An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-259-2


Filed: 18 October 2005

                            Pasquotank County
v.                        No. 03 CRS 50206


    Appeal by defendant from judgment entered 8 September 2003 by Judge Jerry R. Tillett in Pasquotank County Superior Court. Originally heard in the Court of Appeals 18 October 2004. A divided panel of this Court ordered a new sentencing hearing. See State v. James Donnell Alexander, 167 N.C. App. 79, 604 S.E.2d 361 (2004). Now on remand from the Supreme Court of North Carolina, opinion filed 19 August 2005, for consideration of the defendant's remaining assignments of error. State v. Alexander, __ N.C. __, 616 S.E.2d 914 (2005).

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    LEVINSON, Judge.

    Defendant argues first that the trial court erred by accepting a worksheet presented by the prosecuting attorney as an evidentiarybasis for its order of restitution because his trial counsel had not previously seen the worksheet. “In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution.” State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992).
    In the instant case, the trial court asked defense counsel, “Stipulate to the worksheet?” Defense counsel responded, “Yes, sir.” Later, during defendant's sentencing, the following was stated:
        . . . .

        Court: In addition, the Court recommends that he reimburse the State and costs of court- appointed attorney's fees in the amount of $455, $16,822.26 to respective parties in respective amounts shown on the worksheet which has been stipulated and agreed to by the defendant as condition of post-release supervision. Anything further from either party?

        Defense Counsel: Not from the defendant.

        Prosecutor: Not from the State, Your Honor.

Here, as defense counsel specifically and expressly stipulated to the restitution worksheet when it was first offered to the trial court, and later declined to object to the court's invitation to comment on his judgment, defendant has stipulated to the restitution. Accord Alexander, __ N.C. at __, 619 S.E.2d at __. Thus, even assuming, arguendo, that this issue is properly beforeus, defendant's argument must fail. See N.C. Gen. Stat. § 15A- 1444(a2) (2003) (setting forth the scope of appellate review where accused pleads guilty).
    Secondly, defendant contends he was denied effective assistance of counsel because his attorney stipulated to the restitution worksheet without having first had time to review it. Even assuming, arguendo, that this issue is properly before this Court for appellate review, see G.S. § 15A-1444(a2), the record is not sufficiently complete to determine, at a minimum, whether counsel's alleged deficient performance prejudiced the defendant. See State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (ineffective assistance of counsel claims may be decided on direct review only where no further investigation required).
    The certification of this Court heretofore made to the trial tribunal in this matter is reversed and vacated, and this cause remanded to the Superior Court of Pasquotank County for judgment to be entered consistent with the opinion of the Supreme Court in Alexander, __ N.C. __, 619 S.E.2d 914, and this opinion.

    Judges TIMMONS-GOODSON and CALABRIA concur.

    Report per Rule 30(e).

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