STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 01CRS029190, 056835
STEVEN LEONARD SAMUELS
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General William P. Hart and Assistant Attorney
General Hilda Burnett-Baker, for the State.
Peter Wood for defendant-appellant.
HUNTER, Judge.
Steven Leonard Samuels (“defendant”) appeals from a judgment
sentencing him to a term of 93 to 121 months imprisonment.
Defendant was sentenced for manufacturing marijuana, possession of
marijuana, and being an habitual felon. We find no error.
On 27 August 2001, defendant was indicted for being an
habitual felon. On 8 October 2001, defendant was indicted for
possession of marijuana and manufacture of marijuana. The case was
tried at the 4 March 2002 Criminal Session of Forsyth County
Superior Court.
The State presented evidence at trial which tended to show the
following: On 13 July 2001, Officer James Wooten (“OfficerWooten”) of the Winston-Salem Police Department was on patrol when
he was dispatched to an “unknown trouble call” at 2617 Rochester
Street. When he arrived, Officer Wooten found the defendant and
his brother, Ratone Samuels (“Ratone”), standing in the middle of
the street in front of the house arguing. Officer Wooten separated
the two men, and asked Ratone to step back towards his car so he
could speak to him and determine the nature of the argument. After
speaking with Ratone, Ratone led Officer Wooten to the side of the
house and pointed out approximately eight marijuana plants which
had been pulled out of the ground and laid in the yard. Ratone
then led Officer Wooten to the rear of the house to a garden area.
Officer Wooten testified that it had been obvious the area had been
cleared out, tilled, and was well taken care of. Officer Wooten
observed that several plants had been recently pulled from the
ground in this garden area.
Officer Wooten placed the marijuana plants onto the trunk of
his car and then spoke with defendant. Officer Wooten asked
defendant if the marijuana was his, or if he knew anything about
it, and defendant repeatedly stated no. However, after a minute or
two, defendant admitted the marijuana was his. According to
Officer Wooten, defendant's exact words were: “All right, man, I
ain't going to lie about it, they are mine. I put the seeds in the
ground and I have been taking care of them. Shoot, they looking
good, too.”
Defendant first argues that he received ineffective assistance
of counsel because his attorney failed to seek pre-trial discovery. Defendant notes that at trial, while cross-examining Officer
Wooten, Officer Wooten referred to his police report to refresh his
recollection. Counsel asked to see the report, apparently not
having seen the report prior to trial. Thus, defendant asserts
that his counsel inadequately investigated the case and was
unprepared for trial. Furthermore, defendant argues that because
of his counsel's failure to seek discovery, defendant was not fully
informed about the strength of the State's case and could not make
a meaningful decision as to whether to accept a plea bargain that
was offered by the State.
We decline to review this assignment of error because it is
not properly raised at this stage of review. “The accepted
practice is to raise claims of ineffective assistance of counsel in
post-conviction proceedings, rather than direct appeal.” State v.
Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). This
Court will review a defendant's ineffective assistance of counsel
claims “brought on direct review [only] 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). In
this case, defendant's claims of ineffective assistance of counsel
cannot be determined without further development of the record.
There is nothing in the record to indicate what efforts counsel
made to investigate defendant's case prior to trial, or how counsel
advised defendant in regards to the proffered plea bargain. Accordingly, the claim regarding ineffective assistance of counsel
is dismissed without prejudice, and the best course of action is
for defendant to make a motion for appropriate relief and a hearing
held on whether he received effective assistance of counsel. See
id. at 167, 557 S.E.2d at 525.
We next consider whether the trial court committed plain error
in its instructions to the jury. Defendant contends that the trial
court did not instruct the jury on the complete definition of
habitual felon as stated in N.C. Gen. Stat. § 14-7.1 (2001).
After careful review of the record, briefs and contentions of
the parties, we find no error. Initially, we note that because
defendant did not object to the instructions given at trial, “our
review of the record is limited to determining whether the giving
of the instruction in question amounted to plain error.” State v.
Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). “Under a
plain error analysis, defendant is entitled to a new trial only if
the error was so fundamental that, absent the error, the jury
probably would have reached a different result.” Id. Our Supreme
Court has further stated that “even when the 'plain error' rule is
applied, '[i]t is the rare case in which an improper instruction
will justify reversal of a criminal conviction when no objection
has been made in the trial court.'” State v. Odom, 307 N.C. 655,
660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431
U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
In the case sub judice, the trial court instructed the jury on
all the essential elements of habitual felon status. The jury wasinstructed that it must find that defendant had three prior
separate felony convictions, and that each conviction occurred
after the conviction of the one before it. The trial court then
informed the jury of the alleged three prior felony convictions.
Defendant has failed to show any prejudice due to the trial court's
alleged failure to read the entire statute. Defendant does not
dispute any of the prior felonies. Thus, even if the entire
statute had been read to the jury, there was no probability that
there would have been a different result at trial. Accordingly, we
find no plain error.
We next consider whether the trial court committed plain error
when it failed to find any mitigating factors during sentencing.
Defendant contends that the trial court should have found as a
factor in mitigation that he voluntarily acknowledged wrongdoing
prior to his arrest. N.C. Gen. Stat. § 15A-1340.16(e)(11) (2001).
We find no abuse of discretion.
Defendant was properly sentenced in the presumptive range for
a Class C, Level III felony to 93 to 121 months imprisonment. N.C.
Gen. Stat. § 15A-1340.17 (2001). This Court has stated that “the
legislature intended the trial court to take into account factors
in aggravation and mitigation only when deviating from the
presumptive range in sentencing.” State v. Caldwell, 125 N.C. App.
161, 162, 479 S.E.2d 282, 283 (1997) (emphasis in original)
(discussing N.C. Gen. Stat. § 15A-1340.13(e)). “Therefore, a trial
court is not required to justify a decision to sentence a defendant
within the presumptive range by making findings of aggravation andmitigation.” State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d
732, 739 (1999). Accordingly, because the trial court sentenced
defendant within the presumptive range, we conclude there was no
abuse of discretion.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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