An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-38
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:      2 September 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              No. 12 CRS 214535
SAMUEL GIDEON,
     Defendant.


      Appeal by defendant from judgment entered 15 August 2013 by

Judge Orlando F. Hudson in Wake County Superior Court.                     Heard in

the Court of Appeals 22 May 2014.


      Roy Cooper, Attorney General, by Robert M. Curran, Special
      Deputy Attorney General, for the State.

      Richard J. Costanza for defendant-appellant.


      DAVIS, Judge.


      Samuel Gideon (“Defendant”) appeals from his conviction for

voluntary     manslaughter.         On    appeal,    he   argues    that    (1)   he

received ineffective assistance of counsel at trial; and (2) the

trial court erred by allowing the introduction of inadmissible

evidence    during     the   sentencing      phase   of    his   trial.       After

careful review, we dismiss Defendant’s ineffective assistance of
                                          -2-
counsel claim without prejudice and find no error in Defendant’s

trial.

                                Factual Background

      The State presented evidence at trial tending to establish

the   following     facts:       During    the    early     morning    hours     of   15

January     2012,   two   men,    Ronald    Gaither       and    Terrell    Hilliard,

stole a GMC Envoy in Raleigh, North Carolina.                        They drove the

stolen Envoy to an apartment building, broke into an apartment,

and stole various video games and items of computer equipment.

They then sped away, heading towards New Hope Road.

      Abraham Melendez (“Abraham”); his brother, Samuel Melendez

(“Samuel”); his cousin, Elezar Herrera (“Mr. Herrera”); and a

woman named Alison Sanchez were traveling together down New Hope

Road in a Hyundai Sonata            when they encountered the speeding

Envoy attempting to make a turn onto New Hope Road.                        The Envoy

failed to make the turn and crashed onto the side of the road.

After witnessing the accident, Abraham turned his vehicle around

for the purpose of providing assistance to the occupants of the

crashed vehicle.

      At    the     accident     scene,     Abraham       encountered      two    men,

Defendant and Christopher Rochelle (“Mr. Rochelle”).                        Defendant

and   Mr.    Rochelle     had    recently        returned       to   Mr.   Rochelle’s
                                       -3-
residence after playing pool.           Shortly thereafter, they heard a

loud noise that sounded like a “mixture of glass and wood and

concrete all together breaking.”             Mr. Rochelle went outside to

investigate and saw a man run around a sport utility vehicle

(later determined to be the Envoy), jump into the vehicle, and

“peel[] out.”        Mr. Rochelle — believing that his car had been

burglarized    —   picked   up   a    wrench   from    his   front   porch   and

proceeded to chase the SUV on foot in an attempt to ascertain

its license plate number.            Defendant followed behind on foot.

As they approached the corner of Wallingford Drive and New Hope

Road, they saw the crashed SUV on the side of the road.

       At that point, Abraham’s Sonata pulled up to the scene of

the accident, and all four of its occupants exited the vehicle.

Mr. Rochelle approached the Sonata, holding the wrench in his

hand.    He then began yelling: “[A]re you with them, are you with

them[?]”      Mr. Rochelle approached Mr. Herrera and raised the

wrench at which point Mr. Herrera punched Mr. Rochelle in the

face, causing him to fall to the ground.                   Abraham and Samuel

then    restrained    Mr.   Herrera    in    order    to   prevent   a   further

confrontation, and Abraham retrieved his cell phone from the car

so he could call 911.
                                          -4-
      While Samuel was still holding Mr. Herrera’s arm, Defendant

came from behind Mr. Rochelle and stabbed Mr. Herrera in the

chest.     Defendant then fled the scene while Abraham and Samuel

helped     Mr.    Herrera    into   the   back       seat      of    the    Sonata.    Mr.

Herrera was transported to a nearby hospital, where he died as a

result of the stab wound.

      On 29 October 2012, Defendant was indicted by a grand jury

in Wake County for the murder of Mr. Herrera.                              The State gave

notice     that    it   would   proceed      on      a   charge       of    second-degree

murder.     The matter came on for a jury trial on 5 August 2013 in

Wake County Superior Court.

      At    trial,      Defendant     testified          on    his    own     behalf   and

presented the following account of the events leading up to the

stabbing: When the Sonata stopped at the scene of the accident,

the   four       occupants    “tore    out      of       the    truck”       and   started

immediately yelling at Mr. Rochelle.                     Mr. Herrera rushed toward

Mr. Rochelle and hit him in the face.                           Mr. Herrera and his

friends then punched and kicked Mr. Rochelle until he fell to

the ground in the fetal position.                    At that point, Mr. Herrera

turned to Defendant and said: “Oh, you think you’re the big guy

. . . [y]ou’re going to get it next.                     You’re going down.”           Mr.

