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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