The opinion
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.
-2-
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.