State v. Stroud , 147 N.C. App. 549 ( 2001 )

JOHN, J.,

concurring in part, dissenting in part.

I concur in the majority opinion in all respects save that portion of section I. A. dismissing without prejudice defendant Ronnie Wesley Stroud’s ineffective assistance of counsel claim. As to that issue, I do not read either McCarver v. Lee, 221 F.3d 583 (4th Cir. 2000), cert denied, 551 U.S. 1089, 148 L. Ed. 2d 694 (2001), or State v. Fair, 552 S.E.2d 568 (2001), as mandating that an ineffective assistance of counsel claim, raised on direct appeal in consequence of a defendant’s calculated “decision,” id. at 593, to do so, be reviewed by both the appellate and trial courts. Stroud elected to pursue such claim in this Court without an evidentiary hearing in the trial court, potentially available to him had he filed a motion for appropriate relief in that court, and thus has made the “decision” referred to in Fair. Id. at 593. Indeed, he asserts in his appellate brief that “this is a rare case in which specific instances of ineffective assistance of counsel may be found on the face of the record on appeal.”

The majority properly considers Stroud’s assertion on direct appeal of ineffective assistance of counsel in light of the instant record and concludes he is unable “to meet either of the prongs set out in Strickland and adopted by our Supreme Court in Braswell.” I join the majority’s determination that Stroud’s ineffective assistance of counsel claim is without merit. See Fair at 594, (“defendant has failed to show that his attorney’s conduct rose to the level of unreasonableness or that his attorney’s conduct prejudiced defendant’s trial,” citing Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984), and, “defendant’s ineffective assistance of counsel claims are thus without merit”). For the reasons stated herein, therefore, I respectfully dissent from the majority’s dismissal without prejudice of defendant Ronnie Wesley Stroud’s ineffective of assistance of counsel claim and vote no error thereon.