IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1249
Filed: 6 August 2019
Buncombe County, Nos. 17CRS81131-33
STATE OF NORTH CAROLINA
v.
DMITRY KONAKH
Appeal by Defendant from judgment entered 10 April 2018 by Judge J. Thomas
Davis in Buncombe County Superior Court. Heard in the Court of Appeals 10 April
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Candace A.
Hoffman, for the State.
Office of the Appellate Defender, by Emily Holmes Davis, for Defendant-
Appellant.
COLLINS, Judge.
Defendant appeals from an order denying his Motion to Withdraw Plea and
Motion for Appropriate Relief. Defendant argues that the trial court erred by denying
the motions because circumstances demonstrate that the withdrawal of Defendant’s
guilty plea would prevent manifest injustice. We affirm.
I. Factual Background and Procedural History
On 10 April 2018, Defendant pled guilty to felony possession with intent to
manufacture, sell, or deliver marijuana; felony possession of marijuana; and felony
STATE V. KONAKH
Opinion of the Court
maintaining a vehicle for controlled substance. During the plea hearing, Defendant
admitted to transporting and delivering approximately three pounds of marijuana to
Asheville; answered affirmatively when asked by the court if he understood the felony
charges to which he was pleading guilty; and answered affirmatively when asked by
the court if he was, in fact, guilty of all three felony charges. The court consolidated
Defendant’s three convictions for judgment, sentenced Defendant to a term of 6 to 17
months’ imprisonment, suspended the sentence, and placed Defendant on supervised
probation for 24 months. The court also assessed $972.50 in costs, ordered Defendant
to complete 72 hours of community service within the first 150 days, and required
Defendant to report for an initial substance abuse assessment.
On 12 April 2018, Defendant filed a Motion to Withdraw Plea and Motion for
Appropriate Relief (“Motion”), alleging that he “felt dazed and confused at the time of
the plea due to lack of sleep and due to medications he was taking;” “did not
understand he was pleading guilty to three felonies and . . . did not understand what
three felonies being consolidated into one judgment meant;” “did not feel he had
appropriate time to consider the plea agreement and felt pressured to make a decision
regarding his plea;” and believed his decision to plead guilty would “have negative
employment ramifications . . . that he was not aware of at the time he entered his
plea.”
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Opinion of the Court
On 16 April 2018, the Motion was heard in superior court. At the hearing,
when the State asked Defendant if he had three pounds of marijuana in his car on
the date of the offense, Defendant replied, “Yea, I guess.” Defendant testified that
“nobody threatened or coerced” him into taking a plea, and that he was not promised
anything for taking the plea. When asked if he understood what crimes he was
charged with and whether he had discussed possible defenses with his attorney,
Defendant replied “yes” and “yes, sir.” Moreover, when Defendant was asked
whether, at the time of the plea hearing, he understood that he was pleading guilty
to three felony charges, Defendant relied “yes.” Despite these statements and
admissions, however, when asked by the State whether he was asserting his legal
innocence, Defendant replied, “I am now.”
At the conclusion of the hearing, the court announced extensive findings of fact
in support of its conclusion that the Motion was without merit, and denied the Motion.
On 24 April 2018, the court entered a written order reflecting its ruling from the
bench. The court made the following written findings of fact:
....
2. Based on the testimony of the Defendant, as well as the
observations and understandings of the Court regarding
his trial, the Defendant was not only aware of the factual
circumstances against him, he was also aware of the pleas
that he had been offered to him by the State and that the
Defendant basically simply took a position of not doing
anything until the trial date.
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Opinion of the Court
3. On the morning of April 10, 2018, the Court heard the
Defendant’s Motion to Suppress. That Motion to Suppress
was denied prior to the Court’s lunch recess at 12:30 pm
and that the State was ready to proceed with the
Defendant’s trial. Following the denial of the Defendant’s
Motion to Suppress but prior to the lunch recess, the
Defendant was given an opportunity to consider whether
to accept a plea offer or go to trial. The Court recessed from
12:30 until 2:00 to give the Defendant an opportunity to
consider what was available to him and also to consider
whether he wanted to proceed at trial. Furthermore, the
Court paused for a period of time up to 15 to 30 minutes,
from 2:00 to 2:30, to allow the Defendant to further talk
with his attorney and consider whether or not he wanted
to plead in this matter.
4. On April 10, 2018 the Defendant appeared before the
Court and answered the questions as given to him both
orally and written and pursuant to the transcript of the
plea.
5. The Defendant at that time answered those questions
clearly, appropriately, and at that time did not exhibit any
indications that he was dizzy and he stood through the
whole transcript -- during the whole time that the plea was
offered to him.
