An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-652


Filed: 18 January 2005


         v.                        Forsyth County
                                Nos. 03CRS016573, 051878

    Appeal by defendant from judgment entered 5 December 2003 by Judge John O. Craig, III, in Forsyth County Superior Court. Heard in the Court of Appeals 27 December 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Thorsen Law Office, by Haakon Thorsen for defendant-appellant.

    HUNTER, Judge.

    On 5 May 2003, Sherman Alphonzo Thompson (“defendant”) was indicted on charges of robbery with a dangerous weapon and being an habitual felon. The case was tried at the 1 December 2003 Criminal Session of Forsyth County Superior Court.
    On 1 December 2003, defendant was convicted of robbery with a dangerous weapon. Following the trial, the State proceeded to try defendant on the habitual felon charge. The State presented as evidence copies of the judgments of defendant's three prior felony convictions. In each conviction, defendant pled guilty. Defendant offered no evidence. In his closing argument, defendant's counsel noted a discrepancy in the judgments. The first judgment listedthe defendant's birth date as 16 June 1974. The second and third judgment listed defendant's birth date as 10 August 1974. Accordingly, defendant's attorney argued that these discrepancies created a reasonable doubt as to the identity of his client as the defendant in the prior convictions.
    Following defense counsel's argument, there was an unreported bench conference. Following this conference, the trial court instructed the jury as follows:
        [T]he lawyers have agreed to stipulate that the plea transcripts which were sworn to by Mr. Thompson and in fact signed by him do indicate a birth date, on each of these felony guilty pleas, of August 16, 1974. And we have those. We did not attach those as part of the records you were shown because they are fairly lengthy and it would take a long time for you to go through them. But the parties have agreed to stipulate that on each of these transcripts of plea his date of birth does show as August 16, 1974.

    Defendant was convicted of robbery with a dangerous weapon and being an habitual felon and sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.
    Defendant first argues that he received ineffective assistance of counsel. Defendant claims that his counsel was ineffective by stipulating to his signature on the plea transcripts of his prior convictions. Defendant further claims that the stipulation was made without first obtaining his consent and was tantamount to an admission of guilt. Defendant additionally argues that counsel was ineffective for abandoning his motion to suppress. Defendant had filed a motion prior to trial asserting that his statement to police was the result of coercion. Finally, defendant argues thatcounsel was ineffective for failing to locate a certain witness who would have testified that there was no robbery.
    We decline to review this assignment of error because it is not properly raised at this stage of review. A defendant's ineffective assistance of counsel claim may be 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), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Here, however, there is an insufficient record on which to review defendant's claims. It is unclear on the record what was discussed at the bench conference, or the reason counsel agreed to the stipulation. Furthermore, there is no explanation in the record as to why counsel abandoned defendant's motion to suppress, or failed to locate his exculpatory witness. Thus, the best course of action is for defendant to make a motion for appropriate relief and a hearing held on whether he received effective assistance of counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“[t]he accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal”). Once there is a record developed, this Court can review it by way of a petition for writ of certiorari.
    Defendant next argues that the trial court erred by allowing the introduction of evidence after closing arguments. Defendantcites the stipulation regarding his date of birth and argues that by permitting the State to present this evidence, the trial court denied him due process. We are not persuaded.
    N.C. Gen. Stat. § 15A-1226(b) (2003) states that “[t]he judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.” “This statute 'is clear authorization for a trial judge, within his discretion, to permit a party to introduce additional evidence at any time prior to the verdict.'” State v. Anthony, 354 N.C. 372, 420, 555 S.E.2d 557, 588 (quoting State v. Quick, 323 N.C. 675, 681, 375 S.E.2d 156, 159 (1989)), cert. denied, 354 N.C. 575, 559 S.E.2d. 184 (2001); see also State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984) (“[t]he manner and presentation of evidence is largely in the discretion of the trial judge and his control of the case will not be disturbed absent a manifest abuse of discretion”). We conclude the trial court acted well within its discretion in permitting the stipulation. Accordingly, the assignment of error is overruled.
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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