IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-296
Filed: 18 October 2016
New Hanover County, Nos. 13 CRS 58079-80, 14 CRS 4512
STATE OF NORTH CAROLINA
v.
OTTIS McGILL, Defendant.
Appeal by defendant from order and judgments entered 6 October 2015 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court
of Appeals 7 September 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Melody R.
Hairston and Assistant Attorney General Teresa M. Postell, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
ENOCHS, Judge.
Ottis McGill (“Defendant”) appeals from the trial court’s order denying his
motion to withdraw his guilty plea and his convictions for two counts of common law
robbery and attaining the status of an habitual felon. On appeal, he contends that
the trial court erred in denying his motion to withdraw his guilty plea and erred in
finding that a sufficient factual basis existed for accepting his guilty plea. After
careful review, we affirm the trial court’s order denying Defendant’s motion to
withdraw his guilty plea and find no error.
Factual Background
STATE V. MCGILL
Opinion of the Court
On 21 August 2013, Defendant entered a Western Union in Wilmington, North
Carolina and demanded money from Calethea Smith (“Smith”) who was working at
the front counter. Smith gave Defendant approximately $6,403.00 and Defendant
fled the premises. The entire exchange between Defendant and Smith was captured
on audio and video surveillance.
Several days later on 6 September 2013, Defendant entered New Bridge Bank
in Wilmington and demanded that James Taylor (“Taylor”) and Lynn Creech
(“Creech”) — who were working as tellers at the bank at the time — give him all of
the money in their cash drawers. Taylor and Creech complied and gave Defendant
approximately $2,250.00. Defendant then fled.
Detectives David Timken (“Detective Timken”) and K.J. Tully (“Detective
Tully”) with the Wilmington Police Department were assigned to investigate the
robberies. They consulted with Jeff Martens with the U.S. Marshal Task Force, who
informed them that he had been looking for Defendant whom he believed was in the
Wilmington area and could have perpetrated the robberies. The detectives obtained
a photograph of Defendant, and Detective Timken included Defendant’s picture in
photographic lineups he administered to Smith, Taylor, and Creech, all of whom
positively identified Defendant as the man who had committed the robberies.
Defendant was subsequently located and arrested.
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Opinion of the Court
On 23 June 2014, Defendant was indicted on two counts of common law
robbery and obtaining the status of an habitual felon. Shortly thereafter, the State
offered him a plea agreement that would have required him to plead guilty to these
charges in exchange for concurrent — as opposed to consecutive — prison sentences.
Defendant declined this plea agreement and trial was scheduled for 30 March
2015. Prior to trial, Defendant moved to suppress the results of the photographic
lineups. The trial court denied this motion.
On 30 March 2015, Defendant’s case was called for trial before the Honorable
Phyllis M. Gorham in New Hanover County Superior Court. Shortly after the jury
was empaneled, however, Defendant informed the trial court that he did, in fact, want
to enter into a plea deal with the State.
After a discussion with his attorney and the State during a recess in the
proceedings, Defendant informed the trial court that he wished to plead guilty to the
charges against him and proceeded to do so, signing a transcript of plea. In exchange
for his guilty plea, Defendant received a prayer for judgment continued — seemingly
so he could provide the State with information he possessed concerning an unrelated
criminal case in exchange for a potentially more lenient prison sentence.
During the time period following the entry of his guilty plea and prior to
sentencing, Defendant engaged in several interviews with the State concerning the
unrelated criminal matter. The State ultimately determined not to use Defendant as
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Opinion of the Court
a witness in that case, however, and declined to recommend a reduction of his
sentence to the trial court.
On 9 April 2015, Defendant filed a pro se motion for appropriate relief wherein
he requested to withdraw his guilty plea on the ground that his trial counsel had
erroneously informed him that if he entered into the guilty plea his sentence would
run concurrently with sentences he was set to receive in connection with unrelated
criminal convictions in Robeson and Bladen Counties. He further alleged the
existence of an undefined conspiracy amongst court appointed attorneys generally to
trick their clients into taking unfavorable plea bargains, stating that “[t]his manner
of dispensing with criminal cases has become so profound that many lawyers of the
Public Defenders [sic] Office and Court appointed Attorney’s [sic] have little to no
actual trial experience. Rather, these lawyers trick, manipulate and threateningly
coerce defendants to enter guilty plea [sic]. Such a conspiracy has taken place in this
case.”
