Opinion
No. COA15-600
05-03-2016
STATE OF NORTH CAROLINA, v. ROBERT LEE BAKER, JR., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, Nos. 12 CR 58255-56 Appeal by defendant from judgment entered 2 October 2014 by Judge David E. Sipprell in Forsyth County District Court. Heard in the Court of Appeals 4 November 2015. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant. GEER, Judge.
Defendant Robert Lee Baker, Jr. appeals the denial of his motion to set aside his plea of guilty to two counts of obtaining property by false pretenses, a Class H felony. Defendant entered his guilty plea concurrently with a deferred prosecution agreement in district court. On appeal, defendant argues that because the trial court erroneously accepted his guilty plea concurrently with his deferred prosecution agreement, defendant was effectively convicted, and his charges could no longer be dismissed upon compliance with his probation pursuant to the deferred prosecution agreement. Thus, defendant could not receive the benefit of his bargain, and his agreement was not the product of informed choice. We, therefore, reverse the district court's denial of defendant's motion to set aside his guilty plea, vacate that guilty plea and the judgment entered on that plea, and remand to the district court to allow defendant to either proceed to trial or enter into a new plea agreement.
Facts
On 15 August 2012, defendant, a former Winston-Salem police officer, was charged with two counts of obtaining property by false pretenses, with the offenses committed between 17 June 2011 and 27 July 2012. These charges arise out of numerous instances over a period of months relating to defendant's practice of billing and receiving payment for off-duty security jobs that he did not actually work. For instance, on 27 July 2012, defendant billed several hours of work to the Winston-Salem Housing Authority and Development Management when, as determined by a Winston-Salem detective, defendant was actually at home. After the detective confronted defendant, he confessed to leaving off-duty locations early while still billing hours for the work. The Winston-Salem Police Department determined that defendant engaged in this behavior from at least June 2011 through 27 July 2012.
Pursuant to N.C. Gen. Stat. § 7A-272(c), defendant pled guilty in district court on 1 February 2013 to two counts of obtaining property by false pretenses in exchange for the State entering into a deferred prosecution arrangement with him. The district court accepted and recorded defendant's guilty plea by a transcript of plea. Defendant's plea arrangement specifically stated: "The Defendant will be allowed to participate in the Deferred Prosecution program. If he successfully completes the program, the charges will be dismissed. If he does not successfully complete [the] program, judgment will be entered." The district court completed and filed a deferred prosecution form, placing defendant on supervised probation for 12 months and requiring him to complete 50 hours of community service during the first 180 days of the deferral period. The trial court then continued the case until 30 January 2014 and adjourned the proceedings.
On 29 August 2013, defendant's probation officer filed a violation report alleging that defendant had violated the terms of the deferred prosecution agreement. The report alleged that defendant had violated the following conditions of his probation: (1) defendant failed to make payments towards the amount due for court costs, restitution, and a community service fee, (2) defendant failed to make any payments towards his monthly probation fee, and (3) defendant had been charged with carrying a concealed gun, first degree burglary, and communicating threats. In addition, the report noted that "the defendant signed an agreement and order to participate in the deferred prosecution program on 2/1/2013. A requirement of such agreement is not to commit any criminal offenses. On 8/14/13 the defendant was charged and arrested for first degree burglary, carrying cocealed [sic] gun (M) and communicating threats file number 13CR058335 as well as robbery with a dangerous weapon, second degree kidnapping, and impersonate [sic] law enforcement file number 13CR058338."
Defendant's probation violation case was called in Forsyth County District Court on 2 October 2014. On the same day, defendant filed a "Motion to Set Aside Plea Entry" in which he asserted that "the act of the Court in accepting the guilty plea and ordering it recorded removed any such authority from the state" to dismiss the charges. This result, defendant asserted, rendered the deferred prosecution agreement "null and void" because it "deprived the defendant of the benefit of his bargain making the plea therefor not a knowing and voluntary one."
At the hearing, defendant's counsel objected to the entry of judgment and argued that defendant's guilty plea should be set aside on the grounds set forth in the motion. The trial court, classifying defense counsel's arguments as an objection, "overruled" this objection and subsequently consolidated the two charges of obtaining property by false pretenses for judgment, sentencing defendant to a presumptive-range term of nine to 20 months imprisonment. Defendant timely appealed to this Court. In addition, defendant has also filed a petition for writ of certiorari.
