STATE OF NORTH CAROLINA
v. Stanly County
Nos. 01 CRS 50013
JONATHAN ROBERT LITTLE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Diane W. Stevens, for the State.
Joal H. Broun, for defendant-appellant.
HUDSON, Judge.
On 17 January 2001, defendant pled guilty pursuant to a plea
agreement to second degree burglary and assault with a deadly
weapon. Defendant was sentenced to a term of twenty-five to thirty
months imprisonment on the burglary charge, with the sentence
suspended and defendant was placed on supervised probation for
thirty-six months. As a term of his probation, defendant was
ordered to pay restitution, attorney's fees, a community service
fee and court costs.
On 6 September 2001, a probation violation report was filed
alleging that defendant had violated his probation for the burglary
charge. Specifically, it was alleged that defendant had violatedcurfew twenty times, and was in arrears on the monetary conditions
of his probation. Additionally, it was alleged that defendant had
violated the regular term of his probation that he commit no
criminal offense, having pled guilty to the offense of resisting a
public officer.
On 23 October 2001, a probation violation hearing was held in
the Superior Court in Stanly County . Defendant admitted violating
his probation and did not offer any excuse for the violation. The
trial court found that defendant willfully violated the terms of
his probation, revoked his probation and activated his suspended
sentences. Defendant appeals.
Defendant's sole argument on appeal is that he received
ineffective assistance of counsel. Defendant argues that counsel
failed to offer any evidence in mitigation or of a lawful excuse,
nor did he advocate leniency. Defendant notes that counsel
indicated that defendant had physical and mental problems, but
presented no evidence of these problems that could have provided a
basis for the court to exercise its discretion not to revoke his
probation. Moreover, counsel argued that defendant could not
succeed on probation. Defendant contends that his counsel's
performance left him in a worse position than he would have been
had he proceeded pro se. Accordingly, defendant argues that
counsel's performance was so deficient and unreasonable that he was
denied his right to effective representation.
We note that the preferred method for raising a claim of
ineffective assistance of counsel is by a motion for appropriaterelief. However, a defendant's ineffective assistance of counsel
claim “brought on direct review will be decided on the merits when
the cold record reveals that no further investigation is required,
i.e., claims that may be developed and argued without such
ancillary procedures as the appointment of investigators or an
evidentiary hearing.” State v. Fair, 354 N.C. 131, 166,557 S.E.2d
500, 524 (2001). A careful review of the record, briefs and
contentions of the parties in this case does not clearly show us
that defendant's claim of ineffective assistance of counsel can be
determined without further development of the record, or that it is
proper to address it at this time. Thus, we dismiss this appeal
without prejudice to defendant's right to further develop the
record on these issues by filing a motion for appropriate relief in
superior court.
Appeal dismissed without prejudice to defendant's right to
file a motion for appropriate relief in superior court.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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