On 20 April 2015, Defendant was appointed counsel to represent him regarding
his motion for appropriate relief. On 24 August 2015, Defendant’s newly appointed
counsel filed an amended motion for appropriate relief stating that “Defendant
asserts his intention to withdraw his plea, but under a Motion to Withdraw a Guilty
Plea and not under a Motion for Appropriate Relief.”
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STATE V. MCGILL
Opinion of the Court
On 17 and 22 September 2015, an evidentiary hearing was held on Defendant’s
motion before the Honorable W. Allen Cobb, Jr. in New Hanover County Superior
Court. On 6 October 2015, Judge Cobb entered an order concluding that based on the
evidence presented, Defendant’s motion to withdraw his guilty plea should be denied.
That same day, a sentencing hearing was held before Judge Cobb who
sentenced Defendant to two consecutive sentences of 117 to 153 months
imprisonment. At the conclusion of the hearing, Defendant’s trial counsel attempted
to enter oral notice of appeal on Defendant’s behalf but was repeatedly interrupted
by Defendant in the following exchange:
THE COURT: Anything further, Mr. Moore?
MR. MOORE: Judge, Mr. McGill would give notice -
THE DEFENDANT: No, no, I would like to file a
motion for appropriate relief.
MR. MOORE: Okay. He would like to give --
THE DEFENDANT: No, no, no, Your Honor, excuse
me. I would like to file these motions for appropriate relief.
I have already wrote the State Bar on Mr. Moore and that
was a couple -- that was a while back, you know, and I
already done wrote another letter, you know, I’ve been
writing Mr. Moore constantly.
THE COURT: Let the record reflect that the Court,
based on the representations of his lawyer, enters notice of
appeal to the North Carolina Court of Appeals. The Court
appoints the Appellate Defender to perfect his appeal.
There will be no appeal bond and if in fact the Court of
Appeals affirms anything that may have been done here,
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Opinion of the Court
then he is free to file any appropriate motion for
appropriate relief.
He’ll be in your custody, Mr. Sheriff.
THE DEFENDANT: Your Honor, I would like to file
this motion for appropriate relief, sir. So you’re denying
me the right to file the motion?
THE COURT: I don’t have the jurisdiction over it.
He’s in your custody, Mr. Sheriff.
THE DEFENDANT: Okay, is this being
documented?
Just deny me a right, my constitutional right to file
this motion and you told them to put me down for appeal
when I didn’t want an appeal at this point in time. I ask
you to take the motion.
On 30 March 2016 and 2 May 2016, Defendant filed petitions for writ of
certiorari with this Court due to his failure to adequately provide notice of his intent
to appeal pursuant to Rule 4 of the North Carolina Rules of Appellate Procedure. On
1 June 2016, the State filed a motion to dismiss Defendant’s appeal.
Analysis
I. Appellate Jurisdiction
As an initial matter, we must address the issue of whether appellate
jurisdiction exists over Defendant’s appeal.
Rule 4 of the North Carolina Rules of Appellate Procedure
provides that a defendant may appeal from an order or
judgment in a criminal action by (1) “giving oral notice of
appeal at trial,” or (2) “filing notice of appeal with the clerk
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Opinion of the Court
of superior court and serving copies thereof upon all
adverse parties within fourteen days after entry of the
judgment[.]”
State v. Holanek, ___ N.C. App. ___, ___, 776 S.E.2d 225, 231 (quoting N.C.R. App. P.
4), disc. review denied, 368 N.C. 429, 778 S.E.2d 95 (2015), cert. denied, __ U.S. __,
136 S. Ct. 2493, ___ L. Ed. 2d ___ (2016). Where a defendant fails to adequately
provide notice of appeal, his appeal is subject to dismissal. However, we may still
address the merits of a defective appeal pursuant to Rule 21 of the North Carolina
Rules of Appellate Procedure where the defendant files a petition for writ of certiorari.
