Opinion
No. COA09-1132
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgment entered 9 March 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 23 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State. Paul Y. K. Castle for defendant-appellant.
Brunswick County Nos. 07 CRS 7168, 07 CRS 53818-19, 07 CRS 54185-86, 07 CRS 54188 07, CRS 55823-24.
Defendant Franklin Floyd appeals from the trial court's entry of judgment on his guilty plea to various drug-related offenses and possession of a stolen firearm. On appeal, defendant primarily contends that the State coerced him into pleading guilty in exchange for the dismissal of pending charges against his wife. Because this Court has previously held that such a plea agreement is not per se involuntary, and defendant has not otherwise demonstrated that his plea was the result of improper pressure, we affirm.
Facts
On 5 November 2007, defendant was indicted for one count of possession with intent to sell and deliver a Schedule Two controlled substance, four counts of possession with intent to sell and deliver a Schedule Three controlled substance, four counts of possession of drug paraphernalia, one count of possession of a stolen firearm, two counts of trafficking in opium or heroin, and one count of maintaining a dwelling to keep controlled substances. The record indicates that defendant's wife was charged with related offenses, although those indictments are not included in the record.
Defendant subsequently entered into a plea arrangement with the State in which he agreed to plead guilty to all but one of the charges. In exchange, the State agreed that (1) the charges would be consolidated into one judgment, (2) defendant would receive a sentence of 70 to 84 months imprisonment, (3) additional charges pending against him (seven trafficking counts and one count of possession of stolen goods) would be dismissed, (4) his sentencing would be continued for three months, and (5) the State would dismiss with prejudice all charges pending against defendant's wife.
Defendant pled guilty to only one count of trafficking in opium or heroin.
At the plea hearing on 27 October 2008, defendant acknowledged that he understood the charges against him, that he and his lawyer had discussed any possible defenses, that he was satisfied with his legal representation, and that he understood he had a right to plead not guilty and have a trial by a jury. The trial court then asked defendant:
Q. Do you now personally plead guilty?
A. Yes, sir.
Q. Are you in — are you, in fact, guilty?
A. Yes, sir.
Q. Have you agreed to plead as part of a plea arrangement?
A. Yes, sir.
After going through the charges, the trial court asked:
Q. Is the plea arrangement as set forth within this transcript and as I have just described it to you, correct as being your full plea arrangement?
A. Yes.
Q. Other than this plea arrangement between you and the prosecutor, has anyone made any promises to you or threatened you in any way in order to cause you to enter this plea against your wishes?
A. No, sir.
Q. Do you enter it of your own free will and understanding what you're doing?
A. Yes, sir.
Q. Do you agree that there are facts that support your plea and consent to the prosecutor summarizing the evidence?
A. Yes, sir.
The State then summarized the factual basis for the plea, stating that in April and June of 2007, an undercover informant with the Brunswick County Sheriff's Department made a series of controlled purchases of prescription pills from defendant. When defendant was arrested, he was found to be in possession of a firearm that had been reported stolen and numerous prescription pills, bottles, and plastic baggies.
Defendant's counsel then told the court that, because of a back injury, defendant's doctor had given him prescriptions for Vicodin and other prescription pain medication. When, during that time, defendant's wife became ill with cancer, defendant, who was on a fixed income, tried to make extra money by selling his prescription pain medication. The trial court asked defendant if he had anything to say, to which defendant responded: "No, sir. I'm sorry I done it, but it's all over with now." The trial court found a factual basis for the plea and found that the plea was freely, voluntarily, and understandingly made. The court accepted the plea but continued entry of judgment until 25 January 2009.
On 23 January 2009, defendant filed a motion to withdraw his guilty plea. At the sentencing hearing held on 9 March 2009, defendant's counsel informed the trial court that the motion to withdraw had been "summarily denied" in a previous hearing. Neither the transcript of that earlier proceeding nor the trial court's order denying the motion to withdraw is included in the record on appeal.
At the March 2009 sentencing hearing, defendant's counsel also explained that defendant's wife had died shortly after defendant entered his plea. Defendant then renewed his motion to withdraw the guilty plea at the sentencing hearing. The trial court denied the motion, entered judgment, and sentenced defendant to a term of 70 to 84 months imprisonment consistent with the plea arrangement. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court should have granted his motion to withdraw his guilty plea because the plea was coerced by the State's offer to dismiss the charges against his wife in exchange for his plea. "`In a case where the defendant seeks to withdraw his guilty plea before sentence, he is generally accorded that right if he can show any fair and just reason.'" 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)). A showing of coercion is one of many factors favoring withdrawal. Id. at 539, 391 S.E.2d at 163.
