                                NO. COA13-1323

                  NORTH CAROLINA COURT OF APPEALS

                          Filed: 17 June 2014


STATE OF NORTH CAROLINA

    v.                                     Beaufort County
                                           Nos. 11 CRS 52170-71
GREGVON SATTERTHWAITE


    Appeal by defendant from judgment entered 25 June 2013 by

Judge W. Russell Duke, Jr. in Beaufort County Superior Court.

Heard in the Court of Appeals 22 April 2014.


    Roy Cooper, Attorney General, by E. Burke Haywood, Special
    Deputy Attorney General, for the State.

    Leslie C. Rawls for defendant-appellant.


    STEELMAN, Judge.


    Where the indictment alleged possession of plastic baggies

as drug paraphernalia, and the State did not present evidence of

plastic baggies, the trial court erred in denying defendant’s

motion   to   dismiss     the     charge     of   possession      of   drug

paraphernalia.    Where    the    cold   record   does   not   demonstrate

whether defendant received ineffective assistance of counsel,

this argument is dismissed without prejudice.
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                    I. Factual and Procedural Background

       In   2011,    Brandi      Lynn    Cooke      (Cooke)    was     charged       with

trafficking in controlled substances.                     In order to seek more

favorable treatment for her charges, Cooke began working with

Beaufort County Sheriff’s Lieutenant Josh Shiflett (Shiflett) to

investigate local drug dealers.                  Cooke informed Shiflett that

one of her suppliers was Gregvon Satterthwaite (defendant), also

known as “Popcorn.”

       On 25 May 2011, Cooke called defendant to set up a drug

buy.    Afterwards, Cooke contacted Shiflett and set up the deal

as an undercover hydrocodone purchase.                   In advance of the deal,

police searched Cooke and her car, and provided her with audio

and    video   recording        equipment,     as    well     as     $220    from     the

department’s special funds for controlled substance purchases.

       While   Cooke      was    under     police        surveillance,       defendant

approached Cooke’s vehicle and got into the front seat.                             Cooke

gave defendant $200, and defendant gave Cooke a bottle of pills.

Defendant then left.            Cooke gave the pills to police.                     There

were sixty pills of one variety, and ten of another; Shiflett

tentatively identified the pills as hydrocodone.                      The pills were

then   sent    to   the   SBI    for    testing     to   confirm     their    chemical

composition.
                                                -3-
      Lauren     Wiley          (Wiley),    a    forensic          chemist    for    the    SBI,

testified as to the analyses performed on the pills.                                The sixty

white    pills       weighed        38.2     grams,          and     each     contained      500

milligrams      of       acetaminophen       and      5     milligrams       of   hydrocodone.

The ten yellow pills weighed 4.2 grams, and each contained 325

milligrams of acetaminophen and 10 milligrams of hydrocodone.

      Defendant           was     indicted       for        trafficking       in    opium     by

possession, trafficking in opium by transportation, trafficking

in    opium    by    sale,        trafficking          in     opium    by     delivery,      and

possession of drug paraphernalia.                         On 25 June 2013, the jury

found defendant guilty of all charges.                           The trial court arrested

judgment on the conviction for trafficking in opium by delivery.

The   remaining          charges     were       consolidated,          and    defendant      was

sentenced to an active term of imprisonment of 225-279 months.

The trial court also imposed a $500,000.00 fine.

      Defendant appeals.

                          II. Denial of Motion to Dismiss

      In his first argument, defendant contends that the trial

court   erred       in    denying     his    motion         to     dismiss    the   charge    of

possession of drug paraphernalia.                     We agree.
                                      -4-
                            A. Standard of Review

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

                                B. Analysis

    The indictment that charged defendant with possession of

drug paraphernalia stated that he possessed plastic baggies used

to package and repackage pills.             At trial, however, the State

did not present any evidence of baggies.                Instead, the evidence

showed that defendant delivered the pills to Cooke in a bottle.

Defendant   contends   that     the   absence      of   evidence    of   plastic

baggies   required    the    trial    court   to   dismiss    the   charge      of

possession of drug paraphernalia, and that it was error to fail

to do so.

    N.C. Gen. Stat. § 90-113.22 makes it “unlawful for any

person to knowingly use, or to possess with intent to use, drug

paraphernalia to . . . package, repackage, store, contain, or

conceal a controlled substance . . .”               N.C. Gen. Stat. § 90-

113.22(a)   (2013).     “Drug     paraphernalia”        is   defined     as   “all

equipment, products and materials of any kind that are used to

facilitate, or intended or designed to facilitate, violations of
                                      -5-
the   Controlled      Substances    Act[.]”      N.C.   Gen.    Stat.   §   90-

113.21(a) (2013).       According to this definition:

           “Drug paraphernalia” includes,           but   is    not
           limited to, the following:

           . . .

