                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                               April 10, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-0811 (Summers County 14-F-37)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Danny L. Cook,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Danny L. Cook, by counsel Benjamin N. Hatfield, appeals the Circuit Court of
Summers County’s July 29, 2015, order sentencing petitioner to a cumulative term of
incarceration of three to eleven years. The State of West Virginia, by counsel Zachary Aaron
Viglianco, filed a response. On appeal, petitioner alleges that he received ineffective assistance
of counsel during the underlying proceedings.

        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 March of 2014, the Summers County grand jury indicted petitioner on one count each
of burglary, second-degree sexual assault, and third-offense domestic battery. These charges
stem from an incident in which petitioner allegedly broke into his former girlfriend’s (“the
victim’s) residence; dragged the victim from her bedroom, down the stairs, and to the living
room couch; ripped off her underwear; and forcibly penetrated the victim. Petitioner also
smacked her, pushed the victim against the wall, punched her in the face, choked the victim, and
threatened to kill her and her daughter.

        The following year, petitioner pled guilty to two counts of attempt to commit a felony
and one count of third-offense domestic battery. Thereafter, the circuit court sentenced petitioner
to a cumulative term of incarceration of three to eleven years. Petitioner was also required to
register as a sex offender for ten years upon his release from prison. This appeal followed.

        As his lone assignment of error, petitioner contends that he received ineffective
assistance of counsel which resulted in an increased prison sentence. We have long held that

               [i]t is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error on a

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       direct appeal. The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

Syl. Pt. 10, State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992). We have further held that

       [t]he very nature of an ineffective assistance of counsel claim demonstrates the
       inappropriateness of review on direct appeal. To the extent that a defendant relies
       on strategic and judgment calls of his or her trial counsel to prove an ineffective
       assistance claim, the defendant is at a decided disadvantage. Lacking an adequate
       record, an appellate court simply is unable to determine the egregiousness of
       many of the claimed deficiencies.

State v. Miller, 194 W.Va. 3, 15, 459 S.E.2d 114, 126. On appeal, petitioner contends that his
trial counsel was ineffective in two ways: (1) failing to appropriately interview witnesses or to
investigate the case; and (2) failing to object to discrepancies in his presentence investigation
report and sexual offender risk assessment during his sentencing hearing. Based upon our review
of the same, we find that the record herein is insufficient to determine if trial counsel’s decisions
were strategic or ineffective. Thus, we decline to address petitioner’s claims on direct appeal.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

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




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