Basis for Appellate Jurisdiction
Before addressing the merits of defendant's appeal, we first must examine whether we have jurisdiction to hear his appeal from district court, whether defendant has a proper appeal as a matter of right to this Court, and, if not, whether to grant his petition for writ of certiorari. The State contends that defendant's appeal and his petition for writ of certiorari should be dismissed.
Generally, "[t]he superior court has 'exclusive, original jurisdiction' to try defendants accused of felonies." State v. Bell, 121 N.C. App. 700, 701, 468 S.E.2d 484, 485 (1996) (quoting N.C. Gen. Stat. § 7A-271(a) (1995)). However, "[w]ith the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant's plea of guilty or no contest to a Class H or I felony . . . ." N.C. Gen. Stat. § 7A-272(c) (2015). Also, generally, "[a]ppeals by . . . the defendant from the district court are to the superior court." N.C. Gen. Stat. § 7A-271(b) (2015). On the other hand, N.C. Gen. Stat. § 7A-272(d) specifies that "[p]rovisions in Chapter 15A of the General Statutes apply to a plea [of guilty to a Class H or I felony] as if the plea had been entered in superior court, so that a district court judge is authorized to act in these matters in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court, and appeals that are authorized in these matters are to the appellate division." (Emphasis added.)
The State argues that this Court does not have jurisdiction over defendant's appeal, citing State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004). In Hooper, the Supreme Court held that N.C. Gen. Stat. § 7A-272(d), which allows appeal directly to the Court of Appeals, applies only to appeals from guilty pleas and does not apply to appeals from decisions in district court revoking probation. 358 N.C. at 125, 591 S.E.2d at 516. The Court concluded, id., that for probation revocation appeals, a defendant must appeal to superior court pursuant to N.C. Gen. Stat. § 15A-1347(a) (2015), which provides: "[W]hen a district court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, the defendant may appeal to the superior court for a de novo revocation hearing." However, our Supreme Court emphasized that N.C. Gen. Stat. § 7A-272(d) "expressly governs a separate and distinctly different situation -- an appeal from a plea to a Class H or I felony taken in district court." Hooper, 358 N.C. at 125, 591 S.E.2d at 516.
Although defendant sought to have his motion to set aside his guilty plea heard at a probation revocation hearing in district court, defendant is not appealing the revocation of his probation, but rather is appealing the denial of his motion to set aside his guilty plea. Consequently, N.C. Gen. Stat. § 15A-1347 is not applicable to this appeal. Rather, we hold that N.C. Gen. Stat. § 7A-272(d) applies and, therefore, the provisions of Chapter 15A determine whether we have jurisdiction to hear defendant's appeal.
Whether defendant's motion to set aside his guilty plea is a proper motion to withdraw a guilty plea or whether this motion is a collateral attack on the judgment of the trial court, which would be properly presented pursuant to a motion for appropriate relief ("MAE") is the next issue we will address. See State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) ("A motion to withdraw a guilty plea made before sentencing is significantly different from a post-judgment or collateral attack on such a plea, which would be by a motion for appropriate relief."). However, appellate review of both types of motions is governed by N.C. Gen. Stat. § 15A-1444 (2015). See N.C. Gen. Stat. §15A-1444(e) (authorizing appeal of denial of motion to withdraw guilty plea), § 15A-1444(f) (providing that denial of MAE may be reviewed by writ of certiorari). Because N.C. Gen. Stat. § 7A-272(d) authorized the district court to hear either type of motion in the same manner as a superior court judge, § 7A-272(d) further provides that appeals from decisions on those motions "are to the appellate division." Review of the denial of defendant's motion, regardless how classified, is, therefore, properly sought in this Court.
Defendant's Right to Appeal and Petition for Writ of Certiorari
Criminal defendants have a statutorily limited right to appeal. State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002) ("[A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute."). When a criminal defendant enters a plea of guilty, his right to appeal is limited even further to only certain circumstances. One of those circumstances occurs where a defendant's motion to withdraw his guilty plea is denied. N.C. Gen. Stat. § 15A-1444(e).