See N.C.R. App. P. 21(a)(1) (“The writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the judgments and orders
of trial tribunals when the right to prosecute an appeal has been lost by failure to
take timely action[.]”).
Here, Defendant stated during the sentencing hearing that he did not want to
appeal his convictions. Nor did he file written notice of appeal within 14 days after
his sentence was imposed in accordance with Rule 4. Consequently, we agree with
the State that Defendant’s notice of appeal is not timely and grant its motion to
dismiss Defendant’s appeal. See State v. Cottrell, 234 N.C. App. 736, 740, 760 S.E.2d
274, 277-78 (2014) (granting state’s motion to dismiss defendant’s appeal due to
improper notice of appeal, but nevertheless reaching merits of appeal pursuant to
Rule 21 upon defendant’s filing of petition for writ of certiorari).
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Opinion of the Court
However, on 30 March 2016 and 2 May 2016, Defendant filed petitions for writ
of certiorari with this Court seeking appellate review of (1) the denial of his motion
to withdraw his guilty plea; and (2) whether a sufficient factual basis existed to allow
the trial court to accept his guilty plea. The State has failed to cite any cases
precluding our issuing of a writ of certiorari under the circumstances of this case, and
we are not aware of any.
Indeed, to the contrary, N.C. Gen. Stat. § 15A-1444(e) (2015) states, in
pertinent part, that
[e]xcept as provided in subsections (a1) and (a2) of this
section and G.S. 15A-979, and except when a motion to
withdraw a plea of guilty or no contest has been denied, the
defendant is not entitled to appellate review as a matter of
right when he has entered a plea of guilty or no contest to
a criminal charge in the superior court, but he may petition
the appellate division for review by writ of certiorari.
(Emphasis added). Therefore, it is within our discretionary authority under the
factual circumstances of the present case as to whether a writ of certiorari as to
Defendant’s petitions should issue. We elect to do so here and grant Defendant’s
petitions in order to reach the merits of his appeal.1
II. Motion to Withdraw Guilty Plea
1 Moreover, though unnecessary to our determination on this jurisdictional issue, we note that
despite the State’s contentions to the contrary, we are inclined to agree with Defendant that a
contextual reading of the transcript more accurately reflects that he was upset with the trial court’s
refusal to allow his motion for appropriate relief, as opposed to knowingly and intentionally
abandoning any and all future right to appeal the denial of his motion to withdraw his guilty plea.
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Opinion of the Court
Defendant first argues on appeal that the trial court erred by denying his
motion to withdraw his guilty plea. Specifically, he contends that his trial counsel
provided incomplete or erroneous advice concerning habitual felon sentencing which
resulted in his misunderstanding the consequences of his guilty plea and also
conspired with the State for the purpose of “tricking” him into pleading guilty. We
disagree.
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. That is, the
appellate 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 the motion to
withdraw.
State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993) (internal
citation and quotation marks omitted).
Our Supreme Court has held that “a presentence motion to withdraw a plea of
guilty should be allowed for any fair and just reason.” State v. Handy, 326 N.C. 532,
539, 391 S.E.2d 159, 162 (1990); State v. Meyer, 330 N.C. 738, 742-43, 412 S.E.2d 339,
342 (1992) (“Although there is no absolute right to withdraw a guilty plea, withdrawal
motions made prior to sentencing, and especially at a very early stage of the
proceedings, should be granted with liberality.” (internal quotation marks omitted)).
It is well settled that
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Opinion of the Court
[t]he defendant has the burden of showing that his motion
to withdraw is supported by some fair and just reason.
Whether the reason is fair and just requires a
consideration of a variety of factors. Factors which support
a determination that the reason is fair and just include: [1]
the defendant’s assertion of legal innocence; [2] the
weakness of the State’s case; [3] a short length of time
between the entry of the guilty plea and the motion to
withdraw; [4] that the defendant did not have competent
counsel at all times; [5] that the defendant did not
understand the consequences of the guilty plea; and [6]
that the plea was entered in haste, under coercion or at a
time when the defendant was confused. If the defendant
meets his burden, the court must then consider any
substantial prejudice to the State caused by the
withdrawal of the plea.
