STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 99 CRS 54130
KENNETH LAMONT FISHER, 00 CRS 12498
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Joyce S. Rutledge, for the State.
Robert T. Newman, Sr., for defendant-appellant.
HUDSON, Judge.
Defendant was charged with possession of cocaine and having
attained the status of habitual felon. The State's evidence tends
to show that while responding to a noise complaint on 10 December
1999, Officers C.K. Redmon and Daniel Russell of the Winston-Salem
Police Department observed defendant and another man fighting in
the street. The officers stopped their police cruiser and
approached the men. Officer Redmon separated the two men and
handcuffed them. He subsequently frisked defendant and “found a
small glass object, which [he] recognized to be a crack pipe” in
defendant's sock. Officers Redmon and Russell learned that
defendant had been assaulting the other man. Both officersaccompanied defendant to the hospital for treatment of a cut
received during the altercation with the other man, whereupon they
observed a plastic bag fall from defendant's pants leg. The bag
contained a green leafy vegetable matter, which Officer Redmon
recognized to be marijuana. Defendant thereafter refused to be
treated by any doctors and was transported by Officers Redmon and
Russell to the downtown detention facility. An inventory of the
contents of defendant's pockets yielded a substance later
identified as crack cocaine.
The jury found defendant guilty of possession of cocaine.
After the Clerk of Court testified as to defendant's three previous
felony convictions, the jury also found that defendant had attained
the status of habitual felon. The trial court sentenced defendant
to 105 to 135 months' imprisonment. Defendant appeals.
By his first five assignments of error, defendant argues that
he received ineffective assistance of counsel and therefore, was
entitled to the dismissal of all charges against him. At the
outset, however, we note that defendant appears to have
“'prematurely asserted' his ineffective assistance of counsel
claim.” State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544,
548 (2001) (quoting State v. Fair, 354 N.C. 131, 167, 557 S.E.2d
500, 525 (2001), cert. denied, 122 S. Ct. 2332, 153 L. Ed. 2d 162
(2002). The “accepted practice” is to raise claims of ineffective
assistance of counsel in post-conviction proceedings, rather than
on direct appeal. State v. Dockery, 78 N.C. App. 190, 192, 336
S.E.2d 719, 721 (1985). As defendant's argument concerns potentialquestions of trial strategy and counsel's impressions, an
evidentiary hearing available through a motion for appropriate
relief is the best mechanism to examine and determine these issues.
See Stroud, 147 N.C. App. at 556, 557 S.E.2d at 548. Accordingly,
we dismiss these assignments of error without prejudice to
defendant's right to file a motion for appropriate relief in the
superior court. See id.; see also State v. Ware, 125 N.C. App.
695, 697, 482 S.E.2d 14, 16 (1997) (dismissing the defendant's
appeal where the issues could not be determined from the record on
appeal and noting that to “properly advance these arguments,
defendant must move for appropriate relief pursuant to G.S. 15A-
1415[]”).
We move then to defendant's remaining assignments of error by
which he argues that the North Carolina Habitual Felon Act violates
the United States and North Carolina Constitutions. We disagree.
Defendant acknowledges that he has not preserved these
assignments of error for appellate review in accordance with N.C.
R. App. P. 10. He asks that we review these assignments of error,
pursuant to our authority under N.C. R. App. P. 2, “to prevent
manifest injustice.” However, even if the Court chose to review
these errors, defendant cannot show merit to his position. As
conceded by defendant in his brief, “many cases have upheld the use
of the Habitual Felon [Act].” We conclude that the cases
referenced by defendant as authority for his argument are readily
distinguishable. Moreover, existing precedent shows no
constitutional infirmity in this state's Habitual Felon Act. SeeState v. Todd, 313 N.C. 110, 117-19, 326 S.E.2d 249, 253-54 (1985)
(upholding the constitutionality of the Habitual Felon Act); State
v. Brown, 146 N.C. App. 299, 301, 552 S.E.2d 234, 235 (citing Todd
in upholding the Habitual Felon Act), disc. review denied, 354 N.C.
576, 599 S.E.2d 186 (2001), cert. denied, 122 S. Ct. 2305, 152 L.
Ed. 2d 1061 (2002); see also State v. Wilson, 139 N.C. App. 544,
550, 533 S.E.2d 865, 870 (“[T]he procedures set forth in the
Habitual Felon Act comport with a criminal defendant's federal and
state constitutional guarantees.”), disc. review denied, 353 N.C.
279, 546 S.E.2d 394 (2000), cert. denied, __ S. Ct. __ (Oct. 5,
2002); State v. Parks, 146 N.C. App. 568, 572, 553 S.E.2d 695, 697
(2001) (“North Carolina appellate courts have repeatedly upheld the
use of [the Habitual Felon Act and Structured Sentencing Act]
together, as long as different prior convictions justify each.”),
disc. review denied, 355 N.C. 220, 560 S.E.2d 355 (2002), cert.
denied, __ S. Ct. __ (Oct. 7, 2002). These assignments of error
are, therefore, overruled.
In sum, defendant's ineffective assistance of counsel claim is
dismissed without prejudice to defendant's right to file a motion
for appropriate relief in the superior court. We find no merit to
his other arguments.
No error.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***