An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-687

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                Nos. 01CRS029190, 056835
STEVEN LEONARD SAMUELS        

    Appeal by defendant from judgment entered 7 March 2002 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 3 March 2003.

    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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