An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1029


Filed: 1 June 2004


v .                         Mecklenburg County
                            No. 01 CRS 52330, 52333-35

    Appeal by defendant from judgment entered 17 April 2003 by Judge Charles C. Lamm, Jr., in the Superior Court in Mecklenburg County. Heard in the Court of Appeals 29 April 2004.

    Attorney General Roy Cooper, by Associate Attorney General Iain M. Stauffer, for the State.

    Jeffrey Evan Noecker, for defendant-appellant.

    HUDSON, Judge.

    A jury convicted defendant Derrick Anthony Fitzgerald of trafficking in the drug MDMA (“Ecstacy”) and of misdemeanor possession of marijuana and drug paraphernalia, and knowingly maintaining a dwelling for selling drugs. The court imposed a consolidated sentence of seventy to eighty-four months imprisonment. Defendant appeals, contending his trial counsel's performance was so deficient as to deny him his constitutional right to effective assistance of counsel. Defendant also assigns error to the court's failure to dismiss the charge of maintaining or keeping a place to sell drugs for insufficient evidence, and to clerical errors in the judgment sheet. While we find no error in the denial of defendant's motion to dismiss, we dismiss withoutprejudice defendant's claim of ineffective assistance of counsel, and we remand to the trial court for correction of clerical errors in the judgment.
    The evidence tended to show that police officers Lipscomb and Melton arrived at defendant's apartment without a search warrant to conduct a “knock and talk,” following a tip about marijuana activity. Defendant was not at home, but another man, Robert Pinkney (“Pinkney”), opened the door and allowed the officers into the apartment. Pinkney testified that they told him they were responding to a noise complaint. The officers claimed they said they were investigating a drug tip. Pinkney called defendant at work and defendant arrived at the apartment about thirty minutes later.
    Officer Lipscomb testified that they waited until defendant returned home and then asked his permission to search the apartment, but Officer Melton testified that he asked Pinkney for permission to search and the search began before defendant arrived home. Pinkney testified that the officers told him that they were not going to search the apartment, but only wanted to “look around,” and that he never responded to that request. Before defendant arrived, the officers emerged from defendant's bedroom with a shoe box. Defendant denied that officers asked, or that he gave, permission to search the apartment. Defendant testified that when he arrived at the apartment the officers questioned him and showed him a shoe box that appeared to contain drugs.     The evidence showed that the weight of marijuana in the apartment was either 6.30 or 10.3 grams. The officers also found Ecstacy pills and other drug paraphernalia in the apartment. Additional evidence indicated that the officers discovered a Duke Power bill bearing defendant's name and the apartment address.
    During deliberations, the jury asked the court whether Pinkney had the authority to let the officers into the apartment. Defense counsel suggested that the court inform the jury that Pinkney did have such authority and the State agreed.
    Defendant first argues that he must be granted a new trial because he was not afforded effective assistance of counsel, based on his attorney's failure to file a motion to suppress. We decline to reach the merits of this argument.
    “In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002). A motion for appropriate relief is preferable to direct appeal because the superior court is better able to assess all aspects of the relationship and communications between a defendant and his trial counsel. Id. at 554, 557 S.E.2d at 547. Only in rare cases, where ineffective assistance of counsel is shown on the face of the record, may such a claim by be determined on direct appeal. See State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002) (citing McCarver v. Lee, 221 F.3d 583 (4th Cir. 2000), cert.denied, 531 U.S. 1089, 148 L. Ed. 2d 694 (2001)). In other cases, when a “reviewing court determine[s] the IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's rights to reassert them during a subsequent MAR proceeding.” Fair at 167, 557 S.E.2d at 525.
    The standard of proof for a claim of ineffective assistance of counsel is well-established:
        To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052 (1984). First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.
        There is a presumption that trial counsel acted in the exercise of reasonable professional judgment. In analyzing the reasonableness under the performance prong, the material inquiry is whether the actions were reasonable considering the totality of the circumstances at the time of performance. Reviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel's performance must be highly deferential. Under Strickland, a defendant must also show that he was prejudiced by his trial counsel's deficient performance to such a degree that but for counsel's unprofessional errors, the result of the proceeding would have been different.

