Opinion
No. COA12–1356.
2013-06-4
STATE of North Carolina v. Demetrius Dallas HAIRSTON.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Gilda C. Rodriguez for Defendant–Appellant.
Appeal by Defendant from judgments entered 26 January 2011 by Judge Anderson Cromer in Superior Court, Forsyth County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Gilda C. Rodriguez for Defendant–Appellant.
McGEE, Judge.
Demetrius Hairston (Defendant) was charged with first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a felon. After four witnesses testified, Defendant entered an Alford plea to voluntary manslaughter, robbery with a dangerous weapon, and possession of a firearm by a felon. Defendant filed written notices of appeal. Defendant filed a brief and a petition for writ of certiorari.
I. Petition for Writ of Certiorari
In his petition, Defendant acknowledges his written notices of appeal were not accompanied by a certificate of service in violation of N.C.R.App. P. 4(a)(2). Defendant asks this Court to review his judgments under N.C.R.App. P. 21(a) (writ of certiorari may be issued in appropriate circumstances when the right to prosecute an appeal has been lost by failure to take timely action). In our discretion, we grant certiorari to review Defendant's judgments.
Defendant further argues the factual basis for a guilty plea may be reviewed on writ of certiorari. Defendant cites State v. Keller, 198 N.C.App. 639, 642, 680 S.E.2d 212, 214 (2009) (granting certiorari due “to the fundamental nature of the errors asserted by [the] defendant”).
This Court has noted the “conflicting lines of opinions” as to whether we have authority to grant certiorari to review challenges to guilty plea procedures. State v. Demaio, ––– N.C.App. ––––, ––––, 716 S.E.2d 863, 867 (2011). This Court, in Demaio, concluded we could not overrule State v. Bolinger, 320 certiorari to review acceptance of guilty plea when neither party “recognized the limited bases for appellate review of judgments entered upon pleas of guilty”), and granted certiorari to review an argument that the plea was not the product of informed choice. Demaio, ––– N.C.App. at ––––, 716 S.E.2d at 867.
Assuming arguendo, without deciding, that Defendant asserts fundamental errors within his argument regarding the sufficiency of the factual basis, we grant certiorari to review the factual basis for Defendant's plea.
II. Anders Review
Defendant's counsel has been unable to identify an issue with sufficient merit to support a meaningful argument for relief and asks this Court to review the record. Counsel has shown that she complied with Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his right to file arguments with this Court and providing Defendant with the necessary documents.
Defendant has not filed arguments on his own behalf with this Court. In accordance with Anders, we fully examined the record for issues of merit. We have been unable to find prejudicial error.
III. Factual Basis
Citing State v. Agnew, 361 N.C. 333, 643 S.E.2d 581 (2007), Defendant argues the factual basis for the plea was insufficient to support his plea. We disagree.
The trial court “may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea .” N.C. Gen.Stat. § 15A–1022(c) (2011). The trial court may consider any information properly brought to its attention. Agnew, 361 N.C. at 336, 643 S.E.2d at 583.
In Agnew, the Court found the information insufficient to establish a factual basis where the State made no presentation of the factual basis prior to the trial court's acceptance of the plea. Our Supreme Court held that “the transcript [of plea], defense counsel's stipulation, and the indictment taken together did not contain enough information[.]” Agnew, 361 N.C. at 337, 643 S.E.2d at 584.
In the present case, the State presented a factual basis prior to the acceptance of the plea: that Johnnie Cheeks (Cheeks) would have testified that he saw Clifford Clarke (Clarke) and Defendant struggling on the ground; that Juan Joseph (decedent) was standing next to them and told Cheeks that “[t]his guy is trying to rob [Clarke][;]” and that the decedent shot at Defendant. The State further noted that when Clarke was interviewed, both at the scene and at the police station, Clarke identified Defendant as the man who robbed him.
In addition, the trial court heard opening statements from counsel and testimony from the decedent's mother, a forensic pathologist, a friend of Defendant, and a police officer responding to an altercation between the friend and Defendant that occurred a day before the robbery.
The trial court also had the indictments charging Defendant with first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a felon. The robbery indictment alleged that Defendant, using a gray and black-colored pistol, took personal property from Clarke in the value of $2,000.00. The possession of a firearm by a felon indictment alleged that Defendant had been previously convicted of felony common law robbery in 2000, and that Defendant possessed a hand gun on 4 October 2008.
This constitutes sufficient information to determine there was a factual basis for the guilty plea. The trial court did not err in accepting Defendant's plea.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).