Opinion
No. COA03-58
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgments entered 29 July 2002 by Judge Jesse B. Caldwell, III, in Gaston County Superior Court. Heard in the Court of Appeals 6 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Nancy R. Gaines, for defendant-appellant.
Gaston County Nos. 02 CRS 56892, 02 CRS 56894.
On 29 July 2002, defendant Charles David Bumgardner pled guilty to the charges of delivery of a controlled substance to a person under 16 years of age by a person 18 or older and indecent liberties with a child. Under the terms of the plea agreement, defendant would receive a sentence of 61 to 83 months imprisonment for the drug offense and a suspended sentence of 19 to 23 months for the indecent liberties offense with defendant being placed on supervised probation for 36 months following the end of his active sentence. In exchange for the plea, the State voluntarily dismissed other pending charges.
Prior to accepting defendant's plea, the trial court examined defendant personally pursuant to N.C. Gen. Stat. § 15A-1022(a) (2001). During the examination, defendant stated that his attorney had explained the charges to him; that he understood the nature of the charges against him; and that he was satisfied with his attorney's legal services. The trial court asked defendant if he was pleading guilty to taking indecent liberties with a child, a Class F felony punishable by up to 59 months imprisonment, and delivery of a controlled substance to a minor, a Class D felony punishable by up to 229 months imprisonment. Defendant responded, "Yes, sir." Defendant further stated that he was, in fact, guilty and that he was pleading guilty pursuant to a plea agreement.
Defendant then stipulated to the following factual basis for his plea. On the afternoon of 4 April 2002, the minor victim and other minor teenagers, including defendant's son, were at defendant's residence smoking marijuana. During this time, defendant came in, bought an Ecstacy pill from one of the minors, and gave it to the minor victim, telling her that it would have the same effect as marijuana. After the minor victim took the pill, defendant and some of the teenagers touched her breasts and stuck their hands down inside her pants.
In accordance with the plea agreement, the trial court sentenced defendant to a minimum of 61 months and a maximum of 83 months imprisonment for delivery of a controlled substance to a minor. The trial court also sentenced defendant to a minimum of 19 months and a maximum of 23 months imprisonment for taking indecent liberties with a child, suspended the sentence, and placed defendant on supervised probation for 36 months following his active sentence. Defendant appeals.
Defendant's sole argument on appeal is that he received ineffective assistance of counsel. He claims that his appointed trial counsel did not spend an adequate amount of time preparing his case and, as a result, did not provide him with sufficient information to make an informed decision to plead guilty.
Defendant asserts in his brief that his counsel was appointed only 23 days before his plea was entered and that his attorney spent only 4 1/2 hours working on his case. The record, however, contains nothing to support these factual assertions.
The preferred method for raising a claim of ineffective assistance of counsel is by a motion for appropriate relief. State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). An ineffective assistance of counsel claim may be decided on direct appeal only "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).
After a careful review of the record and the briefs of the parties, we do not believe that defendant's claim of ineffective assistance of counsel can be determined without further development of the record. We, therefore, decline to review this assignment of error on direct appeal. Accordingly, defendant's appeal is dismissed without prejudice to defendant's filing a motion for appropriate relief with the superior court. Id. at 167, 557 S.E.2d at 525.
Dismissed.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).