STATE OF NORTH CAROLINA
v
.
RICKY LEE DAVIS
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Charles R. Briggs for defendant-appellant.
McGEE, Judge.
Ricky Lee Davis (defendant) was indicted on 5 September 2000
for second degree murder, driving while impaired, and felony hit
and run. These charges resulted from an automobile collision on 18
February 2000, in which defendant lost control of the car he was
driving and crashed. A young passenger in defendant's car was
killed. Defendant left the scene of the accident. Defendant pled
guilty to all charges on 5 December 2000, pursuant to a plea
agreement whereby judgment was arrested on the driving while
impaired charge, and the remaining charges were consolidated for
sentencing with the second degree murder charge.
A sentencing hearing was scheduled for 13 December 2000.
Defendant filed a motion to withdraw his plea on 12 December 2000.
A hearing was held on defendant's motion on 13 December 2000. Thetrial court denied defendant's motion to withdraw the plea and
sentenced defendant to 170 to 213 months in prison. Defendant
appeals from the denial of his motion to withdraw his guilty plea.
Defendant first argues the trial court erred in failing to
grant defendant's motion to withdraw his guilty plea prior to
sentencing because fair and just reasons existed for his withdrawal
request. Defendant contends he hastily entered into the plea
agreement and did not understand exactly to which charge he was
pleading guilty. We disagree.
In reviewing a motion to withdraw a guilty plea, "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)). Our 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 [a] motion to withdraw." Marshburn, 109
N.C. App. at 108, 425 S.E.2d at 718. In general, a "presentence
motion to withdraw a plea of guilty should be allowed for any fair
and just reason." Handy, 326 N.C. at 539, 391 S.E.2d at 162.
In reviewing such a motion, this Court may consider
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., 326 N.C. at 539, 391 S.E.2d at 163 (citations omitted). In
the case before us defendant filed a motion to withdraw his guilty
plea seven days after he entered the plea. Defendant testified he
was confused and wanted to withdraw his plea because he thought he
was pleading guilty to driving while impaired and not to second
degree murder. There was not a showing of any considerable
prejudice to the State.
However, while defendant testified to confusion and
misunderstanding, the record shows otherwise. Defendant met with
his attorney and the prosecutor prior to defendant entering his
plea and all three discussed consequences of pleading guilty to the
charges and the consequences of pleading not guilty to the charges.
Defendant then watched his attorney fill out the plea transcript
and listened to and answered his attorney's questions concerning
the transcript. The transcript reveals defendant understood his
right to plead not guilty, understood he was pleading guilty to all
charges, and understood as a condition of the plea all charges
would be consolidated for sentencing into the second degree murder
charge. In front of the trial court, defendant answered questions
concerning the plea transcript.
THE COURT: Mr. Davis, you went over all these
questions on the plea transcript with your
lawyer, didn't you?
MR. DAVIS: Yes, sir.
THE COURT: Did you understand all the
questions and give truthful and honest
answers?
MR. DAVIS: Yes, sir.
THE COURT: You understand you're pleading
guilty to second degree murder, driving while
impaired, and driving while your license
revoked, and hit and run?
MR. DAVIS: Um-hum.
. . .
THE COURT: The plea bargain in your case is
that all these charges are consolidated into
the second degree murder charge; sentencing
will occur on Wednesday, December 13th, year
2000. Is that correct and you accept that
arrangement?
MR. DAVIS: Yeah.
We note defendant's attorney was present with defendant when
defendant discussed his options with the prosecutor and when
defendant appeared before the trial court. The record reveals no
evidence of haste or coercion in entering defendant's plea.
Defendant's only assertion of legal innocence was an answer to his
attorney's direct question, "Do you feel like you're guilty of
second degree murder?" Defendant answered, "No, sir." In State v.
Graham, 122 N.C. App. 635, 637, 471 S.E.2d 100, 102 (1996), the
defendant made a similar statement when he stated he "'always felt
that he was not guilty[.]'" This Court held the statement by the
defendant was not a "concrete assertion of innocence[.]" Id.
Furthermore, the State's proffer of evidence was significant.
Our review of the record reveals the State was prepared to offer
several eyewitnesses who would have testified to defendant's
drunken condition at the time the accident occurred and his erratic
driving. The State was also prepared to enter evidence of
defendant's blood alcohol content being .23 at the time of theaccident, along with defendant's two prior convictions for drunk
driving.
Having considered all the Handy factors, we conclude defendant
has failed to present a fair and just reason for withdrawal of his
plea, and the trial court properly denied defendant's motion to
withdraw his plea. We overrule this assignment of error.
We have carefully reviewed the record in this matter in accord
with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967),
as requested by defendant's attorney, and have found no error in
the hearing and determination of the charges against defendant.
We affirm the trial court's denial of defendant's motion to
withdraw his plea of guilty.
Affirmed.
Judges WALKER and BIGGS concur.
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