Opinion
No. COA08-965.
Filed 19 May 2009.
Gaston County, Nos. 04CRS26148-50, 26153.
Appeal by defendant from judgments entered 7 May 2008 by Judge Jesse B. Caldwell, III in Gaston County Superior Court. Heard in the Court of Appeals 5 May 2009.
Attorney General Roy Cooper, by Special Attorney General G. Patrick Murphy, for the State. Benjamin D. Porter, for defendant-appellant.
Defendant appeals from the trial court's denial of his motion to withdraw his guilty plea to second degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. After careful review, we affirm.
On 13 December 2004, the Gaston County grand jury indicted defendant for first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, felony possession of a schedule VI controlled substance, possession of a stolen firearm, robbery with a dangerous weapon, and felony conspiracy to commit robbery with a dangerous weapon. At the time, defendant was a juvenile, and following a transfer hearing, his case was transferred to superior court. Defendant was represented by Attorney Richard E. Beam, Jr. ("Mr. Beam") at the transfer hearing and throughout the proceedings against him.
On 5 April 2005, defendant entered into a plea arrangement with the State under which he would plead guilty to second degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and provide truthful testimony against his co-defendants. The trial court, after taking a transcript of plea, accepted defendant's plea of guilty and granted a prayer for judgment continued until such time as the State prayed judgment. The State prayed judgment and a sentencing hearing was held on 7 May 2008.
Prior to the sentencing hearing, Mr. Beam filed a motion to withdraw as counsel for defendant. When defendant's case was called for hearing on 7 May 2008, the court first addressed the motion to withdraw filed by Mr. Beam. Defendant had also written the court expressing his dissatisfaction with Mr. Beam, and the trial court allowed defendant an opportunity to be heard. At that time, defendant expressed his desire to have counsel removed and that he be allowed to withdraw his guilty plea. The trial court denied defendant's motion to discharge his attorney and proceeded to the sentencing hearing. Defendant was sentenced as follows: the charges of second degree murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon were consolidated and defendant was sentenced to 115 to 147 months; and 51 to 71 months on the charge of assault with a deadly weapon with intent to kill inflicting serious injury, set to run at the expiration of the preceding active sentence. Defendant appeals. On appeal, defendant contends the trial court erred by failing to conduct an evidentiary hearing into his reasons to withdraw his guilty plea. The State filed a motion to dismiss defendant's appeal, arguing the record does not contain a motion by defendant to withdraw his guilty plea.
We first address whether the defendant moved to withdraw his guilty plea. The trial court allowed defendant to be heard on the motion to withdraw filed by Mr. Beam and defendant's letter to the trial court expressing his dissatisfaction with Mr. Beam. Defendant spoke at length and the following exchange occurred:
THE DEFENDANT: I'm just repeating myself. But I would like to get that letter, if I could, from him and give it to my new — if I can get a new lawyer, get this man off my case. That's what I want. All I want is a fair trial, man. That's all I want. That's all I want. I mean, I got memorandums and all that saying that you all accepted my letters, so obviously you all read them and obviously somebody got the letter, but I guess it ain't proved nothing because this man is still sitting beside me.
THE COURT: All right, sir.
THE DEFENDANT: I explained everything in that letter, everything.
THE COURT: I've read the letter and that's why I brought you in today. All right. Well, thank you.
Mr. Beam, do you want to say anything further?
The court then proceeded to make findings, denied defendant's motion and instructed the clerk to enter an order to that effect. The Gaston County Court Disposition form signed by the judge states that defendant's motion to discharge his attorney and to vacate and set aside his plea is denied. [R. p. 33]. Therefore, we conclude that defendant moved to withdraw his guilty plea and the trial court denied defendant's motion. Accordingly, the State's motion to dismiss is denied. We now address the merits of defendant's appeal.
Our Supreme Court has stated that, generally, a motion to withdraw a guilty plea made before sentencing should be granted with liberality. State v. Handy, 326 N.C. 532, 537, 391 S.E.2d 159 (1990). The trial court should allow a defendant to withdraw his guilty plea upon his showing that "any fair and just reason" exists for such relief. Id. at 539, 391 S.E.2d at 162 (citation omitted). Factors to be considered in ruling on the motion are:
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.
Id. at 539, 391 S.E.2d at 163 (citations omitted). "In reviewing a decision of the trial court to deny defendant's motion to withdraw, the appellate court does not apply an abuse of discretion standard, but instead makes an `independent review of the record.'"
State v Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993) (quoting State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 163 (1990)). Considering the Handy factors as they relate to this case, we conclude defendant was not entitled to withdraw his plea. Unlike Handy, where defendant sought to withdraw his guilty plea the very next day, three years elapsed between entry of defendant's plea and his motion to withdraw his plea.
Defendant argues that this case is analogous to State v. Dickens, 299 N.C. 76, 261 S.E.2d 183 (1980), where our Supreme Court concluded that questions of fact existed and the trial court should have held an evidentiary hearing to resolve the questions of fact. The Court noted that in most cases, references to the verbatim record of the guilty plea proceedings will resolve questions of fact raised by a defendant's motion to withdraw a plea of guilty. Id. at 84, 261 S.E.2d at 188.
We do not find defendant's argument persuasive. In Dickens, there were problems with the transcript of plea which are not present in this case. Here, the transcript of plea, and verbatim transcript of the plea hearing belie any evidence of misunderstanding, confusion or coercion. Defendant stated that he was satisfied with his counsel's services and denied that anyone had caused him to enter his plea against his wishes. Moreover, there is no evidence to establish that defendant did not have competent counsel at all relevant times and proceedings.
We hold defendant has not proffered a "fair and just reason" why he should be allowed to withdraw his guilty plea. Handy, 326 N.C. at 539, 391 S.E.2d at 162. Accordingly, the trial court properly denied defendant's motion to withdraw his plea. Affirmed.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).