An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-249


Filed: 21 January 2003


         v.                        Stanly County
                                Nos. 01 CRS 50013

    Appeal by defendant from judgment entered 23 October 2001 by Judge Mark E. Klass in Stanly County Superior Court. Heard in the Court of Appeals 23 December 2002.

    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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