Opinion
No. 07-795.
Filed March 18, 2008.
Guilford County Nos. 03CRS93652-53, 04CRS66975-76, 04CRS68303, 04CRS68307-08, 04CRS68312, 04CRS68315, 04CRS68318-19, 04CRS68322-23, 04CRS68325-26.
Appeal by Defendant from judgments entered 26 January 2007 and from order entered 13 February 2007 by Judge John O. Craig, III in Superior Court, Guilford County. Heard in the Court of Appeals 5 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III, for Defendant-Appellant.
Darius Dashawn Rutledge (Defendant) appeals from the denial of his motion to withdraw his Alford plea and from judgments entered upon his plea. For the reasons set forth below, we affirm the trial court's denial of Defendant's motion to withdraw his plea.
Defendant was indicted on charges of possession of a firearm by a felon and misdemeanor carrying a concealed gun on 6 October 2003; and on charges of first-degree murder, first-degree burglary, five counts of robbery with a dangerous weapon, and six counts of second-degree kidnapping on 19 April 2004. The trial court conducted a Rule 24 hearing on 1 June 2004. At the hearing, the State argued that the aggravating circumstance under N.C. Gen. Stat. § 15A-2000(e)(3) applied because Defendant had previously been convicted of second-degree murder. The State further argued that the aggravating circumstance under N.C. Gen. Stat. § 15A-2000(e)(6) applied because Defendant had committed the murder at issue in the present case for pecuniary gain. The trial court determined that the case should proceed as a capital case.
Defendant then pleaded guilty pursuant to an Alford plea on 28 March 2005 to all of the charges except first-degree murder. As part of the plea arrangement, the State agreed to reduce the first-degree murder charge to second-degree murder and also agreed that Defendant would receive a combined sentence of 439 months to 555 months in prison. Pursuant to the plea arrangement, the trial court also ordered that "[p]rayer for judgment [be] continued from term to term until the State prays judgment" to allow Defendant to testify against his co-defendants.
Defendant testified at the trial of co-defendant Fannton Dumu Cummings on 20 April 2006. Subsequently, Defendant's case came on for sentencing on 15 May 2006. At the close of the hearing, the trial court announced Defendant's sentence in accordance with the terms of the plea arrangement and Defendant, through counsel, then asked to be heard. Defendant stated: "Prior to me signing that plea, I was not going to sign a plea. I was going to court to set a trial date. I was coerced into that plea. I'm not accepting it. I do not want to accept that plea." After further inquiry, the trial court instructed the court reporter to strike the entry of the judgments and continued the case to allow Defendant to file a motion to withdraw his plea.
Defendant filed a motion to withdraw his plea on 23 May 2006, and the trial court conducted a hearing on the motion on 10 January 2007. The trial court entered judgments pursuant to the plea arrangement on 26 January 2007 and, in an order entered 13 February 2007, denied Defendant's motion to withdraw his plea. Defendant appeals.
I.
Defendant argues the trial court committed plain error by allowing the case to proceed as a capital case on the basis of the State's proffered aggravating factor under N.C. Gen. Stat. § 15A-2000(e)(3). N.C. Gen. Stat. § 15A-2000(e)(3) (2007) allows the following to be used as aggravating circumstances in a capital case:
The defendant had been previously convicted of a felony involving the use or threat of violence to the person or had been previously adjudicated delinquent in a juvenile proceeding for committing an offense that would be a Class A, B1, B2, C, D, or E felony involving the use or threat of violence to the person if the offense had been committed by an adult.
Defendant argues that because he was a juvenile at the time of his prior conviction of second-degree murder, and because the United States Supreme Court held in Roper v. Simmons, 543 U.S. 551, 161 L. Ed. 2d 1 (2005), that the United States Constitution prohibits the execution of an offender for a crime committed when the offender was less than eighteen years old, the State could not use Defendant's juvenile adjudication as an aggravating factor in the present case. Specifically, Defendant states: "An argument can be made that if someone under eighteen years of age cannot receive the death penalty, then an offense that occurred while an individual was a juvenile should not be used as an aggravating factor to support the death penalty." Defendant further argues that if the State had not proffered this aggravating factor, Defendant "might not have initially [pleaded] guilty in this case."