At first glance, it would seem that defendant here has moved to withdraw his guilty plea and that the district court's denial of his motion provides defendant an appeal of right to this Court. However, as our Supreme Court explained in Handy: "A motion to withdraw a guilty plea made before sentencing is significantly different from a post-judgment or collateral attack on such a plea, which would be by a motion for appropriate relief." 326 N.C. at 536, 391 S.E.2d at 161 (emphasis added). The Supreme Court concluded that the timing of the filing of the motion to withdraw a guilty plea was critical because "[a] fundamental distinction exists between situations in which a defendant pleads guilty but changes his mind and seeks to withdraw the plea before sentencing and in which a defendant only attempts to withdraw the guilty plea after he hears and is dissatisfied with the sentence." Id.
Accordingly, whether defendant has an appeal as of right pursuant to N.C. Gen. Stat. § 15A-1444(e) hinges on whether we can consider defendant's "Motion to Set Aside Plea Entry" a proper pre-sentence motion to withdraw or whether this motion is more akin to a post-sentence MAR. The key factor in deciding this question is the fact that the district court required defendant to enter a transcript of plea on a Form AOC-CR-300 and then accepted his plea of guilty.
" 'Undeniably, a defendant is considered to be convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him . . . .' " State v. Oakley, 75 N.C. App. 99, 103, 330 S.E.2d 59, 62 (1985) (quoting United States v. Hecht, 638 F.2d 651, 657 (3d Cir. 1981)). See also State v. Shrader, 290 N.C. 253, 262, 225 S.E.2d 522, 529 (1976) ("A plea of guilty, when accepted, [is] the equivalent of a conviction . . . ."); State v. Shelly, 280 N.C. 300, 301, 185 S.E.2d 702, 703 (1972) (per curiam) ("The plea of guilty is equivalent to a conviction of the offense charged."). While the act of accepting defendant's guilty plea amounted to defendant's conviction, the deferred prosecution agreement was akin to sentencing. Thus, we must, pursuant to the principles set out in Handy, consider defendant's subsequent motion to set aside his guilty plea at the probation revocation hearing an MAR. Consequently, given that defendant's motion is not a proper pre-sentence motion to withdraw his guilty plea, he does not have an appeal as of right pursuant to N.C. Gen. Stat. § 15A-1444(e).
However, defendant has filed a petition for writ of certiorari, requesting that we exercise our discretion to review the merits of his appeal. Rule 21(a)(1) of the Rules of Appellate Procedure specifically gives this Court discretion to "review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief." We find defendant's claim that the agreement he entered into with the State was not a product of informed choice provides a sufficient basis upon which to exercise this discretion. We, therefore, grant defendant's petition for writ of certiorari and review his arguments on appeal.
As a final matter, we address the State's argument that "[b]ecause the trial court did not rule on Defendant's [motion to set aside his plea], this issue is not preserved for our review." State v. Hall, 203 N.C. App. 712, 716, 692 S.E.2d 446, 449 (2010). The State relies on the fact that the district court did not deny defendant's motion by oral or written order, but instead "overruled" defendant's objection at the probation revocation hearing. The district court's choice of words -- "overruled" as opposed to "denied" -- does not alter the fact that the district court rejected defendant's arguments set forth in his motion to set aside his plea. Consequently, the trial court's ruling is properly before this Court.
Motion to Set Aside Guilty Plea
Turning to the merits of defendant's appeal, defendant contends that the district court erred by accepting his deferred prosecution agreement while simultaneously recording his guilty plea, therefore depriving him of the possibility of ever having the charges against him dismissed upon the successful completion of his probation. Defendant argues that his plea was, therefore, "improperly accepted because it was not the product of informed choice and did not provide him the benefit of his bargain . . . ." State v. Demaio, 216 N.C. App. 558, 562, 716 S.E.2d 863, 866 (2011). Whether defendant was deprived of the benefit of his plea bargain is a question of law that we review de novo. Id. at 564, 716 S.E.2d at 867.
The transcript of plea accepted by the district court sets out the plea arrangement and identifies a key term of that arrangement as being deferral of the prosecution of defendant's Class H felony charge pursuant to N.C. Gen. Stat. § 15A-1341(a1) (2015). N.C. Gen. Stat. § 15A-1341(a1), the applicable "Deferred Prosecution" statute, provides that "[a] person who has been charged with a Class H or I felony or a misdemeanor may be placed on probation as provided in this Article . . . ." Generally, a deferred prosecution agreement results in a defendant's "admission of responsibility" as described on an AOC-CR-610 "Motion/Agreement and Order to Defer Prosecution" Form, or an acknowledgement of "guilt in fact," but this admission or acknowledgement does not amount to a guilty plea. See State v. Ross, 173 N.C. App. 569, 574, 620 S.E.2d 33, 37 (2005) ("The acknowledgment of guilt contained in the transcript of the [deferred prosecution] agreement, without more, is insufficient to raise the legal inference that a guilty plea was entered and accepted."), aff'd per curiam, 360 N.C. 355, 625 S.E.2d 779 (2006).