Marshburn, 109 N.C. App. at 108, 425 S.E.2d at 717-18 (internal citations and
quotation marks omitted). These factors were first enumerated in Meyer and have
subsequently been applied by our appellate courts in determining whether the denial
of a defendant’s motion to withdraw his guilty plea was proper. However, our
Supreme Court in Meyer also emphasized that the State need not even demonstrate
on appeal that a reversal of the trial court’s denial of a defendant’s motion to
withdraw his guilty plea would cause it to suffer substantial prejudice “until the
defendant has asserted a fair and just reason why he should be permitted to withdraw
his guilty pleas.” 330 N.C. at 744, 412 S.E.2d at 343. We address each of the Meyer
factors in turn.
A. Defendant’s Assertion of Legal Innocence
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Opinion of the Court
In the present case, Defendant’s motion to withdraw his guilty plea was not
based upon his assertion of legal innocence. Instead, as noted above, Defendant
merely alleged that his attorney misled him by incorrectly explaining the law to him
as it pertains to habitual felon sentencing and that she conspired with the State to
“trick” him into accepting a guilty plea.
Significantly, our research has failed to produce a single case in which our
appellate courts have found that the trial court erred in denying a defendant’s motion
to withdraw his guilty plea where the defendant did not, as a ground for his motion,
assert his legal innocence. See, e.g., State v. Chery, 203 N.C. App. 310, 691 S.E.2d 40
(2010); State v. Watkins, 195 N.C. App. 215, 672 S.E.2d 43 (2009); State v. Villatoro,
193 N.C. App. 65, 666 S.E.2d 838 (2008); State v. Graham, 122 N.C. App. 635, 471
S.E.2d 100 (1996).
Indeed, our Supreme Court expressly addressed the significant weight
accorded this factor in Meyer:
Perhaps most importantly, defendant in this case, unlike
the defendant in Handy, has not asserted his “legal
innocence.” In Handy, the defendant pleaded guilty to
felony murder based on the underlying charge of armed
robbery. The following morning, the defendant told the
trial judge that he had felt “under pressure” to plead guilty,
and that after praying about it overnight and talking with
his mother and attorneys, he believed he was not actually
guilty of first-degree murder. In this case, defendant
sought to withdraw his guilty pleas not because he believed
he was innocent of the crimes charged, but because of the
extensive media coverage generated by his escape.
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Opinion of the Court
330 N.C. at 744, 412 S.E.2d at 343 (internal citation omitted); see also Chery, 203
N.C. App. at 319, 691 S.E.2d at 47 (holding where defendant did not assert his
innocence and “[o]ur independent review of the record in this case reveal[ed] that the
reason for defendant’s motion to withdraw his plea was that his co-defendant . . . was
found not guilty of all charges” that “[t]he trial court properly denied defendant’s
motion to withdraw his plea”). Therefore, Defendant’s failure to establish this factor
as a reason why his motion to withdraw his guilty plea should have been granted
weighs heavily against him under the Meyer analysis.
B. Strength of the State’s Case
Defendant next argues that the State’s case was weak and that, as a result, we
should find the second Meyer factor weighs in his favor. Specifically, Defendant
contends that the photographic lineup evidence forecast by the State was tainted
pursuant to N.C. Gen. Stat. § 15A-284.52(a)(3) and (b)(1) (2015) given that Detective
Timken — the officer who first interviewed the bank tellers — also administered the
photographic lineups to them. Subsection (b)(1) of N.C. Gen. Stat. § 15A-284.52
provides that
[l]ineups conducted by State, county, and other local law
enforcement officers shall meet all of the following
requirements:
(1) A lineup shall be conducted by an
independent administrator or by an
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Opinion of the Court
alternative method as provided by subsection
(c) of this section.
Subsection (a)(3) defines an independent administrator as “[a] lineup administrator
who is not participating in the investigation of the criminal offense and is unaware
of which person in the lineup is the suspect.”