Herrera then “struck [Defendant] a couple of times,” causing
                                      -5-
Defendant to “fear for [his] life.”                In an attempt to stop Mr.

Herrera,    Defendant    retrieved      a    pocket     knife   from     his    right

pocket.     He then used the pocket knife to fend off Mr. Herrera

and unintentionally stabbed him.

     On 15 August 2013, the jury returned a                     verdict finding

Defendant guilty of voluntary manslaughter.                 At sentencing, the

jury found as an aggravating factor that Defendant had committed

a probation violation during the ten-year period prior to the

commission    of   the   15   January       2012   offense.          Defendant    was

sentenced    to    an    aggravated         term   of    105    to     138     months

imprisonment.      Defendant gave notice of appeal in open court.

                                 Analysis

I.   Ineffective Assistance of Counsel

     During the direct examination of Defendant at trial, his

trial counsel brought up the fact that Defendant had invoked his

right to counsel during questioning by Detective Amanda Salmon

(“Detective Salmon”) following his arrest.

            Q. Do you remember talking                  to Detective
            Salmon   briefly after you                   were  first
            arrested?

            A. That's correct.

            Q. And you waived your right to counsel for
            a short time and answered some questions
            that she put to you, then later said you
            wanted a lawyer before you said any more, do
                                             -6-
              you remember that?

              A. I do.

During     the    remainder          of    his     testimony,     including    cross-

examination, additional references were made to the fact that

Defendant       had     asserted      his     right    to   counsel    while    being

questioned.

      On appeal, Defendant contends that he received ineffective

assistance of counsel due to his trial counsel's reference to

his invocation of his right to counsel and failure to object to

the     State's       subsequent           questioning      on    cross-examination

regarding this subject.

      To      prevail    on     a    claim    for     ineffective     assistance   of

counsel,

              a defendant must first show that his
              counsel's performance was deficient and then
              that    counsel's      deficient    performance
              prejudiced      his      defense.     Deficient
              performance may be established by showing
              that counsel's representation fell below an
              objective    standard     of    reasonableness.
              Generally,    to    establish    prejudice,    a
              defendant   must    show   that   there   is   a
              reasonable    probability     that,   but    for
              counsel's unprofessional errors, the result
              of the proceeding would have been different.

State    v.    Rodelo,    ___       N.C.    App.___,___,    752   S.E.2d   766,    773

(2014) (internal citations and quotation marks omitted).
                                                      -7-
       “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).                   This is so because this Court is “without

the    benefit       of    information                provided     by    defendant     to   trial

counsel,       as     well           as     defendant's           thoughts,   concerns,       and

demeanor[,] that could be provided in a full evidentiary hearing

on a motion for appropriate relief.”                              Id. at 554–55, 557 S.E.2d

at 547 (citation and quotation marks omitted and alteration in

original).          Ineffective assistance of counsel claims are only

appropriately reviewed on direct appeal “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. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d

850, 881 (2004) (citation and quotation marks omitted), cert.

denied, 546 U.S. 830, 163 L.Ed.2d 80 (2005).

       Here,     it       is     unclear          from      the    present    record     whether

Defendant’s trial counsel elicited testimony about this subject

as part of a trial strategy such as, for example, a desire to

provide     context            for        the    responses        that   Defendant     gave    to
                                       -8-
Detective Salmon before requesting an attorney.                 Accordingly, it

is appropriate to dismiss Defendant's ineffective assistance of

counsel claim without prejudice to his right to reassert it

through    a   motion   for    appropriate     relief.        See   State   v.    al–

Bayyinah, 359 N.C. 741, 752–53, 616 S.E.2d 500, 509–10 (2005)

(dismissing ineffective assistance of counsel claim asserted on

direct     appeal   without     prejudice      because    “[t]rial      counsel's

strategy and the reasons therefor [were] not readily apparent

from the record, and more information [needed to] be developed

to determine if defendant's claim” had merit), cert. denied, 547

U.S. 1076, 164 L.Ed.2d 528 (2006).1

II.   Sentencing Phase

      At the sentencing phase of Defendant’s trial, the State

presented      evidence      concerning      the   aggravating       factor      that

Defendant had been found in willful violation of his probation

within    10   years    of    the   commission     of   the    15   January      2012

offense.       The State called as a witness Margaret Brewer (“Ms.

