               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA18-34

                                Filed: 6 November 2018

Burke County, No. 15 CRS 268

STATE OF NORTH CAROLINA

             v.

CHRISTOPHER ISAIAH ALLEN


      Appeal by defendant from judgment entered 6 January 2017 by Judge Daniel

A. Kuehnert in Burke County Superior Court. Heard in the Court of Appeals 22

August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorneys General Anne
      M. Middleton and Daniel P. O’Brien, for the State.

      Cooley Law Office, by Craig M. Cooley, for defendant-appellant.


      ZACHARY, Judge.


      Christopher Isaiah Allen (“Defendant”) appeals from the trial court’s judgment

entered upon a jury verdict finding him guilty of sexual offense with a child. After

careful review, we conclude that the record is insufficient to enable our review of

Defendant’s claim that he received ineffective assistance of counsel at trial.

Accordingly, we dismiss his appeal without prejudice to his right to pursue this claim

by filing a motion for appropriate relief in the trial court.

                                     Background
                                   STATE V. ALLEN

                                   Opinion of the Court



      On 2 March 2015, the Burke County Grand Jury indicted Defendant for sexual

offense with a child. Defendant’s case came on for trial on 4 January 2017. Two days

later, the jury found Defendant guilty of sexual offense with a child. Defendant gave

oral notice of appeal.

      On appeal, Defendant argues that he received ineffective assistance of counsel

because: (1) Defendant’s trial counsel neither objected to nor moved to edit or redact

portions of prejudicial, inadmissible evidence; and (2) in the alternative, the

cumulative errors made by trial counsel deprived Defendant of a fair trial.

                                     Discussion

      Generally, a claim of ineffective assistance of counsel should be considered

through a motion for appropriate relief before the trial court in post-conviction

proceedings 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). “A motion

for appropriate relief is preferable to direct appeal because in order to defend against

ineffective assistance of counsel allegations, the State must rely on information

provided by [the] defendant to trial counsel” at a full evidentiary hearing on the

merits of the ineffective assistance of counsel claim. Id. at 554, 557 S.E.2d at 547

(quoting State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000)).

      The United States Supreme Court has also advised against reviewing

ineffective assistance of counsel claims on direct appeal:



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                                   STATE V. ALLEN

                                  Opinion of the Court



             When an ineffective-assistance claim is brought on direct
             appeal, appellate counsel and the court must proceed on a
             trial record not developed precisely for the object of
             litigating or preserving the claim and thus often
             incomplete or inadequate for this purpose.             Under
             Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
             104 S. Ct. 2052 (1984), a defendant claiming ineffective
             counsel must show that counsel’s actions were not
             supported by a reasonable strategy and that the error was
             prejudicial. The evidence introduced at trial, however, will
             be devoted to issues of guilt or innocence, and the resulting
             record in many cases will not disclose the facts necessary
             to decide either prong of the Strickland analysis. If the
             alleged error is one of commission, the record may reflect
             the action taken by counsel but not the reasons for it. The
             appellate court may have no way of knowing whether a
             seemingly unusual or misguided action by counsel had a
             sound strategic motive or was taken because the counsel’s
             alternatives were even worse. . . . Without additional
             factual development, moreover, an appellate court may not
             be able to ascertain whether the alleged error was
             prejudicial.

Massaro v. United States, 538 U.S. 500, 504-05, 155 L. Ed. 2d 714, 720-21 (2003)

(emphasis added).

      In this case, our review is limited to the record before us, “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.” Stroud, 147 N.C. App. at 554-55, 557 S.E.2d at 547

(citation, original alteration, and quotation marks omitted).      Particularly where

Defendant’s arguments “concern potential questions of trial strategy and counsel’s

impressions, an evidentiary hearing available through a motion for appropriate relief


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                                     STATE V. ALLEN

                                    Opinion of the Court



is the procedure to conclusively determine these issues.” Id. at 556, 557 S.E.2d at

548. As our Supreme Court has instructed, “should the reviewing court determine

that [ineffective assistance of counsel] claims have been prematurely asserted on

direct appeal, it shall dismiss those claims without prejudice to the defendant’s rights

to reassert them during a subsequent [motion for appropriate relief] proceeding.”

State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S.

1114, 153 L. Ed. 2d 162 (2002).

                                      Conclusion

       Defendant’s ineffective assistance of counsel claim is premature in that the

record before this Court is inadequate and precludes our review of whether

Defendant’s counsel was ineffective and whether counsel’s errors, if any, were

prejudicial. Accordingly, Defendant’s appeal is dismissed without prejudice to his

right to file a motion for appropriate relief in the trial court.

       APPEAL DISMISSED.

       Judges STROUD and MURPHY concur.




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