We first note that Defendant moved to suppress the photographic lineups
evidence pursuant to the above statute during a pretrial motion. The motion was
denied by the trial court and Defendant has not appealed the trial court’s decision to
allow the photographic lineups into evidence. Therefore, any argument as to its
admissibility on appeal is deemed abandoned. See State v. Brown, 217 N.C. App. 566,
569, 720 S.E.2d 446, 449 (2011) (“If a defendant does not give specific notice of his
intent to appeal a motion to suppress, then the defendant has waived the right to
appellate review.”).
Even assuming arguendo, however, that the photographic lineups had been
suppressed and excluded from the State’s evidence, we are still not convinced that
the State’s case would have been considered “weak.” The State’s forecast of evidence
also included audio and video recordings of the Western Union robbery and additional
witnesses present during the robberies who were prepared to testify that Defendant
had been the perpetrator. As a result, we hold that Defendant has failed to
sufficiently establish the second factor of the Meyer test.
C. Timeliness of Motion
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Opinion of the Court
Defendant next argues that his motion was filed within a short time after the
entry of his guilty plea weighing in favor of a finding that he had had a “sudden
change of heart” as to his guilty plea. We disagree.
Our appellate courts have placed heavy reliance on
the length of time between a defendant’s entry of the guilty
plea and motion to withdraw the plea. The reasoning
behind this reliance was articulated in Handy:
A swift change of heart is itself strong
indication that the plea was entered in haste
and confusion; furthermore, withdrawal
shortly after the event will rarely prejudice
the Government’s legitimate interests. By
contrast, if the defendant has long delayed his
withdrawal motion, and has had the full
benefit of competent counsel at all times, the
reasons given to support withdrawal must
have considerably more force.
Chery, 203 N.C. App. at 317, 691 S.E.2d at 46 (internal citation and quotation marks
omitted) (quoting Handy, 326 N.C. at 539, 391 S.E.2d at 163).
It is undisputed that Defendant waited nine days to file his pro se motion to
withdraw his guilty plea during which time he provided details to the State
concerning an unrelated case in an attempt to obtain a reduction in his sentence. It
was only after the State ultimately declined to offer him a reduction that he resolved
to withdraw his guilty plea.
This does not represent the type of sudden change of heart necessary to
establish a fair and just reason that he should be allowed to withdraw his guilty plea.
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Opinion of the Court
Nor does it reflect that Defendant was confused or entered his guilty plea in haste.
Instead, it reflects a well thought out and calculated tactical decision on Defendant’s
part to attempt to obtain a more lenient sentence after his endeavor to receive a
sentence reduction by cooperating with the State did not bear fruit. See id. at 318,
691 S.E.2d at 46 (“Although defendant’s letter seeking to withdraw his plea was sent
to Judge Jenkins only nine days after its entry, the facts of this case do not show that
this desire was based upon a swift change of heart as contemplated by Handy.
Defendant executed the plea transcript approximately three and a half months prior
to the plea hearing. There is no indication in the record that during this time
defendant wavered on this decision. It was only after [his co-defendant] was found
not guilty of all charges did defendant decide that he wished to withdraw his plea.”
(internal quotation marks and brackets omitted)).
Moreover, the terms of the plea deal itself were unambiguous. This Court has
held that “ ‘[i]n analyzing plea agreements, contract principles will be wholly
dispositive because neither side should be able . . . unilaterally to renege or seek
modification simply because of uninduced mistake or change of mind.’ ” State v.
Robinson, 177 N.C. App. 225, 231, 628 S.E.2d 252, 256 (2006) (quoting State v. Lacey,
175 N.C. App. 370, 372, 623 S.E.2d 351, 352-53 (2006)). Defendant cannot, therefore,
unilaterally undo the plea agreement because he no longer deems it advantageous
based upon collateral matters. See Marshburn, 109 N.C. App. at 109, 425 S.E.2d at
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718 (“To be relevant, defendant must show that the misunderstanding related to the
direct consequences of his plea, not a misunderstanding regarding the effect of the
plea on some collateral matter.”).
