An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-78
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STEPHEN KYPRIANIDES,
     Plaintiff,

      v.                                      Hertford County
                                              No. 11 CVS 250
PERRY MARTIN,
     Defendant.


      Appeal by plaintiff from order entered 17 September 2013 by

Judge Cy A. Grant, Sr. in Hertford County Superior Court.                     Heard

in the Court of Appeals 20 May 2014.


      Plaintiff-appellant Stephen Kyprianides appearing pro-se.

      No defendant-appellee brief filed.


      ELMORE, Judge.

      Plaintiff timely appeals from an order entered 17 September

2013 denying his Amended Motion to Enforce a Mediated Settlement

Agreement.      After careful consideration, we reverse, in part,

and dismiss, in part.

                                        I. Facts

      On 19 November 2009, Perry Martin (defendant) represented

Stephen Kyprianides (plaintiff) on numerous misdemeanor counts
                                            -2-
of cruelty to animals, N.C. Gen. Stat. § 14-360(a), in Bertie

County District Court.             On that date, plaintiff pled no contest

to   two   of     those     charges,      received       24    months       of    supervised

probation, and appealed the judgment to Bertie County Superior

Court (superior court).              Plaintiff, once again, pled no contest

to   the   two     charges    in   superior        court      and     received      the     same

sentence.

      Thereafter, plaintiff filed a complaint on 21 June 2011 in

Hertford     County       alleging        that    defendant         “intentionally           and

willfully deceived me when he lost prime evidence . . . and made

statements       to   the    court     which      strongly      implied          that   I   was

guilty.”          The parties were required to participate in court-

ordered mediation to resolve their dispute.                           The parties agreed

to a Mediated Settlement Agreement (the agreement), which stated

that defendant “shall pay [p]laintiff the total sum of $1,900

within     five    (5)    days     from    the     date    of       this    Agreement”        in

exchange     for      plaintiff      to    file    a     voluntary         dismissal        with

prejudice of the complaint upon receipt and disbursement of the

settlement proceeds.             Defendant complied with that provision.

However,     the      agreement      also        read,     “[a]fter         completion       of

[p]laintiff’s         probation        [d]efendant            shall        cooperate        with

[p]laintiff in having the criminal convictions arising out [sic]
                                            -3-
the    matter       in     which        [d]efendant      represented     [p]laintiff

expunged[.]”

       Plaintiff         filed     an    “Amended     Motion    to     Enforce      [the

agreement]” on 30 August 2013 on the grounds that defendant

breached the agreement to expunge the convictions.                           Moreover,

plaintiff asked that “the [trial] court issue a mandate ordering

[defendant]        to     comply    with     his    signed     agreement     and,     in

addition” requested that “the [trial] court also order him to

pay . . . $3,000.00” for probation costs.                      After a hearing on

the matter, the trial court entered an order denying plaintiff’s

motion and concluded that 1.) the law of this State does not

allow for the crime of cruelty to animals to be expunged, 2.)

defendant, under existing law, could not perform that provision

of the agreement, and 3.) it had no legal authority to force

defendant     to    pay     plaintiff       a     monetary   award     “in   lieu     of

performing this specific provision[.]”

                                          II. Analysis

a.) Expunction

       Plaintiff argues that the trial court erred in concluding

that   a   conviction        for    the    crime    of   misdemeanor     cruelty      to

animals cannot be expunged under North Carolina law.                     We agree.

       “Conclusions of law are reviewed de novo and are subject to

full review.”            State v. Biber, 365 N.C. 162, 168, 712 S.E.2d
                                         -4-
874, 878 (2011); see also Carolina Power & Light Co. v. City of

Asheville,      358   N.C.      512,   517,    597   S.E.2d   717,   721   (2004)

(“Conclusions of law drawn by the trial court from its findings

of fact are reviewable de novo on appeal.”).

       N.C.    Gen.     Stat.     §    15A-145.5     (2013)   allows    for      the

expunction of “nonviolent misdemeanor” or “nonviolent felony”

convictions without age limitations in narrow circumstances:

              A person may file a petition, in the court
              where   the   person   was   convicted,  for
              expunction of a nonviolent misdemeanor or
              nonviolent   felony   conviction   from  the
              person’s criminal record if the person has
              no other misdemeanor or felony convictions,
              other than a traffic violation. The petition
              shall not be filed earlier than 15 years
              after the date of the conviction or when any
              active sentence, period of probation, and
              post-release supervision has been served,
              whichever occurs later.

