Opinion
No. COA09-1505
Filed 4 May 2010 This case not for publication
Appeal by Defendant from order entered 27 August 2009 by Judge Anderson D. Cromer in Superior Court, Stokes County. Heard in the Court of Appeals 13 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for the defendant-appellant.
Stokes County 08 CRS 52701; 09 CRS 50086.
A post-sentencing motion to withdraw a guilty plea should be granted only to "`avoid manifest injustice.'" In this case, Defendant contends that his motion to withdraw his guilty pleas should have been granted because he entered the pleas while under the influence of prescription medication and under pressure from defense counsel. Having reviewed the record and concluded that Defendant knowingly and willingly entered his pleas, we affirm the trial court's denial of Defendant's motion.
State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (quoting State v. Olish, 164 W. Va. 712, 715, 266 S.E.2d 134, 136 (1980)).
Contrary to his pleas in district court, Defendant Faron Jackson Allen was found guilty of assault on a female and being intoxicated and disruptive in a public place. Defendant appealed to Superior Court where he chose to plead guilty to both charges. Upon finding Defendant guilty, the trial court sentenced Defendant to active imprisonment terms suspended on the condition that Defendant complete twenty-four months of supervised probation.
Three days later, Defendant moved to withdraw his guilty pleas stating that when he entered the pleas he had been under the influence of prescription medication. Defendant also indicated that he entered the pleas because he was "scared" after his lawyers informed him of the potential that, if he did not do so, the State would pursue an additional indictment. From the denial of his motion, Defendant appeals to this Court.
It is well-settled that a post-sentencing motion to withdraw a guilty plea should be granted only to "`avoid manifest injustice.'" Handy, 326 N.C. at 536, 391 S.E.2d at 161 (quoting Olish, 164 W. Va. at 715, 266 S.E.2d at 136). "Factors to be considered in determining the existence of manifest injustice include whether: Defendant was represented by competent counsel; Defendant is asserting innocence; and Defendant's plea was made knowingly and voluntarily or was the result of misunderstanding, haste, coercion, or confusion." State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247 (2002) (quoting Handy, 326 N.C. at 539, 391 S.E.2d at 163). "In reviewing a decision of the trial court to deny defendant's motion to withdraw, the appellate court does not apply an abuse of discretion standard, but instead makes an `independent review of the record.'" State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993) (quoting Handy, 326 N.C. at 539, 391 S.E.2d at 163).
Defendant first argues that his guilty pleas were improvidently entered while he was under the influence of Zyprexa, a prescription medication. He argues that the medication made him "nervous and shaky."
The record shows that during the plea colloquy, the trial court asked Defendant, "Are you presently under the influence of alcohol, drugs, or narcotics, or medicine, or pills?" Defendant replied, "No, sir." In addition, Defendant signed the Transcript of Plea, in which he answered "No" to the question "Are you now under the influence of alcohol, drugs, narcotics, medicines, pills, or any other substance?" Furthermore, Defendant replied, "Yes, sir" when the trial court asked, "Do you enter this plea of your own free will, fully understanding what you're doing?" "Absent clear and convincing evidence to the contrary, defendant will be bound by such an assertion." State v. Ager, 152 N.C. App. 577, 584, 568 S.E.2d 328, 332 (2002) (affirming trial court's acceptance of a guilty plea from defendant claiming he was confused during the plea colloquy because he failed to take medication prescribed to treat his depression), aff'd per curiam, 357 N.C. 154, 588 S.E.2d 453 (2003).
Defendant did not present any evidence to the trial court regarding the effect that the drug had on his mental state when he entered his guilty pleas. Indeed, Defendant neither argued nor presented any evidence tending to show that his medication caused him to unwillingly or unknowingly enter his guilty pleas. In contrast, the trial judge, who had the opportunity to observe and question Defendant, found before accepting the pleas that Defendant was "competent to stand trial" and that Defendant's pleas were the product of "informed choice, made freely, voluntarily and understandingly." Our independent review of the record leads us to the same conclusion. Accordingly, we decline to disturb the trial court's acceptance of Defendant's guilty pleas where there is ample evidence to support the trial court's finding that Defendant freely, understandingly, and voluntarily pleaded guilty to the charges. See State v. Ellis, 13 N.C. App. 163, 165, 185 S.E.2d 40, 42 (1971) (affirming trial court's acceptance of a guilty plea from defendant under the influence of a tranquilizer at time of plea colloquy).
Defendant further argues that his lawyers pressured him to plead guilty. However, the record indicates that Defendant stated that he was satisfied with his representation, aware of the nature of charges against him, and conscious of the possible consequences of his guilty plea. Defendant further confirmed that there was a factual basis for the plea and that the pleas were not entered pursuant to a plea agreement with the State or any promise or threat. Furthermore, when the trial court asked, "Has anyone made any promises to you or threatened you in any way to cause to you [sic] enter this plea against your wishes?" Defendant replied "No, sir." "`While not, in an appropriate case, an insurmountable barrier to a defendant who claims that his plea was coerced, such declarations made in open court carry a strong presumption of veracity.'" State v. Salvetti, ___ N.C. ___, ___, 687 S.E.2d 698, 708 (2010) (quoting U.S. v. Morrow, 914 F.2d 608, 613-14 (4th Cir. 1990)). Considering Defendant's repeated assertions during the plea colloquy that he was entering his plea voluntarily, as well as the absence of any clear evidence to the contrary, we decline to find that his plea was the product of improper persuasion.
Defendant also contends in his brief that the short interval between his entry of the guilty pleas and his subsequent motion to withdraw the pleas "indicated that he pled guilty in haste and confusion." Defendant's argument mistakenly relies on the decision of our Supreme Court in State v. Handy, 326 N.C. 532, 391 S.E.2d 159 (1990), for the proposition that "`[a] swift change of heart is itself strong indication that the plea was entered in haste and confusion.'" Id. at 539, 391 S.E.2d at 163 (quoting United States v. Barker, 514 F.2d 208, 222 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 44 L. Ed. 2d 682 (1975)). "In Handy, however, the defendant's motion to withdraw his plea was entered prior to sentencing. As defendant's motion to withdraw his plea was entered post-sentencing and is subject to a different legal standard than a pre-sentencing motion, his argument is unpersuasive." Salvetti, ___ N.C. App. at ___, 687 S.E.2d at 709 (citation omitted) (addressing argument "that the short time between entry of plea and motion to withdraw is evidence that denial of the plea was manifestly unjust"). Although Defendant brought a motion to withdraw his guilty pleas only three days after entering the pleas, his argument fails to recognize the significance of the intervening event of his sentencing and is, as such, without merit.
In sum, we conclude that Defendant failed to present evidence that the denial of his motion to withdraw his guilty pleas would result in a manifest injustice. Accordingly, we affirm the trial court's denial of his motion to withdraw his pleas.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per rule 30(e).