1
  As an alternative to his claim for ineffective assistance of
counsel, Defendant asks this Court to review the trial court’s
admission of this testimony for plain error.     However, it is
well established that the plain error doctrine does not apply to
the admission of evidence introduced or invited by the
defendant.   See State v. Barber, 147 N.C. App. 69, 74, 554
S.E.2d 413, 416 (2001) (holding that “a defendant who invites
error has waived his right to all appellate review concerning
the invited error, including plain error review”), disc. review
denied, 355 N.C. 216, 560 S.E.2d 141 (2002).
                                        -9-
Brewer”),      the    judicial    district           manager     for   Wake    County

Probation   and      Parole.     The    State        introduced     three   documents

during Ms. Brewer’s testimony:               (1) a 14 February 2001 judgment

entered   in    file    number   00     CRS     62383        placing   Defendant    on

supervised probation for assault on a female and resisting a

public officer; (2) a probation violation report executed by

probation officer Margaret Price in December 2001, alleging that

Defendant      had    violated    the        terms     and     conditions     of   his

probation; and (3) a revocation of probation form indicating

that    Defendant’s     sentence       was     activated       by   Judge     Stafford

Bullock in Wake County Superior Court on 18 March 2002.

       During Ms. Brewer’s direct examination, she was allowed to

give the following testimony:

            Q.   Ms. Brewer, using – and you weren’t
            personally   involved    in    Mr. Gideon’s
            probation case; is that right?

            A.   Not at the time of the revocation.  I
            am familiar with the offender when he was
            under supervision under Erica Ward back in
            2000.

            Q.   That      was     more        of      a     supervisory
            capacity?

            A.   It was, actually I was a co-worker of
            Ms. Ward’s at that time.

            Q.   Using the documents to explain what
            happened in this particular case, could you
            tell us when was Mr. Gideon placed on
                         -10-
probation    in   this    particular   case,   what
date?

A.   February 14, 2001.

Q.   Okay.   And  on   what   date  was   he
eventually revoked on his probation, I think
that’s going to be on State’s Exhibit Number
24.

A.   March 18, 2002.

Q.   And how long – was looking at the
judgment, that’s State’s Exhibit 22, how
long was he supposed to be on probation if
he had completed it?

A.   24 months of supervised probation.

Q.   Okay. The probation revocation form
that’s State’s Exhibit Number 24 has a box
marked about the Defendant electing to serve
the sentence, do you see that?

A.   I do.

Q.   Does that appear to be correct to you?

A.   No.

Q.   Could you explain why that is?

A.   Offenses that were committed prior to
January 1997, an offender could elect to
serve their sentence.    So, in other words,
they could decide at any time that they no
longer   wanted  to   be   under  supervised
probation and they could petition and go to
court and get their suspended sentence
activated and go to jail or prison.      Any
offense after January 1st, 1997, you could
no longer elect to serve, that you actually
had to be found in violation and either
revoked or terminated.      And so in this
                       -11-
particular case, based on the offense date,
it would not be something that could have
been ordered at that time for them to elect
to serve.

Q.   Okay.   And were you working with the
probation department during this time when
that change in the law was made?

A.   Yes.

Q.   Is this something that was commonly
occurring on these revocation forms?

A.   Yes.

Q.   Basically, if the offender was         not
electing to serve, but you saw this         box
checked, what was more than likely          the
actual procedure that happened?

Mr. Manning:    I object to that.

The Court:     Overruled.

The Witness:   That    the    offender      was
revoked, and their time was activated.

Q.   But would they do that –

Mr. Manning:      Motion to strike the answer.

The Court:        Motion denied.

Mr. Manning:   This is triple hearsay        on
this, Your Honor, from this witness.

The Court:        Motion denied.

Q.   The – what is the procedure, what is
done if an offender comes into court and
actually admits the violation?

Mr. Manning:      Objection.
                                     -12-


            The Court:       Overruled.

            The Witness:   If they admit the violation,
            some type of modification or termination or
            revocation is then brought forth.

            Mr. Manning:     Motion to strike the answer.

            The Court:       Motion denied.

            Q.   Is this same form that used [sic] in
            State’s Exhibit Number 24, is that [the]
            same form that would be used in that
            circumstance  if  someone  admitted  their
            violation?

            Mr. Manning:     Objection.

            The Court:       Overruled.

            The Witness:    If   the      Court    revoked   their
            probation, yes.

            Mr. Manning:     Motion to strike the answer.

            The Court:       Denied.

            Mr. Saacks:    Thank you, ma’am.             I   don’t
            think I have anything further.