Despite Defendant's contention that plain error review applies, it is well settled that "`plain error analysis applies only to instructions to the jury and evidentiary matters.'" State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (quoting State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000)), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). In the present case, the issue raised by Defendant's assignments of error does not relate to jury instructions or to evidentiary matters. At the close of the Rule 24 hearing, the trial court merely determined that the State had "forecast evidence of the probable existence of one or more statutory aggravating circumstances" and allowed the case to proceed as a capital case. At that stage of the proceedings, the trial court had not admitted into evidence Defendant's juvenile adjudication. In fact, as our Supreme Court has recognized, a Rule 24 hearing is not a stage of a trial. State v. Chapman, 342 N.C.330, 338, 464 S.E.2d 661, 665 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996). Defendant cites no authority in support of applying plain error analysis under these circumstances, and we find none. We overrule these assignments of error.
Even assuming, arguendo, that we could apply plain error review, Defendant's argument lacks merit. In State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003), our Supreme Court held that the admission of a juvenile adjudication as an aggravating circumstance under N.C.G.S. § 15A-2000(e)(3) did not violate constitutional prohibitions against ex post facto laws even though the defendant's juvenile adjudication predated the amendment to N.C.G.S. § 15A-2000(e)(3) that allowed for the submission of such juvenile adjudications. Id. at 624-27, 565 S.E.2d at 44-46. Thus, pursuant to Wiley and N.C.G.S. § 15A-2000(e)(3), the State may admit certain prior juvenile adjudications as aggravating circumstances. Roper did not affect this holding. In Roper, the United States Supreme Court held that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." Roper, 543 U.S. at 578, 161 L. Ed. 2d at 28. However, nothing in Roper suggests that its holding extends to issues regarding sentence enhancement. The Supreme Court in Roper did not preclude a state from relying on juvenile adjudications as aggravating circumstances during the penalty phase of a death penalty case. Roper did not overrule Wiley, and Defendant's argument lacks merit. Our reasoning is supported by two out-of-state cases that have dealt with this issue. In United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006), cert. denied, ___ U.S. ___, 166 L. Ed 2d 539 (2006), the Eleventh Circuit held as follows:
Our conclusion that youthful offender convictions can qualify as predicate offenses for sentence enhancement purposes remains valid because Roper does not deal specifically-or even tangentially-with sentence enhancement. It is one thing to prohibit capital punishment for those under the age of eighteen, but an entirely different thing to prohibit consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood. Roper does not mandate that we wipe clean the records of every criminal on his or her eighteenth birthday.
Id. at 1243. Similarly, in England v. State, 940 So.2d 389 (Fla. 2006), cert. denied, ___ U.S. ___, 167 L. Ed. 2d 571 (2007), the Florida Supreme Court recognized that in Roper, the Supreme Court "provided a bright line rule for the imposition of the death penalty itself, but nowhere did the Supreme Court extend this rule to prohibit the use of prior felonies committed when the defendant was a minor as an aggravating circumstance during the penalty phase." Id. at 407.
For the reasons stated above, we overrule Defendant's assignments of error.
II.
Defendant also argues the trial court erred by denying his motion to withdraw his Alford plea. We first determine which standard applies to our review of the denial of Defendant's motion to withdraw his plea. "Although there is no absolute right to withdraw a plea of guilty, a criminal defendant seeking to withdraw such a plea, prior to sentencing, is `"generally accorded that right if he can show any fair and just reason."`" State v. Marshburn, 109 N.C. App. 105, 107-08, 425 S.E.2d 715, 717 (1993) (quoting State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (citation omitted)). However, "`where the guilty plea is sought to be withdrawn by the defendant after sentence, it should be granted only to avoid manifest injustice.'" Handy, 326 N.C. at 536, 391 S.E.2d at 161 (citation omitted).
Defendant argues he sought to withdraw his plea prior to sentencing, and therefore had to show a fair and just reason, while the State asserts that the higher standard applies because Defendant sought to withdraw his plea only after his sentence was pronounced. While this determination is somewhat academic given that Defendant failed to meet either test, we hold that Defendant sought to withdraw his plea prior to sentencing and that the lower standard applies.
