Appeal by defendant from judgment dated 12 February 2001 by
Judge Charles C. Lamm, Jr. and from order filed 12 March 2001 by
Judge J. Marlene Hyatt in Haywood County Superior Court. Heard in
the Court of Appeals 26 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Deborrah L. Newton, for the State.
Powell & Deutsch, by Robert J. Deutsch, and Jack W. Stewart,
Jr., P.A., for defendant-appellant.
GREENE, Judge.
Harley Eugene Dunn (Defendant) appeals a judgment dated 12
February 2001 entered consistent with his guilty plea of one count
of common law forgery and an order by the trial court filed 12
March 200l denying his motion for appropriate relief.
Defendant pled guilty pursuant to a plea agreement to one
count of common law forgery on 12 February 2001. Under the terms
of the agreement, the State agreed to reduce the charge from
felonious forgery and uttering to misdemeanor common law forgery.
Defendant agreed to plead guilty pursuant to North Carolina v.
Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), and to pay full
restitution in the amount of $497.82. The trial court accepted theplea and sentenced Defendant to a term of 120 days. The trial
court suspended the sentence and placed Defendant on supervised
probation for 24 months, including intensive supervision for six
months.
Defendant filed his notice of appeal from the judgment on 20
February 2001. On the same date, Defendant filed a motion for
appropriate relief, contending the trial court imposed a sentence
at variance with the plea agreement without informing him of its
intent to deviate from the sentencing agreement and allowing him to
withdraw the plea pursuant to N.C. Gen. Stat. § 15A-1024. The
trial court denied the motion for appropriate relief by order filed
12 March 2001.
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The issue is whether the trial court erred in denying
Defendant's motion for appropriate relief without holding a
hearing.
A judge may rule upon a motion for appropriate relief without
a hearing if the motion presents only questions of law and the
taking of evidence is unnecessary. N.C.G.S. § 15A-1420(c)(3)
(1999). Generally, a verbatim record of the guilty plea
proceedings conclusively resolves all questions of fact raised by
a motion to withdraw a plea of guilty and permits the trial court
to dispose of the motion without holding an evidentiary hearing.
State v. Dickens, 299 N.C. 76, 84, 261 S.E.2d 183, 188 (1980).
In this case, Defendant swore under oath in open court that
the provisions contained in the plea agreement constituted the fullagreement. His sole argument in the motion for appropriate relief
is that the trial court committed an error of law because the
agreement recorded in the transcript of plea required the trial
court to comply with N.C. Gen. Stat. § 15A-1024. As the motion
presented solely a question of law based on undisputed facts, the
trial court did not err by failing to hold a hearing.
(See footnote 1)
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1 Defendant also assigned as error the entry of a “judgment
substantially different than the terms of the negotiated plea.”
Since Defendant did not argue this assignment of error in his brief
to this Court, it is deemed abandoned. N.C.R. App. P. 28(a). In
addition, Defendant assigned as error the denial of his “motion to
set aside his
Alford guilty plea pursuant to N.C.G.S. 15A-1024.”
Defendant states in his brief that the trial court denied his
motion to withdraw his plea on 14 February 2001. Defendant,
however, has not included in the record on appeal any order or
ruling of the trial court upon this motion. Thus, this issue is
not properly before us. N.C.R. App. P. 10(b)(1).
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