    Defendant contends that the trial court erred during the

sentencing phase of his trial by allowing a “former probation

officer [Ms. Brewer] to offer testimony which contradicted the

court   record   in   an   attempt   to     show   [Defendant]    violated   a

condition of his probation.”         Defendant argues that Ms. Brewer’s

testimony    during    the   sentencing       hearing    was     hearsay   and

constituted an improper lay opinion since Ms. Brewer was not
                                          -13-
Defendant’s       probation      officer     and   “did     not     have     personal

knowledge      of     the    facts   or     circumstances         surrounding     the

activation of his suspended sentence.”

    However, “[p]er statute, the Rules of Evidence do not apply

at sentencing hearings.”             State v. Sings, 182 N.C. App. 162,

164, 641 S.E.2d 370, 371,             appeal dismissed and disc. review

denied, 361 N.C. 574, 651 S.E.2d 558 (2007).                      The “trial court

has discretion to admit any evidence relevant to sentencing.”

State v. Carroll, 356 N.C. 526, 547, 573 S.E.2d 899, 913 (2002),

cert. denied, 539 U.S. 949, 156 L.Ed.2d 640 (2003).                       Our Supreme

Court has recently reaffirmed this principle, holding that “our

Rules of Evidence, other than those concerning privileges, do

not apply in proceedings for sentencing, or granting or revoking

probation.”         State v. Murchison, ___ N.C. ___, ___, 758 S.E.2d

356, 358 (2014) (citation and quotation marks omitted).

    In reaching its holding in Murchison, our Supreme Court

found instructive its prior decision in Carroll.                      Id. at ___,

758 S.E.2d at 358.           In Carroll, the defendant was found guilty

of first-degree murder.              During the sentencing phase, in               an

effort    to      prove     aggravating     factors,      the     State     presented

testimony from two witnesses:              (1) a deputy clerk in Cumberland

County;     and     (2)     an   expert    in    fingerprint       identification.
                                            -14-
Carroll, 356 N.C. at 545-46, 573 S.E.2d at 912.                         These witnesses

testified that a judgment from Florida showed the defendant had

a   prior     violent    felony   conviction         and    that    the      fingerprints

contained       in    the    Florida     file       matched       the       copy   of    the

defendant’s        fingerprints       contained      in     the    Cumberland         County

file.    Id.

       On     appeal,    the    defendant’s         counsel       argued       that     this

testimony was hearsay and that the court had erred by allowing

the jury to consider and find an aggravating factor that was

based solely on inadmissible hearsay.                 Id. at 545, 573 S.E.2d at

912.        Our Supreme Court concluded that the “trial court has

discretion to admit any evidence relevant to sentencing” and

that the hearsay evidence was “reliable evidence relevant to the

State’s duty to prove its aggravating circumstances.”                              Id. at

547, 573 S.E.2d at 913; see also Sings, 182 N.C. App. at 164,

641 S.E.2d at 371 (upholding trial court’s admission of hearsay

offered       to     prove   existence        of    aggravating         factor        during

defendant’s sentencing).

       Here, in an effort to prove the existence of an aggravating

factor, the State offered testimony from Ms. Brewer to establish

both that Defendant’s sentence had been activated on 18 March

2002    and    that    the   repeal    of    N.C.    Gen.    Stat.      §    15A–1341(c),
                                              -15-
effective 1 January 1997, eliminated a defendant's ability to

elect   to    serve       a   prison       sentence    in   lieu     of     completing    his

probation.

      Therefore, even though page one of Defendant’s revocation

of   probation       form       indicated      that     Defendant         had   voluntarily

elected      to     serve       his    sentence       instead       of     completing     his

probation, as Ms. Brewer explained, such a voluntary election by

Defendant     would       not      have    been    available        to    him   under   North

Carolina      law     on      18      March    2002.          Her    testimony      further

established        that       after    1    January     1997,       the    only   way    that

Defendant could have had his sentence activated would have been

if the trial court had found him in violation of the conditions

of his probation and revoked his probation.                               Therefore, we do

not believe the trial court was precluded from allowing Ms.

Brewer’s testimony on this issue.

      Moreover, we note that page two of Defendant’s revocation

of probation form contains a finding that “[D]efendant waived a

violation hearing and admitted that [he] violated each of the

conditions        [of]    [D]efendant’s           probation    as    set    forth   below.”

Therefore, this argument is overruled.

                                           Conclusion
                                   -16-
    For   the   reasons   stated    above,   we   (1)   dismiss   without

prejudice Defendant’s ineffective assistance of counsel claim;

and (2) conclude that the trial court did not err in admitting

Ms. Brewer’s testimony.

    DISMISSED IN PART; NO ERROR IN PART.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).
