                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                     November 24, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 13-0998 (Putnam County 12-MAP-17)                                        OF WEST VIRGINIA


Jason Lee Holbert,
Defendant Below, Petitioner

                               MEMORANDUM DECISION
        Petitioner Jason Lee Holbert’s appeal, by counsel Michael A. Davenport, arises from the
Circuit Court of Putnam County, which sentenced petitioner to confinement in jail for no more
than twelve months by order entered on September 6, 2013, following his conviction of domestic
battery. The State, by counsel Jennifer Scragg Karr, filed a response in support of the circuit
court’s order, to which petitioner filed a reply. Petitioner argues that both the circuit court and
the magistrate court erred by denying him the right to a trial by jury. Petitioner also asserts that
his counsel was ineffective in the proceedings below.

        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.

        In July of 2012, petitioner was charged with domestic battery against his wife, in
violation of West Virginia Code § 61-2-28(a). The investigating officer’s criminal complaint
indicated that the victim stated that petitioner struck her several times in the head with a closed
fist. The officer observed several large knots on the victim’s forehead and a large bruise on her
left temple. Prior to trial, petitioner’s trial counsel filed a motion for a jury trial in magistrate
court, but later withdrew the motion. Petitioner was ultimately convicted of domestic battery in a
bench trial. Following this conviction, petitioner filed an appeal in circuit court. The circuit court
subsequently held a bench trial and convicted petitioner of domestic battery and sentenced
petitioner to confinement in jail for no more than twelve months, with credit for two days served.
The circuit court suspended the sentence and placed petitioner on probation for two years. This
appeal followed.

       On appeal, petitioner argues that (1) he was denied his right to a trial by jury in both
magistrate court and in circuit court because his withdrawal of the motion for a jury trial in
magistrate court was not submitted in writing, and (2) his trial attorney was ineffective.



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       “This Court reviews the circuit court’s final order and ultimate disposition under an abuse
of discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va.
178, 469 S.E.2d 114 (1996).

         Upon our review, we find no error upon which to overturn petitioner’s domestic battery
conviction. Rule 5(d) of the West Virginia Rules of Criminal Procedure for Magistrate Court
provides that if a demand for a jury trial is made, it may not be withdrawn if the prosecuting
attorney objects to the withdrawal. Contrary to petitioner’s assertion, the rule does not require a
written withdrawal of a jury request in order for a bench trial to proceed. Petitioner admits that
his trial counsel withdrew the request for a jury trial in magistrate court. Our review of the record
does not show that the State objected to this withdrawal. Accordingly, the magistrate court did
not improperly proceed to try petitioner’s case without a jury.

        The Court also finds no error with the circuit court conducting a bench trial upon
petitioner’s appeal. Pursuant to Rule 20.1(d) of the West Virginia Rules of Criminal Procedure
for Magistrate Court and West Virginia Code § 50-5-13(b), a petitioner’s appeal of a magistrate
court criminal proceeding tried without a jury shall be tried de novo in circuit court without a
jury. The record shows that on appeal from magistrate court, the circuit court properly held a de
novo bench trial on petitioner’s domestic battery charge.

        Lastly, petitioner asserts that his trial counsel was ineffective for allowing his case to be
tried by the bench in both courts below, and for failing to raise the issue of his jury trial request
on appeal to the circuit court. Traditionally, an ineffective assistance of counsel claim is not
cognizable on direct appeal because of the insufficiency of the record from the criminal trial.

       We have urged counsel repeatedly to think of the consequences of raising this
       issue on direct appeal. Claims that an attorney was ineffective involve inquiries
       into motivation behind an attorney’s trial strategies. See State v. Miller, 194
       W.Va. 3, 459 S.E.2d 114 (1995). Without such facts trial counsel’s alleged lapses
       or errors will be presumed tactical moves, flawed only in hindsight. What is more,
       in the event a defendant pursues his claim on direct appeal and it is rejected, our
       decision will be binding on the circuit court through the law of the case doctrine,
       [“]leaving [defendant] with the unenviable task of convincing the [circuit court]
       judge that he should disregard our previous ruling.[”] U.S. v. South, 28 F.3d 619,
       629 (7th Cir.1994). That is why in Miller we suggested that a defendant who
       presents an ineffective assistance claim on direct appeal has little to gain and
       everything to lose.

State ex rel. Daniel v. Legursky, 195 W.Va. 314, 317 n.1, 465 S.E.2d 416, 419 n.1 (1995).
Accordingly, we decline to address this issue on appeal. Petitioner’s assertions concerning his
trial counsel’s performance in magistrate court and circuit court would be more appropriately
raised in a petition for writ of habeas corpus.

       For the foregoing reasons, we affirm.



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                                     Affirmed.

ISSUED: November 24, 2014

CONCURRED IN BY:

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




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