6. The Court did not observe any condition of him that
would indicate that he was in any way dizzy, nauseous,
sick, or confused. The Defendant answered the Court’s
questions clearly and appropriately throughout the
transcript, even pausing at one time to talk to his attorney
about one of the questions.
7. Throughout the entire duration of the plea, the
Defendant did not indicate through counsel or directly with
the Court that he was dizzy in any respects. At the
conclusion of the plea the Defendant asked to speak
directly with the Court. During the time the Defendant
spoke on his behalf directly to the Court, the Defendant
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Opinion of the Court
spoke both logically and clearly setting out positions that
he was taking in regard to the matter before the Court
including admitted responsibility for the charges that he
had plead guilty to.
8. The Defendant sought to withdraw his plea after this
Court had sentenced him.
9. The Court finds the contentions set forth in the
Defendant’s Motion for Appropriate Relief filed by the
Defendant on April 12, 2018 including that the Defendant
was dizzy, nauseous, sick, confused, and did not
understand the questions are not credible. It appears to
the Court that the Defendant is merely changing his mind
after entering into the plea freely and voluntarily and
understandingly.
10. The Court also finds that while the Defendant was on
cross-examination by the State regarding these matter[s],
he indicated that he did not remember various questions
asked of him by the Court during the plea. The Court finds
his testimony to be untrue and that the Defendant simply
does not want to remember those answers, not that he
doesn’t remember them.
11. The Court finds that the Defendant’s appearance,
behavior, and ability to communicate with the Court on
April 10, 2018, when the plea was entered, were identical
to that on April 16, 2018, when the Court heard the
Defendant’s Motion for Appropriate Relief.
12. The Court renews all the plea adjudication findings
that were previously discussed on April 10, 2018.
13. The Defendant entered into and accepted the plea
arrangement on April 10, 2018 freely, voluntarily, and
understandingly.
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Opinion of the Court
14. The Defendant’s plea was not entered into in haste,
under coercion or at a time when the Defendant was
confused.
15. The Court further finds the following in regards to the
factors set forth in State v. Meyer, 330 N.C. 738, 742-43,
412 S.E.2d 339, 342 (1992); The Defendant did not assert
his legal innocence on April 10, 2018 during the plea or in
his filed Motion for Appropriate Relief; The State’s case
and the evidence against the Defendant was
insurmountable. At a previous hearing evidence was
presented that State and law enforcement had placed a
GPS tracker within the boxes where the marijuana was
located, and they were tracking both the Defendant as well
as the vehicle he was driving at the time. Law enforcement
knew and had verified that marijuana was contained in the
boxes before the Defendant took possession, and law
enforcement conducted surveillance on the Defendant the
entire time the marijuana was in his possession.
Furthermore, the marijuana was found by the officer at the
time that the Defendant was pulled over. In addition, the
Defendant admitted to possessing and transporting
marijuana to officers; throughout the entire time the
Defendant’s charges have been pending, he has been
represented by counsel. The Defendant has been
represented by his own Counsel which was retained in
December and that counsel is certainly competent and has
represented him as such throughout the entire process
including filing and arguing various motions before the
Court.
Upon its findings, the court concluded:
....
2. Where a guilty plea is sought to be withdrawn by the
defendant after sentencing, it should be granted only to
avoid manifest injustice; State v. Handy, 326 N.C. 532, 391
S.E.2d 159 (1990).
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Opinion of the Court
3. Based on the above Findings of Fact the Court finds as
a matter of law that no manifest injustice exist[s].
4. The Court concludes as a matter of law that the Motion
is without merit and that it is not supported by any facts
in any respects, thus there is no manifest injustice by
denying the Defendant’s motion.
Based upon the findings of fact and conclusions of law, the trial court denied
the Motion. From the trial court’s order denying the Motion, Defendant appeals.
II. Discussion
Defendant argues that the trial court erred by denying his Motion because the
circumstances demonstrate that withdrawal of his plea would prevent manifest
injustice. We disagree.
A. Standard of Review
When a defendant seeks to withdraw a guilty plea, and the “defendant’s motion
to withdraw his plea was made post-sentence, it is properly treated as a motion for
appropriate relief.” State v. Monroe, 822 S.E.2d 872, 875 (N.C. Ct. App. 2017)
(citation omitted). When reviewing “a trial court’s findings on a motion for
appropriate relief . . ., [the] findings are binding if they are supported by competent
evidence and may be disturbed only upon a showing of manifest abuse of discretion.”