"`[D]uring a session of the court a judgment is in fieri and the court has authority in its sound discretion, prior to expiration of the session, to modify, amend or set aside the judgment.'" State v. Mead, ___ N.C. App. ___, ___, 646 S.E.2d 597, 600 (2007) (quoting State v. Edmonds, 19 N.C. App. 105, 106, 198 S.E.2d 27, 27 (1973)). In this case, after the trial court announced Defendant's sentence, Defendant, through counsel, asked to be heard, and Defendant then informed the trial court that he did "not want to accept that plea." After further inquiry, the trial court instructed the court reporter to strike the entry of the judgments. The trial court continued the case to allow Defendant to file a motion to withdraw his plea. Pursuant to Mead, the trial court had authority to set aside the judgments. See Mead, ___ N.C. App. at ___, 646 S.E.2d at 600. After the trial court did so, no judgments existed and Defendant thereafter made his motion to withdraw prior to the entry of the judgments which he now appeals.
In reviewing a pre-sentence motion to withdraw a guilty plea, "the appellate court does not apply an abuse of discretion standard, but instead makes an `independent review of the record.'" Marshburn, 109 N.C. App. at 108, 425 S.E.2d at 718 (quoting Handy, 326 N.C. at 539, 391 S.E.2d at 163). Our Court "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 [a] motion to withdraw." Id. In reviewing such a motion, this Court may consider
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. Prejudice to the State is a germane factor against granting a motion to withdraw.
Handy, 326 N.C. at 539, 391 S.E.2d at 163 (citations omitted). A trial court's "findings of fact are conclusive if they are supported by the evidence" or if they are not properly challenged on appeal. State v. Steen, 352 N.C. 227, 237-38, 536 S.E.2d 1, 7-8 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
Defendant argues there was sufficient evidence of several of the Handy factors and further asserts that he demonstrated a fair and just reason for the withdrawal of his plea. Defendant argues that he successfully asserted his legal innocence, had an "early change of heart," and entered the plea in haste and as a result of confusion and coercion. With respect to Defendant's assertion of legal innocence, Defendant argues there was insufficient evidence to support the trial court's finding that Defendant had not effectively asserted his innocence. However, the trial court did not make this finding of fact. Rather, the trial court found as follows: "That . . . Defendant has asserted that he is innocent of the crime contained in the transcript. This Court has questioned . . . Defendant upon the legal theories of acting in concert. . . . Defendant answered that he had been informed of that legal concept by his attorneys."
In support of this factor, Defendant points to his testimony at the hearing on the motion to withdraw that he had maintained his innocence with respect to all of the charges against him since the day of his arrest. Defendant also argues that his entry of an Alford plea demonstrates that he maintained his claim of legal innocence. However, in State v. Davis, 150 N.C. App. 205, 562 S.E.2d 590 (2002), the defendant testified that he felt he was not guilty of second-degree murder, and our Court held this was an insufficient assertion of legal innocence. Id. at 207, 562 S.E.2d at 592. In Davis, our Court relied on State v. Graham, 122 N.C. App. 635, 471 S.E.2d 100 (1996), which is also similar to the present case. In Graham, the defendant stated he "`always felt that he was not guilty,'" and our Court held that his assertion was not a "`concrete assertion of innocence[.]'" Id. at 637, 471 S.E.2d at 102. In the present case, one of Defendant's attorneys, Brian Tomlin (Mr. Tomlin), testified that "in [Defendant's] mind then and probably in his mind right now, he's not guilty of any murder, even though the law says otherwise." Moreover, Mr. Tomlin was asked the following question: "Throughout your representation of [Defendant], is it fair to say [Defendant] always felt that he was not guilty of the murder charge?" In response, Mr. Tomlin testified: "I don't know if he felt that he was not guilty of the murder charge as much as he felt that he shouldn't be guilty of the murder charge, or if he couldn't quite get his mind around [the] felony murder rule and acting in concert." It appears that although Defendant stated he was not guilty of the charges, he did not make a sufficient assertion of legal innocence. However, even if Defendant did assert his legal innocence, the remaining factors weigh in favor of the denial of Defendant's motion.
