An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-969
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 11 CRS 1130-31, 86
ROBERT LEWIS WILSON, JR.
On writ of certiorari from judgment entered 23 January 2013
by Judge Linwood O. Foust in Superior Court, Cleveland County.
Heard in the Court of Appeals 29 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ryan C. Zellar, for the State.
Diepenbrock Law Office, P.A., by J. Thomas Diepenbrock, for
Defendant-Appellant.
McGEE, Judge.
Robert Lewis Wilson, Jr. (“Defendant”) pleaded guilty to
possession with intent to sell or deliver a schedule II
controlled substance, sale or delivery of a schedule II
controlled substance, possession with intent to sell or deliver
cocaine, sale or delivery of cocaine, and attainment of habitual
felon status. The trial court consolidated the convictions and
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sentenced Defendant on 23 January 2013 to incarceration for a
term of 92 to 120 months.
Defendant filed a petition for writ of certiorari on 25
October 2013. In this petition, counsel for Defendant
acknowledged that Defendant may not have given timely notice of
appeal and that counsel could not identify an issue that could
properly be raised on appeal. Counsel asked this Court to issue
a writ of certiorari to review the issue of whether the trial
court properly determined there was a factual basis for
Defendant’s plea to attaining the status of habitual felon.
Four days later, Defendant filed an amended petition for writ of
certiorari which is identical to the first petition except for
the addition of a verification. The petition as amended has
been referred to this panel for decision.
In our discretion, we allow the petition and consider
Defendant’s argument that the trial court erred in determining
that a factual basis supported Defendant’s admission to
attaining the status of habitual felon.
“The judge may not accept a plea of guilty or no contest
without first determining that there is a factual basis for the
plea.” N.C. Gen. Stat. § 15A-1022(c) (2013).
This determination may be based upon
information including but not limited to:
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(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.
Id.
In the present case, the habitual felon indictment lists
three prior felony convictions entered during three different
sessions of court based upon offenses committed on 20 August
1992, 7 May 2004, and 9 February 2005. At the plea hearing,
Defendant verbally stated there were facts to support his plea,
that he stipulated to a factual basis for the plea, and that he
consented to the State summarizing the evidence relating to the
factual basis. The State subsequently narrated the facts
supporting Defendant’s habitual felon status arising out of
Defendant’s commission of felony offenses committed in August
1992, May 2004, and February 2005.
Defendant contends that the trial court’s determination
that there was a factual basis for Defendant’s admission to
habitual felon status “is not supported in the record” and that
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the “State’s summary did not provide the factual basis.” For
support, Defendant cites State v. Sinclair, 301 N.C. 193, 270
S.E.2d 418 (1980), and State v. Agnew, 361 N.C. 333, 643 S.E.2d
581 (2007).
In Sinclair, our Supreme Court concluded that a
“defendant’s bare admission of guilt . . . does not provide the
‘factual basis’ contemplated by G.S. 15A-1022(c).” Sinclair,
301 N.C. at 199, 270 S.E.2d at 421. “The statute, if it is to
be given any meaning at all, must contemplate that some
substantive material independent of the plea itself appear of
record which tends to show that [the] defendant is, in fact,
guilty.” Id. at 199, 270 S.E.2d at 421-22.
In Agnew, our Supreme Court considered the same issue and
concluded that “the transcript, defense counsel’s stipulation,
and the indictment taken together did not contain enough
information for an independent judicial determination of [the]
defendant’s actual guilt in the instant case.” Agnew, 361 N.C.
at 337, 643 S.E.2d at 584.
The crux of Defendant’s argument is that the prosecutor for
the State “identified one of the three convictions used for
[habitual felon] status as being the 5 August 2004 conviction
for the sale or delivery of cocaine” and subsequently
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“contradicted her summary of the convictions utilized for the
habitual felon status” when she made the following statement:
And, as to his prior record, the State
counted his points for Assault on a Female
from 2002, Cleveland County, and Assault on
a Female from 2003, Cleveland County as
Class 1 misdemeanors. A series of felony
breaking and enterings and larcenies that do
not include the habitual one from October
15, 1992 here in Cleveland County.
A felonious possession of stolen goods from
May 16, of 2000 here in Cleveland County and
the G felony being sell and delivery of
cocaine August 5, 2004 right here in
Cleveland County.
The offense that was used to elevate him to
habitual for that date was for possession
and not the sell.
However, as the State points out, the prosecutor’s statement
served only to make “clear that the August 5, 2004 charge that
was used to elevate Defendant to habitual felon status . . . was
different from the charge used on [D]efendant’s prior record
level worksheet[.]” Indeed, the record shows that the habitual
felon indictment lists “the felony offense of Possession With
Intent to Sell or Deliver Cocaine” with a conviction date of 5
August 2004. The prior record level worksheet shows a
conviction for “sell/deliver cocaine” on 5 August 2004. The
record does not indicate that the prosecutor contradicted her
summary of the convictions utilized for the habitual felon
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status when she made the foregoing statement. Defendant has not
shown error on this basis.
Affirmed.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).