Consequently, Defendant’s deliberate tactical decision to wait to withdraw his
guilty plea until after the State determined not to offer him a reduction in his
sentence due to his cooperation in the unrelated criminal matter belies his assertion
that he had a sudden change of heart of the type we have held to weigh in a
defendant’s favor under Meyer. As a result, we find this factor also does not weigh in
his favor.
D. Comprehension of Guilty Plea’s Terms
Defendant next contends that he was operating under a misapprehension of
the law as it related to habitual felon sentencing due to his trial counsel’s incorrect
legal advice which he claims was intentionally provided pursuant to a broad, yet
undefined, conspiracy that court appointed attorneys in North Carolina have entered
into with the State in order to trick criminal defendants into entering into
unfavorable guilty pleas. We find this assertion in Defendant’s motion to withdraw
his guilty plea inherently absurd, but nevertheless proceed to address whether he
did, in fact, comprehend the terms of his guilty plea.
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Perhaps most fundamentally, we observe that despite Defendant’s insistence
that he was misled and misinformed in entering into his guilty plea, Defendant’s trial
counsel testified that prior to his doing so she fully informed him of the following:
Q. Did you ever discuss with Mr. McGill the plea for
25 to 39 months to run consecutive if he gave information
on the murder?
A. I don’t recall that. I know at some point there
was discussion about getting his other charges in the other
counties to run concurrent with this, and then I researched
it and found out that you can’t do that, because nothing can
run concurrent, and other charges can’t, if it’s habitual, and
relayed that to him.
Q. So at some point, though, you told him that you
thought they could run concurrent?
A. Right. We talked about it and I researched it and
told him that can’t happen.
Defendant also unequivocally stated during a colloquy with the trial court the
following prior to entering into his guilty plea:
THE COURT: Have the charges been explained to
you by your lawyer?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you understand the nature of the
charges?
THE DEFENDANT: Yes, ma’am.
THE COURT: Have you and your lawyer discussed
the possible defenses to the charges?
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THE DEFENDANT: Yes, ma’am.
THE COURT: Are you satisfied with your lawyer’s
services?
THE DEFENDANT: Yes, ma’am.
....
THE COURT: Do you understand that you are
pleading guilty to two counts of common law robbery, each
count being a Class C felony, each count punishable by up
to 231 months, and habitual felon status for a total
maximum punishment of 462 months in the custody of the
North Carolina Department of Corrections?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you now personally plead guilty?
THE DEFENDANT: Yes, ma’am.
THE COURT: Are you in fact guilty?
THE DEFENDANT: Yes, ma’am.
THE COURT: Have you agreed to plead guilty as a
part of a plea arrangement?
THE DEFENDANT: Yes, ma’am.
THE COURT: The prosecutor and your lawyer have
informed the Court of the following terms and conditions of
your plea. That you will plead guilty to the charges listed
above and receive a prayer for judgment continued.
Is this correct as being your full plea arrangement?
THE DEFENDANT: Yes, ma’am.
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THE COURT: Do you now personally accept this
arrangement?
THE DEFENDANT: Yes, ma’am.
THE COURT: Other than the plea arrangement
between you and the prosecutor, has anyone promised you
anything or threatened you in any way to cause you to
enter this plea against your wishes?
THE DEFENDANT: No, ma’am.
THE COURT: Do you enter this plea of your own free
will?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you have any questions about
what has just been said to you?
THE DEFENDANT: No, ma’am.
Based on the above-quoted exchanges, we are satisfied that the record plainly
and unambiguously shows that Defendant was fully informed of the consequences of
accepting his plea deal and did so both knowingly and voluntarily. Therefore, he has
failed to establish this factor of the Meyer test as weighing in his favor as well.
E. Ineffective Assistance of Counsel
We next consider whether Defendant received effective assistance of counsel.
As noted above, Defendant’s trial counsel was fully prepared for trial and had fully
advised and informed Defendant of the terms of the State’s plea deal. She had also
fully and accurately informed Defendant of the law as it pertained to habitual felon
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Opinion of the Court
sentencing and the impossibility of receiving concurrent sentences with his
convictions in other counties.
