Opinion
NO. COA11-42
09-06-2011
STATE OF NORTH CAROLINA v. TRACEY LOVELL TAYLOR
Attorney General Roy A. Cooper, III, by Assistant Attorney General LaToya B. Powell, for the State. Bushnaq Law Office, PLLC, by Faith S. Bushnaq, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Pitt County Nos. 08CRS002357, 011517
Appeal by defendant from judgments entered on or about 6 July 2010 by Judge W. Russell Duke, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 18 July 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General LaToya B. Powell, for the State.
Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for defendant-appellant.
STROUD, Judge.
On 24 March 2008, defendant was indicted for conspiracy to traffic cocaine. On 13 October 2008, defendant was indicted for engaging in a continuing criminal enterprise and possession of a firearm by a felon. On 9 April 2009, defendant entered Alford pleas to the crimes as charged. The trial court sentenced defendant to an active term of 15 to 18 months imprisonment for possession of a firearm by a felon. The trial court continued judgment on the remaining charges until 5 April 2010 or until such time the State prayed judgment. The State prayed judgment and defendant appeared for sentencing on 6 July 2010. Defendant was sentenced to 175 to 219 months for conspiring to traffic cocaine by possession and 100 to 129 months for continuing criminal enterprise. Defendant moved to withdraw his guilty plea, and the trial court denied his motion. Defendant gave notice of appeal in open court and filed written notice of appeal on 7 July 2010.
Defendant argues the trial court erred by summarily denying his motion to withdraw his guilty plea, which he made after the trial court pronounced his sentence. Defendant contends the trial court was required to treat his motion as a motion for appropriate relief and hold an evidentiary hearing to resolve questions of fact arising from the motion.
"A post-sentencing motion to withdraw a plea is a motion for appropriate relief." State v. Salvetti, ____ N.C. App. ____, ___ 687 S.E.2d 698, 703 (citation omitted), disc. review denied, 364 N.C. 246, 699 S.E.2d 919 (2010) . "Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit." N.C. Gen. Stat. § 15A-1420(c)(1) (2009). In State v. Dickens, 299 N.C. 76, 261 S.E.2d 183 (1980), our Supreme Court stated that "in most cases reference to the verbatim record of the guilty plea proceedings will conclusively resolve all questions of fact raised by a defendant's motion to withdraw a plea of guilty and will permit a trial judge to dispose of such motion without holding an evidentiary hearing." Id. at 84, 261 S.E.2d at 188. "Evidentiary hearings are required in post-conviction proceedings only when necessary to resolve questions of fact." Id.
In this case, defendant presented no questions of fact that needed to be resolved by an evidentiary hearing. Defendant's statement that his attorney told him he would get half of the mandatory sentence if he pleaded guilty is belied by the record. Defendant clearly indicated that he had not been promised anything in exchange for his plea beyond the terms read to him in open court. The trial court questioned defendant several times during the plea hearing as to whether he had any questions about his case, and defendant repeatedly responded, "No, sir." Furthermore, defendant essentially admitted he did not have an agreement as to sentencing when he stated, "I hope the Court sees fit that I did learn my lesson [and] have some kind of leniency on me." Thus, we conclude, under the circumstances, it was not error for the trial court to deny defendant's motion without an evidentiary hearing.
Moreover, "where the guilty plea is sought to be withdrawn by the defendant after sentence, it should be granted only to avoid manifest injustice." State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (quotation omitted). "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).
In this case, none of the factors are present. Defendant was represented by competent counsel, he admitted his guilt, he indicated he understood the terms recited as being his full plea arrangement, he indicated he had not been promised anything else in exchange for his plea, and he entered the plea of his own free will. Accordingly, we conclude defendant was not entitled to withdraw his guilty plea and the trial court did not err in denying defendant's motion.
AFFIRMED.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).