State v Fisher

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA02-141 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2002 STATE OF NORTH CAROLINA v. Forsyth County Nos. 99 CRS 54130 00 CRS 12498 KENNETH LAMONT FISHER, Defendant. Appeal by defendant from judgment entered 17 August 2000 by Judge Richard L. Doughton in Forsyth County Superior Court. Heard in the Court of Appeals 21 October 2002. Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State. Robert T. Newman, Sr., for defendant-appellant. HUDSON, Judge. Defendant was charged with possession of cocaine and having attained the status of habitual felon. The State s evidence tends to show that while responding to a noise complaint on 10 December 1999, Officers C.K. Redmon and Daniel Russell of the Winston-Salem Police Department observed defendant and another man fighting in the street. The approached the men. handcuffed them. officers stopped their police cruiser and Officer Redmon separated the two men and He subsequently frisked defendant and found a small glass object, which [he] recognized to be a crack pipe in -2defendant s defendant sock. had been Officers Redmon assaulting and the Russell other man. learned Both that officers accompanied defendant to the hospital for treatment of a cut received during the altercation with the other man, whereupon they observed a plastic bag fall from defendant s pants leg. The bag contained a green leafy vegetable matter, which Officer Redmon recognized to be marijuana. Defendant thereafter refused to be treated by any doctors and was transported by Officers Redmon and Russell to the downtown detention facility. An inventory of the contents a of defendant s pockets yielded substance later identified as crack cocaine. The jury found defendant guilty of possession of cocaine. After the Clerk of Court testified as to defendant s three previous felony convictions, the jury also found that defendant had attained the status of habitual felon. The trial court sentenced defendant to 105 to 135 months imprisonment. Defendant appeals. By his first five assignments of error, defendant argues that he received ineffective assistance of counsel and therefore, was entitled to the dismissal of all charges against him. outset, however, prematurely claim. we asserted note his that defendant ineffective appears assistance of At the to have counsel State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544, 548 (2001) (quoting State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002). The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than -3on direct appeal. State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). As defendant s argument concerns 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. See Stroud, 147 N.C. App. at 556, 557 S.E.2d at 548. we dismiss these assignments of error without Accordingly, prejudice to defendant s right to file a motion for appropriate relief in the superior court. See id.; see also State v. Ware, 125 N.C. App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing the defendant s appeal where the issues could not be determined from the record on appeal and noting that to properly advance these arguments, defendant must move for appropriate relief pursuant to G.S. 15A1415[] ). We move then to defendant s remaining assignments of error by which he argues that the North Carolina Habitual Felon Act violates the United States and North Carolina Constitutions. Defendant acknowledges that he has not We disagree. preserved these assignments of error for appellate review in accordance with N.C. R. App. P. 10. He asks that we review these assignments of error, pursuant to our authority under N.C. R. App. P. 2, to prevent manifest injustice. However, even if the Court chose to review these errors, defendant cannot show merit to his position. As conceded by defendant in his brief, many cases have upheld the use of the Habitual Felon [Act]. We conclude that the cases referenced by defendant as authority for his argument are readily -4distinguishable. Moreover, existing precedent shows no constitutional infirmity in this state s Habitual Felon Act. See State v. Todd, 313 N.C. 110, 117-19, 326 S.E.2d 249, 253-54 (1985) (upholding the constitutionality of the Habitual Felon Act); State v. Brown, 146 N.C. App. 299, 301, 552 S.E.2d 234, 235 (citing Todd in upholding the Habitual Felon Act), disc. review denied, 354 N.C. 576, 599 S.E.2d 186 (2001), cert. denied, 122 S. Ct. 2305, 152 L. Ed. 2d 1061 (2002); see also State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 ( [T]he procedures set forth in the Habitual Felon Act comport with a criminal defendant s federal and state constitutional guarantees. ), disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000), cert. denied, __ S. Ct. __ (Oct. 5, 2002); State v. Parks, 146 N.C. App. 568, 572, 553 S.E.2d 695, 697 (2001) ( North Carolina appellate courts have repeatedly upheld the use of [the Habitual Felon Act and Structured Sentencing Act] together, as long as different prior convictions justify each. ), disc. review denied, 355 N.C. 220, 560 S.E.2d 355 (2002), cert. denied, __ S. Ct. __ (Oct. 7, 2002). These assignments of error are, therefore, overruled. In sum, defendant s ineffective assistance of counsel claim is dismissed without prejudice to defendant s right to file a motion for appropriate relief in the superior court. We find no merit to his other arguments. No error. Chief Judge EAGLES and Judge MCCULLOUGH concur. Report per Rule 30(e). -5-

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