper Mohr made clear
in the warrant application that he believed a search of the residence was necessary because Ms.
Skidmore informed him that she had obtained drug paraphernalia from that residence. Trooper
Mohr testified that the search warrant was obtained before the search was initiated, although
petitioner argued that he did not see the warrant until his attorney showed it to him after his
arrest.

        On January 25, 2017, petitioner agreed to enter a guilty plea to the felony offense of
person prohibited from possessing a firearm. In exchange, the State agreed to stand silent at
sentencing on the matter and the remaining felony counts were dismissed. On February 27, 2017,
the circuit court held a hearing wherein it sentenced petitioner to a term of incarceration of not
less than five years. Petitioner now appeals the circuit court’s April 17, 2017, sentencing order.

       We have held as follows:

       “In reviewing the findings of fact and conclusions of law of a circuit court . . . ,
       we apply a three-pronged standard of review. We review the decision . . . under
       an abuse of discretion standard; the underlying facts are reviewed under a clearly
       erroneous standard; and questions of law and interpretations of statutes and rules
       are subject to a de novo review.” Syllabus Point 1, State v. Head, 198 W.Va. 298,
       480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).

        On appeal, petitioner argues that the circuit court erred in denying his motion to suppress
evidence found in the residence and that the trooper conducted a search of his home before
obtaining a warrant. Further, petitioner asserts that his constitutional privacy rights were
violated. However, we find that petitioner waived his right to raise this argument on appeal

                                                                   
       1
           Petitioner and Ms. Skidmore were tried together below.
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because his guilty plea was not a conditional guilty plea and petitioner did not reserve his right to
challenge the circuit court’s denial of his motion to suppress in a subsequent appeal. The right to
appeal is limited in the context of a guilty plea. We explained in State v. Sims, 162 W.Va. 212,
215, 248 S.E.2d 834, 837 (1978) that “[a]n appeal ordinarily does not lie in a criminal case from
a judgment of conviction rendered upon a plea of guilty.” Such appeals are generally limited to
cases in which “an issue is raised as to the voluntariness of the guilty plea or the legality of the
sentence.” Id. at 212, 248 S.E.2d at 835, Syl. Pt. 1, in part.

        Further, we have explained that a “defendant waives significant constitutional rights by
entering into a plea agreement[.]” State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 77, 404 S.E.2d
763, 768 (1991); see also State v. Greene, 196 W.Va. 500, 505, 473 S.E.2d 921, 926 (1996) ( “If
any principle is well settled in this State, it is that, in the absence of special circumstances, a
guilty plea waives all antecedent constitutional and statutory violations save those with
jurisdictional consequences.”); Tollett v. Henderson, 411 U.S. 258, 267 (1973) (when a criminal
defendant openly admits in court that he is guilty of the offense charged, “he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea.”). Notably, once a criminal defendant waives his constitutional
rights, “he cannot be heard to complain thereafter.” Call v. McKenzie, 159 W.Va. 191, 195-96,
220 S.E.2d 665, 669-70 (1975).

        Based upon a thorough review of the record on appeal and the arguments of counsel, we
find that petitioner waived his right to appeal the issues raised herein. It is undisputed that
petitioner pled guilty to the felony offense of person prohibited from possessing a firearm.
Petitioner does not challenge the voluntariness of his guilty plea, the legality of his sentence, or
any of his counsel’s advice prior to acceptance of that guilty plea. Therefore, we decline to
address on direct appeal petitioner’s arguments concerning the warrant or the denial of his
motion to suppress.

       For the foregoing reasons, the circuit court’s April 17, 2017, sentencing order is hereby
affirmed.


                                                                                          Affirmed.

ISSUED: April 9, 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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