STATE OF NORTH CAROLINA
v. Gaston County
Nos. 02 CRS 56892
CHARLES DAVID BUMGARDNER, 02 CRS 56894
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Nancy R. Gaines, for defendant-appellant.
GEER, Judge.
On 29 July 2002, defendant Charles David Bumgardner pled
guilty to the charges of delivery of a controlled substance to a
person under 16 years of age by a person 18 or older and indecent
liberties with a child. Under the terms of the plea agreement,
defendant would receive a sentence of 61 to 83 months imprisonment
for the drug offense and a suspended sentence of 19 to 23 months
for the indecent liberties offense with defendant being placed on
supervised probation for 36 months following the end of his active
sentence. In exchange for the plea, the State voluntarily
dismissed other pending charges.
Prior to accepting defendant's plea, the trial court examined
defendant personally pursuant to N.C. Gen. Stat. § 15A-1022(a)(2001). During the examination, defendant stated that his attorney
had explained the charges to him; that he understood the nature of
the charges against him; and that he was satisfied with his
attorney's legal services. The trial court asked defendant if he
was pleading guilty to taking indecent liberties with a child, a
Class F felony punishable by up to 59 months imprisonment, and
delivery of a controlled substance to a minor, a Class D felony
punishable by up to 229 months imprisonment. Defendant responded,
"Yes, sir." Defendant further stated that he was, in fact, guilty
and that he was pleading guilty pursuant to a plea agreement.
Defendant then stipulated to the following factual basis for
his plea. On the afternoon of 4 April 2002, the minor victim and
other minor teenagers, including defendant's son, were at
defendant's residence smoking marijuana. During this time,
defendant came in, bought an Ecstacy pill from one of the minors,
and gave it to the minor victim, telling her that it would have the
same effect as marijuana. After the minor victim took the pill,
defendant and some of the teenagers touched her breasts and stuck
their hands down inside her pants.
In accordance with the plea agreement, the trial court
sentenced defendant to a minimum of 61 months and a maximum of 83
months imprisonment for delivery of a controlled substance to a
minor. The trial court also sentenced defendant to a minimum of 19
months and a maximum of 23 months imprisonment for taking indecent
liberties with a child, suspended the sentence, and placed
defendant on supervised probation for 36 months following hisactive sentence. Defendant appeals.
Defendant's sole argument on appeal is that he received
ineffective assistance of counsel. He claims that his appointed
trial counsel did not spend an adequate amount of time preparing
his case and, as a result, did not provide him with sufficient
information to make an informed decision to plead guilty.
Defendant asserts in his brief that his counsel was appointed
only 23 days before his plea was entered and that his attorney
spent only 4 1/2 hours working on his case. The record, however,
contains nothing to support these factual assertions.
The preferred method for raising a claim of ineffective
assistance of counsel is by a motion for appropriate relief. State
v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). An
ineffective assistance of counsel claim may be decided on direct
appeal 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), cert. denied, 535 U.S. 1114,
153 L. Ed. 2d 162 (2002).
After a careful review of the record and the briefs of the
parties, we do not believe that defendant's claim of ineffective
assistance of counsel can be determined without further development
of the record. We, therefore, decline to review this assignment of
error on direct appeal. Accordingly, defendant's appeal is
dismissed without prejudice to defendant's filing a motion forappropriate relief with the superior court. Id. at 167, 557 S.E.2d
at 525.
Dismissed.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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