Opinion
No. COA12–1556.
2013-06-4
STATE of North Carolina v. Ricky Donald ROBINSON.
Attorney General Roy Cooper, by Assistant Attorney General Scott Stroud, for the State. Bryan Gates for Defendant–Appellant.
Appeal by Defendant from judgment entered 7 August 2012 by Judge Tanya T. Wallace in Superior Court, Union County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Scott Stroud, for the State. Bryan Gates for Defendant–Appellant.
McGEE, Judge.
Ricky Robinson (Defendant) was convicted of breaking and/or entering and larceny of a motor vehicle. Defendant then stipulated to his habitual felon status. Defendant appeals.
We first address whether Defendant's appeal is properly before this Court. Defendant's sole argument is that the trial court erred in failing to “address [D] efendant personally before the guilty plea as required by N.C. Gen.Stat. § 15A–1022(a).” Defendant “does not have an appeal as a matter of right to challenge the court's acceptance of his guilty plea.” State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987).
Defendant requested his brief be considered a petition for writ of certiorari. Defendant's request does not follow proper appellate procedure under N.C.R.App. P. 21(b) and (c). However, to “prevent manifest injustice to a party,” this Court may “suspend or vary the requirements” of the rules of appellate procedure. N.C .R.App. P. 2. We treat Defendant's appeal as a petition for writ of certiorari to prevent manifest injustice to 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 Bolinger, 320 N.C. at 601–02, 359 S.E.2d at 462 (granting 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 that Defendant asserts fundamental errors within his argument regarding the procedures in accepting his stipulation, we grant certiorari to review the issue.
[A] superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and:
(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;
(2) Determining that he understands the nature of the charge;
(3) Informing him that he has a right to plead not guilty;
(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;
(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;
(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge[.]
N.C. Gen.Stat. § 15A–1022(a) (2011).
Stipulation by a defendant, “in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea.” State v. Gilmore, 142 N.C.App. 465, 471, 542 S.E.2d 694, 699 (2001) (reversing an habitual felon conviction).
In the case before us, Defendant stipulated to his status as an habitual felon, but the trial court did not make the inquiries required by N.C. Gen.Stat. § 15A–1022(a). The State concedes the trial court “did not strictly comply” with the statute. Defendant's conviction for attaining the status of habitual felon must be reversed.
Because Defendant's conviction on habitual felon status affected his sentence for the other convictions, we remand for resentencing.
Reversed and remanded. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).