Pursuant to a deferred prosecution agreement, if a defendant complies with the terms of his probation, his charges will be dismissed. N.C. Gen. Stat. § 15A-1342(i) (2015); N.C. Gen. Stat. § 15A-931(a) (2015). However, if a defendant violates the terms of his probation, and thus breaches his deferred prosecution agreement, the trial court, pursuant to N.C. Gen. Stat. § 15A-1344(d) (2015), "may order that charges as to which prosecution has been deferred be brought to trial[.]" (Emphasis added.)
In this case, defendant did not only enter into a deferred prosecution agreement, but he was also, as part of his plea arrangement, required to plead guilty. While not squarely on point, this Court's decision in Ross illustrates the inherent inconsistency of combining a guilty plea and a deferred prosecution agreement as occurred in this case. In Ross, the defendant, a president of a corporation, failed to pay the corporation's quarterly employee withholding taxes and was eventually charged with five counts of misdemeanor failure to file or failure to pay withholding tax. 173 N.C. App. at 570-71, 620 S.E.2d at 35. Rather than try these charges, defendant and the State entered into a deferred prosecution agreement. Id. at 571, 620 S.E.2d at 35. Although as part of that agreement the defendant acknowledged his guilt in fact to these charges, he did not enter a guilty plea and the trial court did not accept a guilty plea. Id. at 574, 620 S.E.2d at 37.
When the defendant later breached the terms of the deferred prosecution agreement, the State voluntarily dismissed the five misdemeanor charges and pursued more serious charges of aiding and abetting in the embezzlement of State property and obtained a conviction of defendant on those charges. Id. at 571, 620 S.E.2d at 35-36. In an effort to avoid the more serious punishment arising out of that conviction, the defendant argued on appeal that the State was precluded from pursuing the more serious offenses on double jeopardy grounds because he had already entered his guilty plea for the misdemeanor charges. Id. at 572, 620 S.E.2d at 36. The defendant did not contend "that jeopardy would attach in every instance where a criminal defendant enters into a deferred prosecution[,]" but rather argued "that under the terms of his deferred prosecution agreement, a plea of guilty was contemplated and accepted by the trial court." Id. at 573, 620 S.E.2d at 36.
On appeal, this Court held that the defendant's acknowledgement of guilt in the deferred prosecution agreement was not a de facto guilty plea accepted by the trial court and, therefore, jeopardy had not yet attached. Id. at 574, 620 S.E.2d at 37. Furthermore, this Court explained the contemplated deferred prosecution procedure: "[I]f the State pursued the original misdemeanor charges against defendant after he failed to complete the program, he would have had the opportunity to obtain a jury trial by pleading not guilty." Id. at 573-74, 620 S.E.2d at 37 (emphasis added).
In this case, however, because defendant had already pled guilty pursuant to a transcript of plea and the trial court accepted that plea, the trial court could not follow through with the procedure anticipated by N.C. Gen. Stat. § 15A-1342(i): either (1) upon failure to complete the program, an opportunity to plead not guilty and a jury trial, or (2) upon successful completion of the program, dismissal of the charges. In this case, as in any case in which a defendant has pled guilty, the " 'defendant is considered to be convicted by the entry of his plea of guilty[,]' " Oakley, 75 N.C. App. at 103, 330 S.E.2d at 62 (quoting Hecht, 638 F.2d at 657), and after entry of a guilty plea, "the court has power: (1) To pronounce judgment and place it into immediate execution; (2) to pronounce judgment and suspend or stay its execution; (3) to continue prayer for judgment." State v. Griffin, 246 N.C. 680, 682, 100 S.E.2d 49, 50 (1957).
Here, the trial court did not continue prayer for judgment because it imposed community service requirements upon defendant pursuant to defendant's deferred prosecution agreement. See State v. Brown, 110 N.C. App. 658, 659, 430 S.E.2d 433, 434 (1993) ("When, however, the trial judge imposes conditions amounting to punishment on the continuation of the entry of judgment, the judgment loses its character as a PJC and becomes a final judgment." (internal quotation marks omitted)); State v. Popp, 197 N.C. App. 226, 228, 676 S.E.2d 613, 614 (2009) (holding "[c]onditions amounting to punishment" include fines and community service requirements (internal quotation marks omitted)). Upon imposition of conditions amounting to punishment, a trial court's judgment is "transformed into a final judgment." Id., 676 S.E.2d at 615.