Moreover, it was Defendant himself who insisted on entering into a guilty plea
with the State after he was dissatisfied with the jurors who were selected to try him.
This was evidenced through his trial counsel’s testimony at the hearing on his motion
to withdraw his guilty plea:
Q. Did you feel that Mr. McGill was under pressure
when he accepted the plea?
A. I’m sure everyone who takes a plea is under
pressure, but that was his decision. We talked about it
thoroughly. I did not want him to take a plea, and that’s
what he wanted to do.
Defendant’s trial counsel was optimistic about trying the case and fully
prepared to do so. Nevertheless, Defendant insisted on entering into a plea deal, most
likely due to his belief that he could receive a sentence reduction if he cooperated with
the State by providing information about the unrelated criminal matter. As a result,
Defendant’s trial counsel had no choice but to acquiesce to his desire to enter a plea
of guilty. See State v. Grooms, 353 N.C. 50, 85, 540 S.E.2d 713, 735 (2000) (“ ‘[W]hen
counsel and a fully informed criminal defendant client reach an absolute impasse as
to such tactical decisions, the client’s wishes must control; this rule is in accord with
the principal-agent nature of the attorney-client relationship.’ ” (quoting State v. Ali,
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329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991))). Consequently, Defendant cannot
demonstrate based on the record that he received ineffective assistance of counsel.
F. Coercion, Haste, or Confusion
Based on our above analysis, we are satisfied that Defendant was fully
informed of the consequences of his decision to plead guilty and did so knowingly and
voluntarily free from any coercive influence or material misrepresentation. There is
also no evidence whatsoever of Defendant being forced into entering into the guilty
plea in haste. Moreover, there is no evidence in the record that Defendant received
ineffective assistance of counsel. Consequently, we hold that Defendant has failed to
establish this Meyer factor as weighing in his favor as well.
In summary, because Defendant has failed to establish any of the Meyer factors
as weighing in his favor, we hold that the trial court did not err in denying his motion
to withdraw his guilty plea. Defendant’s arguments on this issue are overruled.
III. Trial Court’s Acceptance of Guilty Plea
Defendant’s final argument on appeal is that the trial court erred in accepting
his guilty plea because there was not a sufficient factual basis to support his
convictions. We disagree.
Pursuant to N.C. Gen. Stat. § 15A-1022(c) (2011), a
trial court may not accept a plea of guilty without first
determining that there is a factual basis for the plea. This
determination may be based upon information including,
but not limited to, a statement of the facts by the
prosecutor, a written statement of the defendant, an
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examination of the presentence report, sworn testimony,
which may include reliable hearsay, or a statement of facts
by the defense counsel. The five sources listed in the
statute are not exclusive, and therefore the trial judge may
consider any information properly brought to his attention.
State v. Collins, 221 N.C. App. 604, 606, 727 S.E.2d 922, 924 (2012) (internal citation,
quotation marks, and ellipses omitted).
Here, Defendant stipulated that a factual basis existed to support his guilty
plea. He then stipulated to the State’s summary of the factual basis which it
proceeded to provide. After the State had entered its summary into the record at
trial, the trial court asked Defendant if there were any additions or corrections to the
account that he would like to make. Defendant responded in the negative.
This procedure is sufficient to enable the trial court to find that a factual basis
exists for Defendant’s guilty plea. See id. at 607, 727 S.E.2d at 925 (“We conclude
that the summary of the facts presented by the prosecutor and [d]efendant’s
stipulations are sufficient to establish a factual basis for [d]efendant’s guilty plea.”).
Consequently, Defendant’s argument on this issue is without merit.
Conclusion
For the reasons stated above, we affirm the trial court’s order denying
Defendant’s motion to withdraw his guilty plea and find no error.
AFFIRMED.
Judges ELMORE and ZACHARY concur.
- 22 -
State v. McGillÂ
Court: Court of Appeals of North Carolina
Date filed: 2016-10-18
Citations: 791 S.E.2d 702, 250 N.C. App. 121
Copy CitationsCombined Opinion