Appeal by defendant from judgment dated 12 April 2001 by Judge
D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in
the Court of Appeals 17 September 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
A. Michelle FormyDuval for defendant appellant.
GREENE, Judge.
Timothy Ray Russell (Defendant) appeals a judgment dated 12
April 2001 and the denial of his motion to withdraw a guilty plea
entered 12 April 2001.
At a hearing on 6 December 2000, Defendant entered a plea of
guilty to the charge of conspiracy to commit assault inflicting
serious bodily injury pursuant to N.C. Gen. Stat. §14-32.4. This
guilty plea was entered in accordance with a plea agreement, which
provided a prayer for judgment would be entered until Defendant had
the opportunity to testify against co-defendants in the case. The
plea agreement further provided if Defendant complied with its
terms, the State would agree to an active sentence of ten-twelve
months to run concurrently with other sentences Defendant was
already serving. If Defendant refused to testify against his co-defendants, “the State, at its option, [could] declare this
agreement null and void or pray judgment on this plea.”
The trial court conducted an inquiry into Defendant's
competency and understanding of the charges, the guilty plea and
the plea agreement, the maximum sentence for the charge, and
Defendant's satisfaction with the representation and advice of his
attorney. Defendant also completed and signed a “Transcript of
Plea” form that included a written recitation of the court's oral
inquiry and the terms of the plea agreement. In the Transcript of
Plea, Defendant acknowledged his full understanding of the terms of
the agreement and that his guilty plea was knowing and voluntary.
At a hearing on 12 April 2001, the State prayed for judgment
on the plea based on Defendant's refusal to testify against a co-
defendant. Defendant did not contest his failure to comply with
the plea agreement, asserting only his fear of testifying due to
threats he had received, allegedly from the co-defendant, while in
prison on unrelated charges and asked for either a concurrent or
probationary sentence. The trial court imposed a sentence of ten-
twelve months to run consecutively with Defendant's prior
sentences. Defendant then moved to withdraw his guilty plea, and
the motion was denied.
The issues are whether (I) the actual sentence entered in this
case is consistent with the plea agreement; and (II) Defendant must
be allowed to withdraw his plea because to do otherwise would
constitute a manifest injustice. A plea agreement is treated as contractual in nature, and the
parties are bound by its terms.
See State v. Rodriguez, 111 N.C.
App. 141, 144, 431 S.E.2d 788, 790 (1993). Thus, if a trial court
enters a sentence inconsistent with the agreed plea, the defendant
is entitled to withdraw his guilty plea as a matter of right.
N.C.G.S. § 15A-1024 (2001). If the sentence imposed is consistent
with the plea agreement, the defendant is entitled to withdraw his
plea upon a showing of manifest injustice.
See State v. Suites,
109 N.C. App. 373, 375, 427 S.E.2d 318, 320 (1993). Factors to be
considered in determining the existence of manifest injustice
include whether: Defendant was represented by competent counsel;
Defendant is asserting innocence; and Defendant's plea was made
knowingly and voluntarily or was the result of misunderstanding,
haste, coercion, or confusion.
See State v. Handy, 326 N.C. 532,
539, 391 S.E.2d 159, 163 (1990).
I
Defendant first contends a reasonable construction of the plea
agreement would allow him to “go to trial” if he refused to testify
against his co-defendants and thus, he should have been allowed to
withdraw his plea after the sentence was entered.
(See footnote 1)
We disagree. There was no ambiguity in the plea agreement. It simply
stated that if Defendant refused to testify against his co-
defendants the State had the option of declaring the plea “null and
void,” necessitating a trial, or praying for judgment. The plea
agreement set no limits on the actual sentence the trial court
could impose if prayer for judgment was requested where Defendant
did not provide the agreed to testimony. Here, the State chose to
pray for judgment and the trial court was free to enter judgment
consistent with the sentencing statutes. Defendant makes no
contention the sentence is not within the statutory guidelines.
Accordingly, Defendant was not entitled to withdraw his plea
pursuant to section 15A-1024.
II
In the alternative, Defendant argues his post-sentence motion
to withdraw his plea should have been allowed because of manifest
injustice on the grounds he was not fully informed, at the time his
plea was entered, of the sentencing consequences of his plea.
(See footnote 2)
A
Defendant first contends the trial court when receiving his
plea did not inform him that, in the event he did not testify
against his co-defendants, the sentence he could receive in this
case could be made to run at the expiration of the sentences he was
currently serving for unrelated criminal convictions.
Consequently, Defendant argues, he entered his plea without a fullunderstanding of its real consequences. We disagree. The trial
court is only required to inform a defendant of the maximum
possible sentence, including consecutive sentences, on the charge
or charges for which the defendant is being sentenced. N.C.G.S. §
15A-1022(a)(6) (2001). In this case, there is no contention the
trial court failed to inform Defendant of the maximum sentence
available for the crime for which he was currently charged.
B
Defendant next contends the trial court was required to inform
him that if he did not testify against his co-defendants, the State
had the option of praying for judgment and if the State made that
election, he would not be entitled to a trial.
A court may accept a guilty plea only if it is “made knowingly
and voluntarily.”
State v. Wilkins, 131 N.C. App. 220, 224, 506
S.E.2d 274, 277 (1998) (citing
Boykin v. Alabama, 395 U.S. 238, 23
L. Ed. 2d 274 (1969)). A plea is voluntarily and knowingly made if
the defendant is made fully aware of the direct consequences of his
plea.
Wilkins, 131 N.C. App. at 224, 506 S.E.2d at 277 (citing
Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 760
(1970)). Further, if the defendant signed a Transcript of Plea and
the record reveals the trial court made “a careful inquiry” of the
defendant, it is sufficient to show the defendant's plea was
knowingly and voluntarily made, with full awareness of the direct
consequences.
Wilkins, 131 N.C. App. at 224, 506 S.E.2d at 277.
In this case, the record reveals Defendant completed and
signed a Transcript of Plea form and the trial court conducted theproper inquiry. This is sufficient to show Defendant's plea was
entered into knowingly and voluntarily, with full awareness of the
direct consequences of his plea. Accordingly, the denial of
Defendant's post-sentencing motion to withdraw his guilty plea did
not result in manifest injustice.
Affirmed.
Judges WYNN and BIGGS concur.
Footnote: 1