State v Clark, (02-1699) 08/19/2003

Appeal by defendant from judgments entered 8 August 2002 by Judge Ronald E. Spivey in Superior Court, Forsyth County. Heard in the Court of Appeals 4 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Roberta Ouellette, for the State.

Jon W. Myers for defendant-appellant.

McGEE, Judge.

    Defendant pled guilty to possession of stolen goods, possession with intent to sell marijuana and manufacturing marijuana on 23 October 2001. The trial court sentenced defendant to six to eight months for the controlled substance convictions and a consecutive sentence of ten to twelve months for the possession of stolen goods conviction. The trial court suspended the sentences and placed defendant on supervised probation.
    Defendant's probation officer filed a violation report in June of 2002 alleging that defendant had failed to report as directed five times and had violated his curfew fifteen times. After a probation violation hearing, the trial court found defendantwillfully violated the terms of his probation and revoked defendant's probation. Defendant appeals.
    Defendant first assigns as error the revocation of his probation "when the Trial Court abused its discretion in finding defendant wilfully violated the terms of his probation as alleged in the June 25, 2002, probation violation report." The accompanying argument in defendant's brief, however, concerns the revocation of his probation "where a fundamental misallocation of the power to decide the course of the litigation took place."
    Appellate review is confined to those exceptions which pertain to the argument presented. Crockett v. Savings & Loan Assoc., 289 N.C. 620, 631, 224 S.E.2d 580, 588 (1976). To obtain appellate review, a question raised by an assignment of error must be presented and argued in the brief. In re Appeal from Environmental Management Comm., 80 N.C. App. 1, 18, 341 S.E.2d 588, 598, disc. review denied, 317 N.C. 334, 346 S.E.2d 139 (1986). This Court has stated that when an argument in a brief does not correspond to its assignment of error, the assignment of error should be deemed abandoned. State v. Purdie, 93 N.C. App. 269, 278, 377 S.E.2d 789, 794 (1989); see also N.C.R. App. P. 28. In the case before us, the argument in the brief does not correspond to the assignment of error set forth in the record on appeal, and therefore, is deemed abandoned under N.C.R. App. P. 28 (2001).
    Defendant also argues that his Sixth Amendment right to effective counsel was violated when trial counsel failed to allow defendant to testify and present evidence on the element ofwillfulness. "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 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 claim of ineffective assistance of counsel cannot be determined without further development of the record. Defendant's ineffective assistance of counsel claim is dismissed without prejudice for defendant to file a motion for appropriate relief with the superior court. Id. at 167, 557 S.E.2d at 525.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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