Kyprianides v. Martin ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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]
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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
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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:
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(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
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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.
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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
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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).