N.C. Gen. Stat. § 15A-145.5(c).               Moreover,

              if the person is convicted of more than one
              . . . nonviolent misdemeanor in the same
              session of court and none of the . . .
              nonviolent misdemeanors are alleged to have
              occurred after the person had already been
              served   with    criminal   process  for   the
              commission    of    a   nonviolent  .    .   .
              misdemeanor, then the multiple . . .
              nonviolent misdemeanor convictions shall be
              treated as one . . . non violent misdemeanor
              conviction under this section[.]

N.C.    Gen.    Stat.    §      15A-145.5(b).        The   statute     defines     a

nonviolent misdemeanor as any misdemeanor except:
                                      -5-
           (1) A Class A through G felony or a Class A1
           misdemeanor.

           (2) An offense that includes assault as an
           essential element of the offense.

           (3)   An   offense   requiring   registration
           pursuant to Article 27A of Chapter 14 of the
           General Statutes, whether or not the person
           is currently required to register.

           (4) Any of the following sex-related or
           stalking offenses: G.S. 14-27.7A(b), 14-
           190.7,   14-190.8,  14-190.9,  14-202,   14-
           208.11A, 14-208.18, 14-277.3, 14-277.3A, 14-
           321.1.

           (5) Any felony offense in Chapter 90 of the
           General Statutes where the offense involves
           methamphetamines, heroin, or possession with
           intent to sell or deliver or sell and
           deliver cocaine.

           (6) An offense under G.S. 14-12.12(b), 14-
           12.13, or 14-12.14, or any offense for which
           punishment was determined pursuant to G.S.
           14-3(c).

           (7) An offense under G.S. 14-401.16.

           (8) Any felony offense in which a commercial
           motor vehicle was used in the commission of
           the offense.

N.C. Gen. Stat. § 15A-145.5(a).

    Here, defendant was convicted of two counts of misdemeanor

cruelty   to   animals   with   the   same   offense   date   in   the   same

session of court.    The crime is not a Class A1 misdemeanor, does

not contain assault as an essential element, does not require
                                               -6-
sex   offender       registration,        is    not       a    sex-related        or   stalking

offense, and is a completely separate offense from any listed in

(5), (6), (7), or (8) above.               See id.

      Thus, contrary to the trial court’s legal conclusions, the

law of this State allows for a misdemeanor cruelty to animals

conviction          to     be     expunged           in       specific       circumstances.

Accordingly, defendant, under existing law, could perform the

provision      of    the    agreement      requiring           him    to    “cooperate     with

[p]laintiff         in   having    the    [cruelty            to    animals]      convictions”

expunged, assuming plaintiff is eligible under N.C. Gen. Stat. §

15A-145.5(c).            Thus,    we   rule     that       the     trial    court      erred   in

denying plaintiff’s motion to enforce the agreement.

b.) Ineffective Assistance of Counsel

      Plaintiff          also     avers    that           defendant        “deceived”      him,

“coerced” him to enter a no contest plea, failed to present the

trial court with mitigating factors at sentencing, asserted to

the   trial    court       that   he     was    guilty,        and    had    a    conflict     of

interest in the case.             Thus, plaintiff contends that he received

ineffective         assistance      of    counsel.             We    dismiss       plaintiff’s

argument      without      prejudice      to    his       right      to    file    appropriate

motions in the trial court.
                                              -7-
      When raising claims of ineffective assistance of counsel,

the   “accepted      practice”         is    to     bring     these      claims      in   post-

conviction proceedings, rather than on direct appeal.                                State v.

Dockery,      78    N.C.        App.    190,        192,      336       S.E.2d    719,     721

(1985).       Here,       plaintiff          has      “prematurely           asserted       his

ineffective assistance of counsel claim” by directly appealing

to this Court.        See State v. Stroud, 147 N.C. App. 549, 556, 557

S.E.2d 544, 548 (2001) (quotation and citation omitted).                                  While

plaintiff      raises      potential          questions          regarding       defendant’s

handling     of     the    no    contest          plea,     we    are    unable      to    find

ineffective assistance of counsel from the face of the record.

A   motion    for    appropriate        relief       is     the     proper    mechanism      to

resolve this issue.             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

and   concluding      that      “[t]o       properly        advance      these    arguments,

defendant must move for appropriate relief pursuant to G.S. 15A–

1415[ ] and G.S. 15A-1420[ ]”).

                                   III. Conclusion

      In     sum,    we    reverse          the     trial     court’s        order    denying

plaintiff’s motion to enforce the agreement because a conviction

for the crime of misdemeanor cruelty to animals can be expunged
                              -8-
in limited circumstances under North Carolina law.   We dismiss

plaintiff’s claim for ineffective assistance of counsel without

prejudice to his right to file appropriate motions in the trial

court.

    Reversed, in part; dismissed, in part.

    Judges McGEE and HUNTER, Robert C., concur.

    Report per Rule 30(e).
