Opinion
No. COA10-708
Filed 15 February 2011 This case not for publication
On writ of certiorari to review judgment dated 30 September 2009 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 7 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Richard Croutharmel for Defendant.
Nash County No. 09 CRS 53432.
On 10 August 2009, Defendant James Melvin Smith was indicted on one count of common law robbery. The indictment alleged, in pertinent part:
[T]he defendant named above unlawfully, willfully and feloniously did steal, take, and carry away another's personal property, a purse containing $250.00 in U.S. Currency, having an approximate value of $250.00, from the person and presence of Jackie Parker Richardson by means of an assault upon her consisting of the forcible and violent taking of the property.
On 30 September 2009, pursuant to a plea arrangement, Defendant pled guilty to common law robbery. In exchange for the plea, the State stipulated to a mitigating factor and agreed to dismiss a pending habitual felon indictment. At the plea hearing, the trial court examined Defendant in accordance with the requirements of N.C. Gen. Stat. § 15A-1022. The trial court then asked Defendant the following questions:
THE COURT: Do you agree . . . that there are sufficient facts to support your plea of guilty, sir?
[DEFENDANT]: Yes, sir.
THE COURT: And do you consent to allowing the prosecutor to summarize the evidence against you at this time?
[DEFENDANT]: Yes, sir.
Thereafter, the prosecutor gave the following summary of the factual basis for the plea:
[T]his happened on June 5th of this year. Officer Ballard with the Rocky Mount Police Department responded to a call on Luper Street. He spoke with a Ms. Richardson, the victim in this case. She stated that a black male approached her and asked if she needed any help and then grabbed her purse and fled the scene. Her brother was also there. Gave the same account, gave a description of the individual. And he stated that he took off chasing after him and the suspect fell down on the ground while he was running and dropped the purse. They were able to retrieve that and she was able to recover all of her belongings. A little while later, Ms. Richardson, the victim, noticed the Defendant as she was driving through town and police went and were able to apprehend him. They prepared a line-up. I believe Mr. Parker picked him out — the brother picked him out with 100% certainty of the line-up and Ms. Richardson, who had seen him on the side of the road and pointed out, but once they did a line-up, she picked him out with 90% certainty. Nonetheless, that would be the sum of the evidence for the State.
Following the prosecutor's summary of the evidence, defense counsel remarked that "the purse was sitting away from [the victim] actually on the table beside her and [Defendant] allegedly came up and asked if she needed help and then grabbed the purse. It was not on her person, so it wasn't about violence."
The trial court found a factual basis to support Defendant's plea and sentenced Defendant to twenty-three to twenty-eight months imprisonment.
Defendant appealed the trial court's judgment, but the appeal was dismissed on 8 April 2010. On 12 April 2010, this Court granted Defendant's petition for writ of certiorari to review the issue of whether the trial court erred in accepting Defendant's guilty plea.
On appeal, Defendant first argues that the trial court erred in accepting his guilty plea to common law robbery because the factual basis for the plea presented by the State was insufficient as a matter of law to support the guilty plea.
Pursuant to N.C. Gen. Stat. § 15A-1022(c), prior to accepting a guilty plea, a trial court must determine that there is a factual basis for the plea.
This determination may be based upon information including but not limited to:
(1) A statement of the facts by the prosecutor.
(2) A written statement of the defendant.
(3) An examination of the presentence report.
(4) Sworn testimony, which may include reliable hearsay.
(5) A statement of facts by the defense counsel.
N.C. Gen. Stat. § 15A-1022(c) (2009). Such information is sufficient to establish a factual basis for accepting a defendant's guilty plea where the information establishes the essential elements of the charged offense. State v. Poore, 172 N.C. App. 839, 841-42, 616 S.E.2d 639, 641 (2005).
"Common law robbery requires proof of four elements: (1) felonious, non-consensual taking of (2) money or other personal property (3) from the person or presence of another (4) by means of force." State v. Robertson, 138 N.C. App. 506, 508, 531 S.E.2d 490, 492 (2000). Defendant concedes that there "arguably" was a sufficient factual basis for the first three elements of common law robbery, but asserts that there was no factual basis to support a finding of the required element of force.
This Court has held that force can be actual or constructive and that constructive force exists "if the defendant, by words or gesture, has placed the victim in such fear as is likely to create an apprehension of danger and thereby induce her to part with her property for the sake of her person." Id. at 510, 531 S.E.2d at 493.
Based on our review of the record, the trial court considered the following information in determining that a factual basis existed for accepting Defendant's plea: the summary of facts by the prosecutor, which included a statement that Defendant "asked if [the victim] needed any help and then grabbed her purse[;]" the Transcript of Plea, which contained a statement by Defendant that he agreed there were sufficient facts to support his plea of guilty; defense counsel's statement that "the purse was sitting away from [the victim] actually on the table beside her and [Defendant] allegedly came up and asked if she needed help and then grabbed the purse. It was not on her person, so it wasn't about violence[;]" the indictment, which stated that Defendant took the victim's property "by means of an assault upon her consisting of the forcible and violent taking of the property[;]" and a letter from Defendant to the trial court dated 29 September 2009. We conclude that this information taken together contains sufficient evidence of the elements of common law robbery and provided enough information for an independent judicial determination of Defendant's actual guilt in this case. Although defense counsel stated that "it wasn't about violence[,]" that statement does not raise any serious question as to whether the force element of robbery was satisfied. Defense counsel's statement merely indicates his position that actual force was not used, but does not address, or dispute, the existence of constructive force. As such, we conclude that there was a sufficient factual basis for the trial court to accept Defendant's plea. Defendant's argument is overruled.
Defendant next argues that his judgment should be vacated based on the Fourth Circuit Court of Appeals decision in United States v. Mastrapa, 509 F.3d 652 (4th Cir. 2007). Initially, we note that the decision in Mastrapa applied Federal Rule of Criminal Procedure 11(b)(3) and is not binding on this Court. Enoch v. Inman, 164 N.C. App. 415, 420, 596 S.E.2d 361, 365 (2004) (noting that "North Carolina appellate courts are not bound, as to matters of federal law, by decisions of federal courts other than the United States Supreme Court"). Further, as pointed out by the State, the facts in Mastrapa are easily distinguishable from those in this case. In Mastrapa, the Fourth Circuit held that the district court erred in accepting the defendant's plea because there was no evidence of an essential element of the charged offense and the defendant did not voluntarily choose to enter an Alford plea. Mastrapa, 509 F.3d 652. In this case, however, Defendant stated under oath that he agreed there were sufficient facts to support his plea of guilty and that he was, in fact, guilty. Accordingly, Defendant's argument based on Mastrapa is overruled.
Defendant also argues that his guilty plea was improperly accepted because "[i]t is not altogether clear Defendant knew he could deny all charges and go to trial." However, this argument is belied by Defendant's statements under oath that he knew he had the right to plead not guilty and be tried by a jury, that at such trial he would have the right to confront and cross-examine witnesses, and that by pleading guilty he was giving up these and other valuable constitutional rights to a jury trial.
Finally, Defendant speculates on the effects of some "possible" advice Defendant received from his trial counsel. However, as no evidence of this advice appears in the record, we overrule this argument.
Based on the foregoing, the judgment of the trial court is
AFFIRMED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).