Opinion
No. COA12–140.
2012-09-4
STATE of North Carolina v. Wanda Davis BOLIEK.
Attorney General Roy Cooper by Assistant Attorney General Jennifer L. Hillman for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for appellant-defendant.
Upon writ of certiorari from judgment entered 12 August 2011 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 14 August 2012. Attorney General Roy Cooper by Assistant Attorney General Jennifer L. Hillman for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for appellant-defendant.
STEELMAN, Judge.
Under the provisions of N.C. Gen.Stat. 15A–1343(b1) as they existed at the time of the commission of the crimes by the defendant, the trial court did not err in imposing conditions of probation pertaining to warrantless searches at reasonable times.
I. Factual and Procedural History
On 25 November 2009, Roger Sara (“Sara”) left his mobile home in Lawndale, North Carolina to go to the dump. He returned approximately 25 minutes later to find a motor vehicle parked near his back deck. When Sara exited his motor vehicle he noticed Wanda Davis Boliek (“defendant”) standing on his back deck. Defendant stated that she wanted to know whether the house next door, which was owned by Sara's sister, was for sale or rent. Sara called his sister and confirmed that the property was for rent.
As Sara and defendant walked towards the property next door, Sara noticed that the window on his back door was broken. Sara used his motor vehicle to block the driveway so that defendant could not leave, and called the Sheriff's department. When the deputies arrived they found no one inside the house, although when Sara went inside he noticed that a cell phone was missing. Detective Donald Bivens, (“Detective Bivens”) who had also responded to the call, obtained defendant's consent to search her motor vehicle. Detective Bivens discovered a small marijuana cigarette and some rolling papers in the motor vehicle. Defendant was arrested and taken to the Sheriff's department for questioning.
Defendant waived her Miranda rights and was interviewed by Detective Mark Craig (“Detective Craig”). During the interview defendant gave several conflicting accounts as to why she was at Sara's residence.
On 11 January 2010, defendant was indicted for felonious breaking and entering, felony larceny, felonious possession of stolen goods, possession of less than 1/2 ounce of marijuana, and possession of drug paraphernalia. The trial court dismissed the charge of possession of stolen goods. On 12 August 2011, the jury found defendant not guilty of felonious larceny, but guilty of felonious breaking and entering, possession of marijuana, and possession of drug paraphernalia. The trial court consolidated the offenses for judgment and sentenced defendant to 6 to 8 months imprisonment. This sentence was suspended and defendant was placed on supervised probation for 30 months. One of the special conditions of probation was that defendant submit at reasonable times to warrantless searches for stolen goods, controlled substances, contraband, and child pornography.
On 22 August 2011, defendant filed a pro se notice of appeal. Because of possible defects in the notice of appeal, we grant defendant's petition for writ of certiorari, filed 9 March 2012.
II. Ineffective Assistance of Counsel
In her first argument, defendant contends that her trial counsel was ineffective by failing to request a jury instruction on the lesser-included offense of misdemeanor breaking and entering. We dismiss this argument without prejudice for defendant to file a motion for appropriate relief in the trial court.
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), cert. denied,546 U.S. 830, 163 L.Ed.2d 80 (2005).
B. Analysis
“In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147 N.C.App. 549, 553, 557 S .E.2d 544, 547 (2001). “Our Supreme Court has instructed that ‘should the reviewing court determine the IAC [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 MAR [motion for appropriate relief] proceeding.’ “ Stroud, 147 N.C.App. at 554, 557 S.E.2d at 547 (citation omitted).
In the instant case, the record does not disclose whether the actions of defendant's trial counsel were trial strategy or ineffective assistance of counsel. We therefore dismiss this argument without prejudice to the right of defendant to file a motion for appropriate relief in the trial court.
III. Conditions of Probation
In her second argument, defendant contends that the trial court erred in imposing two additional conditions of her probation. We disagree.
A. Standard of Review
Whether the trial court imposed proper conditions on probation is reviewed for abuse of discretion. State v. Harrington, 78 N.C.App. 39, 47, 336 S.E.2d 852, 857 (1985). Abuse of discretion occurs when the trial court's ruling is so manifestly unreasonable or is so arbitrary that it could not have been the result of a reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
B. Analysis
Defendant argues that the trial court improperly imposed a condition of probation that she be subject at reasonable times to warrantless searches for child pornography and stolen goods. Defendant contends that these conditions are improper because they are not reasonably related to the crimes for which she was convicted. However, the reasonable relationship test is only applicable to special conditions of probation that are devised entirely by the court and which fall under N.C. Gen Stat. § 15A–1343 (b1)(10) (2009). The conditions of probation at issue were imposed pursuant to N.C. Gen Stat. § 15A–1343 (b1)(7) (2007) and do not need to be reasonably related to the crimes for which defendant was convicted.
We stated in State v. Parker that when a condition of probation is “devised entirely by the court,” then the “conditions of probation must bear some reasonable relationship to the offense committed.” 55 N.C.App. 643, 645, 286 S.E.2d 366, 367 (1982) (quoting State v. Cooper, 51 N.C.App. 233, 275 S.E.2d 538 (1981)). However, “[w]here ... the judge elects to impose one of the conditions enumerated by the statute, no such check is needed since our legislature has deemed all of these conditions ‘appropriate’ to the rehabilitation of criminals and their assimilation into law-abiding society.” Id. at 646,286 S.E.2d at 368. At the time of defendant's trial, warrantless searches were specifically enumerated as a special condition of probation in N.C. Gen Stat. § 15A–1343(b1). N.C. Gen Stat. § 15A–1343(b1)(7) specifically stated that the court may impose as a special condition of probation that the defendant:
Submit at reasonable times to warrantless searches by a probation officer of his or her person and of his or her vehicle and premises while the probationer is present, for purposes specified by the court and reasonably related to his or her probation supervision, but the probationer may not be required to submit to any other search that would otherwise be unlawful.
N.C. Gen.Stat. § 15A–1343 (b1)(7) (2007). A careful reading of this statutory provision makes it apparent that the objectives of the searches allowed need not be reasonably related to the offense, but rather must only be “reasonably related to his or her probation supervision.” A warrantless search for child pornography and stolen goods is reasonably related to the first general condition of probation—that defendant “commit no criminal offense in any jurisdiction”—and therefore is reasonably related to her probation supervision.
.N.C. Gen Stat. § 15A–1343(b1)(7) was repealed by Session Laws 2009–372, s.9(b) effective December 1, 2009. This provision is not applicable to crimes committed on or after that date.
This argument is without merit.
DISMISSED IN PART, AFFIRMED IN PART. Judges MCGEE and ERVIN concur.
Report per Rule 30(e).