           (9) Capsules, balloons, envelopes and other
           containers for packaging small quantities of
           controlled substances;

           (10)   Containers  and   other  objects   for
           storing or concealing controlled substances;

N.C. Gen. Stat. § 90-113.21(a).          Defendant contends that because

the indictment was specifically based upon “baggies,” the State

was   required   to    present     substantial   evidence      that   defendant

possessed plastic baggies as drug paraphernalia.

      This Court faced a similar issue in the case of State v.

Moore.    In that case:

           According    to     Defendant's    indictment,
           Defendant     allegedly     possessed    “drug
           paraphernalia, to wit: a can designed as a
           smoking   device.”   However,   none  of   the
           evidence elicited at trial related to a can;
           rather, the evidence described crack cocaine
           in a folded brown paper bag with a rubber
           band around it.

State v. Moore, 162 N.C. App. 268, 273, 592 S.E.2d 562, 565

(2004).    Defendant’s motion to dismiss the charge was denied,

and the trial court granted the State’s motion to amend the
                                     -6-
indictment, replacing the reference to the can with reference to

the folded brown paper bag.      We held that:

           As common household items and substances may
           be classified as drug paraphernalia when
           considered in the light of other evidence,
           in order to [m]ount a defense to the charge
           of possession of drug paraphernalia, a
           defendant must be apprised of the item or
           substance the State categorizes as drug
           paraphernalia. Accordingly, we conclude the
           amendment to the indictment constituted a
           substantial alteration of the charge set
           forth in the indictment. Moreover, as no
           evidence of “a can designed as a smoking
           device” was presented, we conclude the trial
           court erroneously denied Defendant's motion
           to dismiss.

Moore, 162 N.C. App. at 274, 592 S.E.2d at 566.

       In the instant case, as in Moore, defendant was charged

with   possession   of   drug   paraphernalia,     specifically    plastic

baggies.    The only evidence of paraphernalia at trial was of

bottles.    We hold that the specific items alleged to be drug

paraphernalia must be enumerated in the indictment, and that

evidence of such items must be presented at trial.           Because the

State failed to present such evidence, the trial court erred in

denying defendant’s motion to dismiss the charge of possession

of drug paraphernalia.

       Since the remaining charges in the consolidated judgments

require    the   imposition     of   a     mandatory   sentence,   it   is
                                      -7-
unnecessary to resentence defendant.           State v. Llamas-Hernandez,

363 N.C. 8, 673 S.E.2d 658 (2009) (adopting dissent from Court

of   Appeals,    189   N.C.   App.    640,   654-55,   659   S.E.2d   79,   88

(2008)).



                 III. Ineffective Assistance of Counsel

      In his second argument, defendant contends that his trial

counsel    was   ineffective.        We   dismiss   this   argument   without

prejudice.

                          A. Standard of Review

            It is well established that ineffective
            assistance of counsel claims “brought on
            direct review will be decided on the merits
            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.”
            Thus, when this Court reviews ineffective
            assistance of counsel claims on direct
            appeal and determines that they have been
            brought prematurely, we dismiss those claims
            without prejudice, allowing defendant to
            bring them pursuant to a subsequent motion
            for appropriate relief in the trial court.

      State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881

(2004) (citations omitted) (quoting State v. Fair, 354 N.C. 131,

166, 557 S.E.2d 500, 524 (2001)), cert. denied, 546 U.S. 830,

163 L. Ed. 2d 80 (2005).
                                       -8-
                                   B. Analysis

       Defendant contends that his trial counsel proceeded under

an inaccurate understanding of the law as to how mixtures of

controlled     substances    are     considered    for    purposes     of   weight

under our drug trafficking statutes.               Defendant contends that,

as a result, his counsel incorrectly advised him concerning a

plea offer.      Defendant contends that he relied upon counsel’s

advice in pleading not guilty.            However, the cold record of the

case    does    not   conclusively        demonstrate      whether      defendant

received   ineffective      assistance       of   counsel.        We   hold     that

addressing such a matter would be premature, and dismiss this

argument   without    prejudice      to   defendant      filing   a    motion    for

appropriate relief in the trial court.

                                IV. Conclusion

       The charge of possession of drug paraphernalia is vacated,

and that issue is remanded to the trial court with instructions

to dismiss that charge.            The balance of the charges are not

challenged     upon   appeal.        Defendant’s      contentions      concerning

ineffective     assistance      of     counsel     are     dismissed        without

prejudice.

       VACATED AND REMANDED IN PART, DISMISSED IN PART.

       Judges HUNTER, Robert C., and BRYANT concur.