State v. Gainey, 355 N.C. 73, 112-13, 558 S.E.2d 463, 488, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002) (internal quotation marks and some citations omitted).    On the record, we cannot evaluate defendant's claim under the Strickland test. Defendant's brief alleges that his trial counsel relied on a specific trial strategy involving drawing attention to famous persons purported to be defendant's associates and that filing a motion to suppress would not have hampered this strategy. However, without testimony from trial counsel about why he did not move to suppress, we are not in a position to evaluate the reasonableness of his performance. As this Court is unable to find ineffective assistance of counsel on the face of the record, we dismiss this assignment of error without prejudice to defendant's right to file a motion for appropriate relief.
    Defendant next argues that the court erred in failing to dismiss the charge of maintaining a dwelling to keep a controlled substance for insufficient evidence. For the reasons discussed below, we disagree.
    In ruling on a motion to dismiss, the court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. State v. Grooms, 353 N.C. 50, 78, 540 S.E.2d 713, 731 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). The State must present substantial evidence of each element of the offense charged. Id. at 78-9, 540 S.E.2d at 731. “[T]he trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State.” State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996). If there is substantial evidence to support a finding that the offense charged has been committed and that thedefendant committed it, the motion to dismiss should be denied. Grooms at 79, 540 S.E.2d at 731. The motion to dismiss must be allowed if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator. Id.
    To support a conviction for maintaining a dwelling to keep a controlled substance, the State must show defendant knowingly kept or maintained the dwelling where a controlled substance was kept or sold. N.C.G.S. 90-108(a)(7) (2002). Whether a person keeps or maintains a dwelling, within the meaning of the statute, “requires the consideration of several factors, none of which are dispositive.” State v. Bowens, 140 N.C. App. 217, 221, 535 S.E.2d 870, 873 (2000). “Those factors include: ownership of the property; occupancy of the property; repairs to the property; payment of taxes; payment of utility expenses; payment of repair expenses; and payment of rent.Id. In Bowens, the evidence showed that “Defendant was seen in and out of the dwelling 8-to-10 times over the course of 2-to-3 days; nobody else was seen entering the premises during this 2-to-3 day period of time; men's clothing was found in one closet in the dwelling; [a witness] testified he believed Defendant lived at [the dwelling], although he offered no basis for that opinion and had not checked to see who the dwelling was rented to or who paid the utilities and telephone bills.” Id. at 221-22, 535 S.E.2d at 873. We held that the evidence presented was not sufficient to support a conviction.    Here, in contrast, the State presented evidence that defendant lived in the apartment with another person and that Officer Melton found a Duke Power bill in defendant's name addressed to him at the apartment. The officers also discovered Ecstacy and marijuana in the apartment. This evidence, taken in the light most favorable to the State, covers two of the Bowen factors, occupancy and payment of utilities, and is enough to support defendant's conviction.
    Defendant next argues that the judgment inaccurately recorded defendant's conviction and sentencing of felony knowingly keeping a building used for the purpose of unlawfully keeping or selling a controlled substance, and the Class 1 misdemeanor of possession of marijuana, and asks that we remand for the superior court to correct the judgment. The verdict in the former charge was actually a Class 1 misdemeanor, and the marijuana possession charge, involving less than one-half ounce, is properly a Class 3 misdemeanor. See N.C.G.S. 108 (b), N.C.G.S. 90-95(d)(4). The State concedes that the judgment sheet contains these clerical errors, which we conclude should be corrected by remand.
    No error in part, dismissed without prejudice in part (as to ineffective assistance), remanded for the correction of clerical errors.
    Judges MCCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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