                                     STATE OF WEST VIRGINIA
                                   SUPREME COURT OF APPEALS


    State of West Virginia, Plaintiff Below,                                               FILED
    Respondent                                                                          October 21, 2013
                                                                                     RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
    vs) No. 13-0332 (Putnam County 12-F-77)                                            OF WEST VIRGINIA 


    Thomas L. Moore Jr., Defendant Below,
    Petitioner


                                      MEMORANDUM DECISION

            Petitioner Thomas L. Moore Jr., by counsel Troy N. Giatras and Matthew W. Stonestreet,
    appeals the Circuit Court of Marion County’s February 7, 2013 order sentencing him to a term of
    incarceration of one to three years following his guilty plea to one count of driving on a revoked
    license, DUI related, third offense. The State, by counsel Laura Young, filed a response. On
    appeal, petitioner alleges that he received ineffective assistance of counsel 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 is appropriate under Rule 21 of the Rules of Appellate
    Procedure.

            On July 11, 2012, petitioner was indicted for the felony offense of driving on a revoked
    license, DUI related, third offense. In December of 2012, the circuit court held a plea hearing,
    during which the circuit court asked petitioner if he understood the crime to which he was
    pleading. Petitioner replied that he was pleading guilty to “third offense of DWI on revoked.” The
    circuit court clarified that “it’s driving on a revoked license, DUI related, third offense,” and
    thereafter asked petitioner if this was his understanding to which petitioner responded in the
    affirmative. After accepting petitioner’s guilty plea, the circuit court sentenced petitioner to a term
    of incarceration of one to three years and ordered petitioner to pay a $3,000 fine. The circuit court
    approved petitioner’s request to serve his sentence on home incarceration.

            On appeal, petitioner alleges multiple errors in his representation below, including his own
    misunderstanding of the crime to which he was pleading and the rights he forfeited, as well as
    counsel’s failure to object during the plea colloquy or present witnesses on his behalf. Because
    petitioner raises a claim of ineffective assistance of counsel in this direct criminal appeal, the
    Court declines to address this assignment of error. Traditionally, an ineffective assistance of
    counsel claim is not cognizable on direct appeal because of the insufficiency of the record from
    the criminal trial.

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       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).

        We decline to address this issue on direct appeal because the record is insufficient. The
claim of ineffective assistance of counsel would more appropriately be addressed pursuant to a
petition for writ of habeas corpus. If he desires, petitioner may pursue a petition for writ of post-
conviction habeas corpus.

       For the foregoing reasons, the circuit court’s February 7, 2013 sentencing order is hereby
affirmed.


                                                                                          Affirmed.

ISSUED: October 21, 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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