STATE OF NORTH CAROLINA
v. Wake County
Nos. 02CRS060456,
TERRY BELL 02CRS048977-78
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Amy Pickle, for the State.
Michael J. Reece for defendant-appellant.
HUNTER, Judge.
Terry Bell (“defendant”) was charged with assault with a
deadly weapon upon a government official, felonious speeding to
elude arrest, and having attained habitual felon status. A jury
found defendant guilty of assault with a deadly weapon upon a
government official and felonious speeding to elude arrest.
Defendant subsequently admitted his habitual felon status. After
finding two mitigating factors and no aggravating factors, the
trial court sentenced defendant to the mitigated range of 80 months
to 105 months imprisonment. Defendant appeals.
Defendant's counsel has submitted a brief on defendant's
behalf in which he brings forward five assignments of error, butpresents no arguments. Defendant's counsel states that he “is
unable to identify an issue with sufficient merit to support a
meaningful argument for relief on appeal.” By letter dated 11
August 2003, defendant's counsel advised defendant of his right to
file written arguments with this Court and provided him with the
necessary documents to do so. On 18 August 2003, defendant filed
written arguments with this Court.
Counsel has shown to the satisfaction of this Court that he
has complied with the requirements of Anders v. California, 386
U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99,
331 S.E.2d 665 (1985). Pursuant to Anders and Kinch, we must fully
examine the record to determine whether any issues of arguable
merit appear therefrom or whether the appeal is wholly frivolous.
In his pro se arguments, defendant brought forward two issues
on appeal: (1) prosecutorial misuse of peremptory challenges; and
(2) ineffective assistance of trial counsel.
Defendant argues the prosecutor unfairly used his peremptory
challenges in a racially discriminatory manner so as to deny him
his constitutional guarantee of a jury pool drawn from a fair cross
section of the community under the Sixth Amendment. Jury selection
was not made part of the record and, therefore, this Court does not
have enough information upon which to assess defendant's claim.
The appellant has the burden of providing a record which allows the
appellate courts to properly review the assignment of error. State
v. Shelman, ___ N.C. App. ___, ___, 584 S.E.2d 88, 95-96 (2003).
Because we are unable to determine from the record before uswhether the State's use of its peremptory challenges was systematic
exclusion in the jury selection, this assignment of error is
overruled.
Defendant also contends he received ineffective assistance of
trial counsel. The “accepted practice” is to raise claims of
ineffective assistance of counsel in post-conviction proceedings,
rather than on direct appeal. State v. Dockery, 78 N.C. App. 190,
192, 336 S.E.2d 719, 721 (1985). As defendant's argument
“concern[s] potential questions of trial strategy and counsel's
impressions, an evidentiary hearing available through a motion for
appropriate relief is the [best mechanism to examine and] determine
these issues.” State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d
544, 548 (2001). Accordingly, we also dismiss this assignment of
error without prejudice to defendant's right to file a motion for
appropriate relief in the superior court.
Finally, we note that the lead file number on the judgment and
commitment should reflect the file number of one of the two
predicate offenses and not the habitual felon indictment number.
No error in the trial.
Remanded to the trial court for the following correction to
the written judgment and commitment entered 9 January 2003: The
lead file number should reflect the file number of one of the two
predicate offenses instead of the habitual felon indictment file
number 02CRS060456.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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