"In order for a plea of guilty to be valid, it must be made knowingly and voluntarily." State v. Allen, 164 N.C. App. 665, 669, 596 S.E.2d 261, 263 (2004). Defendant asserts that the State's offer to dismiss the charges against his wife in exchange for his guilty plea constituted improper pressure rendering his guilty plea per se involuntary. See N.C. Gen. Stat. § 15A-1021(b) (2009) ("No person representing the State or any of its political subdivisions may bring improper pressure upon a defendant to induce a plea of guilty or no contest.").
In State v. Salvetti, ___ N.C. App. ___, ___, 687 S.E.2d 698, 707, appeal dismissed and disc. review denied, 364 N.C. 246, 699 S.E.2d 919 (2010), this Court addressed the propriety of "[p]ackage plea deals" in which the State "offer[s] leniency for a third party . . . contingent on the defendant pleading guilty." In Salvetti, the defendant pled guilty in exchange for the State's agreeing to enter into a plea agreement with his wife. Id. at ___, 687 S.E.2d at 707. The Court rejected the argument that such a package deal violates N.C. Gen. Stat. § 15A-1021(b), explaining that "[t]he official commentary regarding the prohibition of improper pressure in section 15A-1021(b) lists three means by which a prosecutor shall not seek to induce a guilty plea: [1] by charging or threatening to charge defendant with a crime that either is not supported by the facts, or [2] is not ordinarily charged for defendant's alleged acts, [or] [3] by threatening defendant with a sentence more severe than is ordinarily imposed upon defendants who plead not guilty." ___ N.C. App. at ___, 687 S.E.2d at 707. Because the defendant in Salvetti could point to nothing in the record indicating that any of these three forms of improper pressure had been used by the State, the Court held the plea had not been coerced in violation of N.C. Gen. Stat. § 15A-1021(b). ___ N.C. App. at ___, 687 S.E.2d at 707.
We are bound by Salvetti. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court."). In this case, as in Salvetti, defendant points to nothing in the record to show that the prosecutor charged or threatened to charge him with a crime unsupported by the facts, charged or threatened to charge him with a crime not ordinarily charged for defendant's alleged acts, or threatened to seek a sentence more severe than ordinarily imposed for the alleged acts. Based on Salvetti, we must hold that defendant has failed to demonstrate that his plea was the result of improper pressure.
II
Defendant also contends that the trial court erred at the sentencing hearing in "summarily deny[ing] [defendant's] pre-sentence motion to withdraw his guilty plea, that is, without inquiring into the grounds for the motion." Defendant is not contesting the initial denial of his written motion to withdraw his plea, but rather has limited his argument on appeal to the denial of his renewed motion to withdraw his plea made orally at the sentencing hearing on 9 March 2009. He asserts: "Neither the defense counsel, nor the prosecutor, nor [defendant] was given an opportunity to speak about, or for, or against the motion in question. As soon as the motion was renewed, the trial court set it aside by stating `All right. The same [motion] is hereby again, respectfully denied.'"
In arguing that the trial court erred in denying his motion without making any inquiries as to the grounds for the motion, defendant does not address the fact that his oral motion was a renewal of the written motion that had already been denied. It is unclear whether the same judge denied the original motion and the renewed motion or whether there were two different judges.
In the event that there were two different judges, as a general rule, one superior court judge may not modify, overrule, or change the decision of another superior court judge in the same action. State v. Jones, 278 N.C. 259, 265-66, 179 S.E.2d 433, 437-38 (1971) (holding that, in absence of additional evidence, superior court judge properly denied motion to withdraw guilty plea when another superior court judge had already determined plea was voluntarily made). Defendant makes no argument suggesting that the sentencing judge would have authority to overrule a prior judge's decision denying the motion to withdraw. In the absence of such authority, the failure of the sentencing judge to hear argument on the renewed motion was harmless.
Assuming that the same judge denied both the initial motion and the renewed motion, defendant has still failed to demonstrate any error. Defendant argues on appeal that "[i]t is plausible that [defendant], had he been given the opportunity, would have offered to the trial court several fair and just reasons for his pre-sentence motion to withdraw his guilty plea." Yet, defendant has not shown that the trial court denied him that opportunity at the time of the first hearing of his motion to withdraw his plea. Having presided over the first hearing, the trial judge, upon defendant's renewal of the motion, would be fully familiar with the reasons defendant was asserting for the withdrawal of his plea. Defendant fails to cite any authority requiring a trial court, when hearing a renewed motion, to allow the parties to reargue the motion fully. The trial court, therefore, did not err in denying his renewed motion to withdraw his plea.
Affirmed.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).