State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998) (citations
omitted). Unchallenged findings of fact are “presumed to be supported by competent
evidence and are binding on appeal.” State v. Evans, 251 N.C. App. 610, 613, 795
S.E.2d 444, 448 (2017) (brackets and citations omitted). “[T]he trial court’s
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conclusions of law are fully reviewable on appeal.” State v. Johnson, 126 N.C. App.
271, 273, 485 S.E.2d 315, 316 (1997).
B. Analysis
“When a defendant seeks to withdraw a guilty plea after sentencing, his motion
should be granted only where necessary to avoid manifest injustice.” State v. Suites,
109 N.C. App. 373, 375, 427 S.E.2d 318, 320 (1993) (citations omitted). “Some of the
factors which favor withdrawal include whether the defendant has asserted legal
innocence, the strength of the State’s proffer of evidence, the length of the 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.” State v. Handy, 326 N.C. 532, 539,
391 S.E.2d 159, 163 (1990) (citations omitted). “Misunderstanding of the
consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for
consideration.” Id. “A plea is voluntary and knowing if it is made by someone fully
aware of the direct consequences of the plea.” Wilkins, 131 N.C. App at 224, 506
S.E.2d at 277 (citations omitted). Moreover, “[i]n cases where there is evidence that
a defendant signs a plea transcript and the trial court makes a careful inquiry of the
defendant regarding the plea, this has been held to be sufficient to demonstrate that
the plea was entered into freely, understandingly, and voluntarily.” Id. (citations
omitted).
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Opinion of the Court
Defendant challenges just two of the trial court’s 15 findings of fact.
Specifically, Defendant challenges finding 13, that he “entered into . . . the plea . . .
freely, voluntarily, and understandingly,” and finding 14, that his “plea was not
entered into in haste, under coercion or at a time when the Defendant was confused.”
Defendant does not challenge the court’s remaining 13 findings, which are thus
binding on appeal. Evans, 251 N.C. App. at 613, 795 S.E.2d at 448.
Defendant argues that his plea should be withdrawn because he (1) is innocent,
(2) pled guilty in haste, and (3) pled guilty in confusion and “based on the erroneous
belief that all three convictions would be consolidated into a single conviction.”
Defendant’s claim of innocence is belied by the record, which indicates that
Defendant admitted at the hearing on his Motion that he possessed three pounds of
marijuana on the date of the offense. Moreover, the trial court found that Defendant
did not assert his legal innocence at the plea hearing or in his filed Motion for
Appropriate Relief, and Defendant did not challenge this finding, which is thus
binding on appeal. Id. Accordingly, Defendant’s claim that his innocence requires
the withdrawal of his plea is meritless.
Defendant next claims that he pled guilty in haste, and that he had “less than
10 minutes” to think about the plea. However, the court found that Defendant had
approximately two hours to consider his options. Defendant did not challenge this
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finding, which is therefore binding on appeal, id., rendering Defendant’s claim that
he pled guilty in haste also unavailing.
Lastly, Defendant claims that he pled guilty in confusion and based on a
misunderstanding of the law, specifically claiming that he erroneously believed “that
all three convictions would be consolidated into one conviction.” However, the
transcript from the plea hearing reveals that the trial court made a careful inquiry of
Defendant regarding his decision to plead, the accuracy of which Defendant
confirmed by executing a Transcript of Plea form. These two things demonstrate that
the plea was entered into knowingly, voluntarily, and with an understanding of the
direct consequences of the plea. State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d
245, 248 (2002); Wilkins, 131 N.C. App at 224, 506 S.E.2d at 277. Moreover, the trial
court found Defendant’s contentions that he was “confused and did not understand
the questions” during the plea hearing “not credible[,]” and Defendant did not
challenge this finding, which is thus binding on appeal. Evans, 251 N.C. App. at 613,
795 S.E.2d at 448. Defendant’s claim that he pled guilty in confusion and based on a
misunderstanding of the law is therefore also meritless.
III. Conclusion
Since Defendant was represented by competent counsel, had ample time to
consider and discuss the plea with his attorney, and was thoroughly questioned by
the trial court about his decision to plead and the effects of his decision to plead guilty
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to three criminal charges, we conclude that Defendant is unable to establish manifest
injustice and unable to show that the trial court erred by denying his Motion. As
Defendant entered into the plea knowingly, voluntarily, and with an understanding
of the direct consequences, Wilkins, 131 N.C. App at 224, 506 S.E.2d at 277, we
determine that the trial court properly denied Defendant’s Motion.
AFFIRMED.
Judges BRYANT and STROUD CONCUR.
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