                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                     October 18, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-1436 (Berkeley County 11-F-199)                                     OF WEST VIRGINIA



Ricky D. Webster,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Ricky D. Webster, by counsel Sherman L. Lambert Sr., appeals the Circuit
Court of Berkeley County’s order entered on November 1, 2012, that denied his motion for a
new trial, and sentenced him to the statutory term of not less than ten nor more than twenty-five
years for the offense of sexual assault in the second degree, and to the statutory term of not less
than two nor more than ten years for the offense of assault during the commission of a felony,
with sentences to run concurrently. Petitioner was further sentenced to twenty years of
supervised release. The State, by counsel Cheryl K. Saville, filed a response.

       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 23, 2011, petitioner raped K.H.1 in the area of Commerce Street, just off North
Queen Street, in Martinsburg, West Virginia. Petitioner and the victim were acquaintances. K.H.
was drinking with some friends at the Moose Lodge that evening. She called petitioner on her
cell phone to talk. He invited her to a party nearby. K.H. left the Moose Lodge around 11:30, and
met petitioner to go to the party for some drinks. On the way to the party, petitioner grabbed
K.H. by her neck, dragged her by the hair across a gravel road to a remote location, and brutally
raped her. Afterward, K.H. called 911, and she was treated for her injuries at an area hospital.

        In October of 2011, a grand jury indicted petitioner on charges of two felony counts of
sexual assault in the second degree and one felony count of assault during the commission of a
felony. After a three-day trial in July of 2012, a jury returned a verdict convicting petitioner of
Count Two, sexual assault in the second degree, and Count Three, assault during the commission
of a felony. The jury acquitted petitioner on Count One, a separate charge of sexual assault in the

       1
          In view of the sensitive nature of this case, this Court will refer to the victim by her
initials. Clifford K. v. Paul S., 217 W.Va. 625, 630 n.1, 619 S.E.2d 138, 143 n.1 (2005).
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second degree.

       On October 15, 2012, the matter came before the court for a hearing on post-trial motions
and for sentencing. The circuit court denied petitioner’s motion for a new trial, and sentenced
him as set forth above. The final order was entered on November 1, 2012, and this appeal
followed.

         Petitioner raises two assignments of error in this appeal, including an ineffective
assistance of counsel claim. Petitioner also contends that the circuit court erred by imposing
strict time limitations on closing summation. For the reasons set forth below, we affirm the order
of the circuit court.

        Petitioner raises an ineffective assistance of counsel claim as his first assignment of error.
Traditionally, an ineffective assistance of counsel claim is not cognizable on direct appeal.

       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. We express no opinion on the merits of this issue or of any habeas
petition.

        Petitioner’s remaining assignment of error is that the circuit court erred by not providing
notice to counsel, and then imposing a thirty-minute time limitation on closing summation. He
argues that the purpose of West Virginia Trial Court Rule 42.04(b) is to provide an opportunity
for counsel to give a closing summation to the jury without the circuit court intermittently
interrupting with a “stop watch” approach to the remaining time left.

        To resolve this issue, this Court employs the standard of review articulated in Syllabus
Point 3 of State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000):




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       In reviewing challenges to findings and rulings made by a circuit court, we apply
       a two-pronged deferential standard of review. We review the rulings of the circuit
       court concerning a new trial and its conclusion as to the existence of reversible
       error 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.

We also note that “a trial court has broad discretion in controlling argument before the jury and
that counsel should be afforded wide latitude in presenting a case.” Dawson v. Casey, 178 W.Va.
717, 721, 364 S.E.2d 43, 47 (1987).

       The West Virginia Trial Court Rules state, in pertinent part, that “[t]he time of [closing]
argument in any case may be determined and regulated by the court, but the convenience of
counsel will be consulted.” T.C.R. 42.04(b). Additionally, the United States Supreme Court has
found that the

       judge must be and is given great latitude in controlling the duration and limiting
       the scope of closing summations. He [or she] may limit counsel to a reasonable
       time and may terminate argument when continuation would be repetitive or
       redundant. [The judge] may ensure that argument does not stray unduly from the
       mark, or otherwise impede the fair and orderly conduct of the trial. In all these
       respects [the judge] must have broad discretion.

Herring v. New York, 422 U.S. 853, 862 (1975). Herring was quoted with approval by this Court
in State v. Webster, 218 W.Va. 173, 176, 624 S.E.2d 520, 523 (2005).

        In the instant proceeding, the circuit court afforded petitioner’s counsel the opportunity to
make a closing summation. The circuit court gave cues to petitioner’s counsel during his closing
summation indicating how much time he had remaining. Petitioner’s counsel even stopped to ask
how much time he had left during one exchange. Furthermore, the record reflects that
petitioner’s counsel was provided some additional latitude when the circuit court gave him a
final warning to take a minute to wrap up since he was “already over time.”

       We find no indication from a plain reading of the record that petitioner was prejudiced in
any way or that counsel’s argument suffered due to the circuit court’s time limitation on closing
summation. Therefore, this Court does not conclude that the circuit court abused its discretion or
deprived petitioner of a fair trial.

       For the foregoing reasons, we affirm the order of the Circuit Court of Berkeley County,
entered on November 1, 2012.


                                                                                          Affirmed.




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ISSUED: October 18, 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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