Opinion
No. COA12–1449.
2013-06-18
STATE of North Carolina v. Jennifer Cheryl BANKS.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Charlotte Gail Blake, for defendant.
Appeal by defendant from judgment entered 13 June 2012 by Judge Julie M. Kepple in Buncombe County District Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Charlotte Gail Blake, for defendant.
ELMORE, Judge.
Jennifer Cheryl Banks (defendant) appeals from judgment entered upon her convictions for felony larceny from a merchant and two counts of misdemeanor larceny. Defendant argues that the State failed to present a sufficient factual basis to support her guilty plea. After careful review, we affirm.
On 13 June 2012, defendant pled guilty pursuant to a plea agreement to felony larceny from a merchant and two counts of misdemeanor larceny. Pursuant to her plea arrangement, the trial court consolidated the charges for judgment and dismissed a pending charge of breaking or entering a motor vehicle. The trial court imposed a suspended sentence of nine to twenty months imprisonment and placed defendant on supervised probation for eighteen months. Defendant appeals pursuant to N.C. Gen.Stat. § 7A–272(d) (2012).
We initially note that defendant does not have an appeal as a matter of right to challenge the trial court's acceptance of her guilty plea. Defendant pled guilty, stipulated that she was a Prior Record Level III for sentencing purposes, and received a sentence from the presumptive range. See N.C. Gen.Stat. § 15A1444 (2011) (listing the issues that a defendant who has pled guilty is entitled to appeal as a matter of right). Accordingly, we grant the State's motion to dismiss defendant's appeal. However, pursuant to N .C. Gen.Stat. § 15A–1444(e) and N.C.R.App. P. 21, defendant has petitioned this Court for a writ of certiorari. We elect to grant defendant's petition and review defendant's argument. See State v. Demaio, ––– N.C.App. ––––, ––––, 716 S.E.2d 863, 866 (2011) (stating that “our Supreme Court has held that when a trial court improperly accepts a guilty plea, the defendant may obtain appellate review of this issue only upon grant of a writ of certiorari”) (citations and quotation marks omitted).
Defendant contends that the trial court erred by determining that there was a factual basis to support her guilty plea to misdemeanor larceny because the State failed to show defendant: (1) intended to permanently deprive the victims of their property; and (2) knew she was not entitled to take the property. We disagree.
“The essential elements of larceny are: (1) the taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property.” State v. Barbour, 153 N.C.App. 500, 502, 570 S .E.2d 126, 127 (2002) (citation omitted). Larceny is a misdemeanor when the value of the property taken does not exceed $1000.00. N.C. Gen.Stat. § 14–72(a) (2012).
Pursuant to N.C. Gen.Stat. § 15A–1022(c) (2012), a trial court “may not accept a plea of guilty ... without first determining that there is a factual basis for the plea.” This determination may be based upon a statement of facts made by the prosecutor and the defendant's stipulation to the existence of a factual basis. See State v. May, 159 N.C.App. 159, 165, 583 S.E.2d 302, 306 (2003). Here, defendant stipulated to the existence of facts to support her plea both in her Transcript of Plea and at her plea hearing. Furthermore, the prosecutor made the following statement summarizing the evidence at defendant's plea hearing:
Your Honor, the misdemeanor larcenies occurred on March 10th at Ingles having a value of $52, a stuffed toy, and on March the 24th from Belks, shoes and wallets having a value of $385. I believe all that was recovered.
The larceny [sic] for the merchant also occurred on March the 10th at Wal*Mart. The defendant went in and cut off the inventory control device on four different watches before she was arrested. There is restitution on the worksheet we've handed up to Wal*Mart in the amount of $95.76.
Defendant expressly declined to add anything further to the prosecutor's summary, and the trial court found that there was a factual basis for the plea.
Defendant contends that the State's summary failed to demonstrate evidence of intent, or that she knew she was not entitled to take the property. However, “[i]ntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (citations omitted). We conclude that the summary of the facts presented by the prosecutor and defendant's stipulations were sufficient to establish a factual basis for defendant's guilty plea and met the requirements of N.C. Gen.Stat. § 15A–1022(c). Accordingly, we affirm.
Affirmed. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).