Defendant also argues there was insufficient evidence to support the trial court's finding that Defendant's motion to withdraw was not timely. However, again, the trial court did not make such a finding. Rather, the trial court found
[t]hat this plea agreement was entered into on March 28, 2005. That . . . Defendant contends that he wrote a letter to his attorney Michael Troutman the next day. Mr. Troutman has testified that he had no recollection of ever receiving any such letter. That after the entry of this plea agreement, . . . Defendant continued to meet with his attorneys Michael Troutman and Brian Tomlin, as well as the Assistant District Attorney assigned to these matters. During those meetings, . . . Defendant never expressed his desire to withdraw the entry of the plea. . . . Defendant also had a year to raise this issue. It was not raised in those meetings.
Defendant does not challenge the evidentiary support for this finding, and we hold that it is supported. Moreover, this finding and the evidence demonstrate that even if Defendant changed his mind soon after he entered the plea, Defendant did not advise his attorneys or the Court of his desire to withdraw his plea for over a year after he entered it, despite multiple opportunities to do so.
In State v. Robinson, 177 N.C. App. 225, 628 S.E.2d 252 (2006), our Court recognized:
This 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. See State v. Graham, 122 N.C. App. 635, 637-38, 471 S.E.2d 100, 101-02 (1996) (denying the defendant's motion to withdraw guilty plea made more than one month after its entry); Marshburn, 109 N.C. App. at 109, 425 S.E.2d at 718 (denying the defendant's motion to withdraw guilty plea made at least eight months after entry of the guilty plea).
Robinson, 177 N.C. App. at 229-30, 628 S.E.2d at 255. In Robinson, our Court held that the defendant's delay of more than three months in filing his motion to withdraw his plea supported the denial of the motion. Id. at 230, 628 S.E.2d at 255. When compared with the length of the delays in Robinson, Graham and Marshburn, the more than one year delay in the present case clearly supports the denial of Defendant's motion.
Defendant also argues the trial court erred by finding that Defendant did not enter his plea in haste or as the result of confusion or coercion. However, the record demonstrates that this finding was supported. Based upon the transcript of Defendant's plea hearing, it appears that Defendant was fully aware of all of the charges to which he was pleading guilty, and there is no indication that he entered the plea in haste. Moreover, both of Defendant's attorneys testified at the withdrawal hearing that they had discussed the terms of the plea arrangement with Defendant prior to the entry of Defendant's plea. Furthermore, although Defendant testified that his mother persuaded him to take the plea, Defendant did not testify that he was under pressure that overbore his own will, as the defendant did in Handy. See Handy, 326 N.C. at 541, 391 S.E.2d at 164. The persuasion in the present case did not rise to the level of coercion.
We also note that Defendant does not contest the trial court's findings that Defendant had competent counsel at all relevant times and that the State's proffer of evidence was very strong. Furthermore, even had Defendant made a showing of a fair and just reason to withdraw his plea, his showing was refuted by the State's evidence of prejudice to its case by reason of the withdrawal. See Handy, 326 N.C. at 539, 391 S.E.2d at 163. The trial court found as follows: "That the State has presented concrete evidence of prejudice in this matter. The leverage that the State once had against other co-defendants to testify against . . . Defendant is now gone." Defendant argues that this finding was unsupported by the evidence. However, Mr. Tomlin testified that Defendant testified at the trial of one of Defendant's co-defendants, Fannton Dumu Cummings. In fact, as part of the record on appeal in the present case, Defendant submitted the transcript of Defendant's testimony at the trial of Fannton Dumu Cummings. Moreover, the trial court took judicial notice of the disposition of the cases of Defendant's other co-defendants. As a result of Defendant's delay in filing the motion to withdraw his plea, it is clear that the State lost its leverage against Defendant's co-defendants. Thus, the State's case was prejudiced. For all of the reasons stated above, we hold the trial court did not err by denying Defendant's motion to withdraw his plea.
Affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).