Thus, in this case, on 1 February 2013, upon the trial court's accepting defendant's guilty plea -- which resulted in defendant's conviction of the charges -- and imposing conditions amounting to punishment, the court entered a final judgment. Once a final judgment is entered, a court has authority to vacate that judgment only "pursuant to a writ of habeas corpus or pursuant to a motion for appropriate relief." Id. at 229, 676 S.E.2d at 615. Consequently, in Popp, this Court held that once a trial court entered judgment imposing conditions amounting to punishment, the court "was without authority to dismiss the charge" in a subsequent order. Id.
Likewise, in this case, because the trial court's order to defer prosecution was entered following acceptance of defendant's guilty plea and amounted to a final judgment, there could no longer be a dismissal of the charges against defendant if he complied with the deferred prosecution agreement. Id. Because defendant's plea agreement provided that "[t]he prosecutor will take a voluntary dismissal upon compliance with this Agreement," but dismissal of these charges was not possible on account of defendant's accepted guilty plea, defendant's plea agreement "was not the product of informed choice and did not provide him the benefit of his bargain . . . ." Demaio, 216 N.C. App. at 562, 716 S.E.2d at 866.
These circumstances are analogous to State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5 (2003), rev'd in part on other grounds, 358 N.C. 473, 598 S.E.2d 125 (2004). In Jones, the defendant entered a guilty plea on the condition that he would be able to appeal the trial court's rulings on his petition for writ of habeas corpus, motion to suppress, and motion to dismiss. Id. at 61, 588 S.E.2d at 7. However, as this Court explained, "[a]lthough defendant specifically conditioned his entire plea agreement on appellate review, . . . defendant's right to appeal [was] limited to the motion to suppress evidence and [did] not provide for review of the other motions." Id. "Since defendant [was] entitled to the benefit of his bargain," the Court vacated his guilty plea and remanded the case to the trial court to allow defendant to proceed to trial or negotiate another plea. Id. at 61, 63, 588 S.E.2d at 7, 8.
Similarly, here, because defendant did not receive the benefit of his bargain in entering his plea arrangement, his plea "was not the product of informed choice," Demaio, 216 N.C. App. at 564, 716 S.E.2d at 867, and the district court erred in denying defendant's motion to set aside his guilty plea. Accordingly, we reverse the trial court's denial of defendant's motion to set aside his guilty plea, vacate defendant's guilty plea, vacate the judgment based on that guilty plea, and "remand the case to the trial court, placing defendant back in the position he was in before he struck his bargain: he may proceed to trial or attempt to negotiate another plea agreement." Jones, 161 N.C. App. at 63, 588 S.E.2d at 9.
We note that it is now possible for the State and a defendant to enter into a plea arrangement comparable to the one agreed to in this case. The deferred prosecution statute was amended to allow for a "Conditional Discharge" and provides: "Whenever a person pleads guilty to or is found guilty of a Class H or I felony or a misdemeanor, the court may, on joint motion of the defendant and the prosecutor, and without entering a judgment of guilt and with the consent of the person, defer further proceedings and place the person on probation as provided in this Article for the purpose of allowing the defendant to demonstrate the defendant's good conduct . . . ." N.C. Gen. Stat. § 15A-1341(a4). This amendment had an effective date of 1 December 2014, 2014 N.C. Sess. Ch. 119, § 2, and, therefore, does not apply to this case.
We need not decide defendant's remaining arguments challenging his sentence and whether he validly consented to the district court's jurisdiction as provided in N.C. Gen. Stat. § 7A-272(c) because those issues are now moot. See In re Swindell, 326 N.C. 473, 474, 390 S.E.2d 134, 135 (1990) (" '[A]s a general rule this Court will not hear an appeal when the subject matter of the litigation . . . has ceased to exist.' " (quoting Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968))). With respect to the district court's jurisdiction, defendant will on remand have the opportunity to again decide whether to consent to the district court's jurisdiction.
REVERSED, VACATED, AND REMANDED.
Judges HUNTER, JR. and DILLON concur.
Report per Rule 30(e).