Opinion
No. COA08-1125
Filed 7 April 2009
Appeal by defendant from judgment entered 5 October 2007 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 March 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Roberta Ouelette, for the State. Mary McCullers Reece, for defendant-appellant.
Mecklenburg County No. 98 CRS 10267.
Shakiel McFadden ("defendant") appeals from the denial of his motion to withdraw a guilty plea. For the reasons stated below, we affirm.
On 31 July 1998, defendant pled guilty to trafficking in cocaine. Pursuant to the terms of the plea agreement, one charge against him was dismissed; the court entered prayer for judgment continued on the remaining charge; and defendant's bonds were unsecured. Upon sentencing, the term was not to exceed a minimum of seventy months in prison with corresponding maximum term of eight-four months. Defendant absconded, failing to appear at his sentencing hearing, and causing the district attorney to file a dismissal with leave on 28 March 2001. On 21 September 2007, after defendant was arrested in New Jersey, the State formally reinstated the trafficking charge. Defendant appeared for sentencing on 5 October 2007 and made an oral motion to withdraw his plea. The court denied the motion and sentenced defendant to a term of seventy to eighty-four months imprisonment.
In his sole assignment of error defendant contends the court erred by denying his motion to withdraw his guilty plea. Our Supreme Court has stated that "a presentence motion to withdraw a plea of guilty should be allowed for any fair and just reason." State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 162 (1990).
Some of the factors which favor withdrawal include whether the defendant has asserted legal innocence, the strength of the State's proffer of evidence, the length of time between entry of the guilty plea and the desire to change it, and whether the accused has had competent counsel at all relevant times. Misunderstanding of the consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for consideration. The State may refute the movant's showing by evidence of concrete prejudice to its case by reason of the withdrawal of the plea.
Id. at 539, 391 S.E.2d at 163 (internal citations omitted). In ruling upon a pre sentence motion to withdraw a plea, "a court must look to the facts of each case to determine whether a defendant has come forward with a fair and just reason to allow withdrawal of his guilty pleas." State v. Meyer, 330 N.C. 738, 743-44, 412 S.E.2d 339, 343 (1992). Rather than reviewing the trial court's decision for an abuse of discretion, an appellate court must conduct its own review of the record and "must itself determine, considering the reasons given by the defendant and any prejudice to the State, if it would be fair and just to allow the motion to withdraw." State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993).
Defendant contends that he made a showing of a fair and just reason for withdrawing his plea. The record shows that the court allowed defendant to speak and state his reasons for seeking to withdraw the plea. Defendant stated:
When I took the plea, I was — I was — I felt that I was coerced by [my] attorney. She was a public defender. She made certain things clear to me that if I would do this, that and the third, then my time would be cut in half. A police officer came to the County Jail. He came to talk to me on seven different occasions, and I gave him everything that they asked me to give them, and he told me that they were going to do this, that and the third for me. But he's not under the juris[diction] — he doesn't have the power to do anything for me. I didn't know that at the time. I was 25 years old. I didn't know that at the time that he doesn't have the power to make these things happen the promises that he made. And I also didn't have no — no lawyer there to get this — get this binded to make sure that he does what he says. So I feel that was coercing in taking my plea, and I want to take it back and I want a jury trial if that — if you can grant me that.
However, defendant's claim that he was coerced into entering the plea is contradicted by his own statements made under oath at the plea hearing that, other than the plea arrangement stated in the plea agreement, no promises or threats had been made to enter the plea against his wishes.
Our independent review of the record compels us to conclude that defendant has not carried his burden of showing a fair and just reason for withdrawing his plea. In deciding whether a motion to withdraw a plea has been properly denied, "[t]his Court has placed heavy reliance on the length of time between a defendant's entry of the guilty plea and motion to withdraw the plea." State v. Robinson, 177 N.C. App. 225, 229, 628 S.E.2d 252, 255 (2006) (citations omitted). The longer the delay, the more compelling the reasons given for seeking withdrawal of the plea must be. Handy, 326 N.C. at 539, 391 S.E.2d at 163 (citing United States v. Barker, 514 F.2d 208, 222 (D.C. Cir) ( en banc), cert. denied, 421 U.S. 1013, 44 L. Ed. 2d 682 (1975)).
In the present case the length of delay of approximately nine years between the entry of the plea and the motion to withdraw the plea is "an extremely lengthy amount of time." See State v. Arias, 186 N.C. App. 294, 296, 650 S.E.2d 458, 460 (2007) (upholding denial of motion to withdraw plea made three years after its entry); see also State v. Graham, 122 N.C. App. 635, 637, 471 S.E.2d 100, 101-02 (1996) (denying the defendant's motion to withdraw guilty plea made nearly five weeks after entry of plea); Marshburn, 109 N.C. App. at 109, 425 S.E.2d at 718 (denying the defendant's motion to withdraw guilty plea made eight months after entry of the guilty plea).
Moreover, with respect to the other Handy factors, defendant has not proclaimed he is innocent. Indeed, he swore under oath at the plea hearing that he was guilty of the offense. The State had strong evidence placing defendant in actual possession of a duffle bag containing 723.16 grams of cocaine. Finally, nothing in the record suggests that counsel's representation of defendant was incompetent. Although defendant may not have understood fully how much assistance would be required of him to constitute "substantial assistance" qualifying him for a reduction in sentence, it does not appear that he was misled. Defendant admits in his brief that he was informed that he "could" receive credit for substantial assistance and that "presumably" he could avoid the mandatory sentence. The record does not indicate that he was promised that he "would" receive credit for substantial assistance or that he "would" avoid the mandatory sentence.
We note that granting defendant's motion to withdraw his guilty plea would likely prejudice the State. There were approximately nine years between defendant's guilty plea and his attempt to withdraw it. In that time, evidence could have been destroyed, witnesses could have become unavailable, and memories may have faded. During the intervening nine years the State was not focused on going to trial, but merely on formally sentencing defendant. Because defendant has not shown a fair and just reason to withdraw his guilty plea, the State is not required to show prejudice; however, we cannot overlook the extremely lengthy gap in time in this case.
Upon our independent review of the record in this case, defendant has failed to demonstrate a fair or just reason to allow the withdrawal of his guilty plea. Accordingly, we hold the court properly denied his motion to withdraw the plea.
Affirm.
Judges MCGEE and HUNTER, ROBERT C. concur.
Report per Rule 30(e).