STATE OF NORTH CAROLINA
v. Mitchell County
Nos. 01 CRS 1129-43
TIMOTHY RAY ALLEN
Attorney General Roy Cooper, by Assistant Attorney General
Christine M. Ryan, for the State.
Leslie C. Rawls, for defendant-appellant.
THOMAS, Judge.
Pursuant to a plea agreement, defendant pled guilty to seven
counts of first-degree sex offense, seven counts of indecent
liberties, and one count of attempted statutory sex offense. The
trial court entered three separate judgments sentencing defendant
to 255-315 months for one count each of first-degree sexual
offense. The trial court consolidated all of the remaining counts
and imposed a fourth sentence of 255-315 months, with all sentences
to run consecutively.
Defendant, pro se, filed timely notice of appeal. The court
appointed counsel to represent defendant on appeal.
Contemporaneous with the filing of a brief on defendant's behalf,
counsel filed a petition for a writ of certiorari. Counselacknowledged in the petition that defendant did not have a right to
appeal. The State subsequently filed a motion to dismiss the
appeal, but in our discretion, we elect to allow the petition and
review the issue raised in defendant's brief.
By his sole assignment of error, defendant argues the trial
court erred by accepting his plea without an adequate factual
basis. He claims the evidence failed to establish the ages of the
victims and therefore the age element of the offenses was not
satisfied. We disagree.
It is established by N.C. Gen. Stat. § 15A-1022(c) that the
trial court may not accept a plea of guilty or no contest unless
the court finds the existence of a factual basis for the plea.
N.C. Gen. Stat. § 15A-1022(c) (1999). The statute lists five
sources from which this determination may be made: (1) a statement
of the facts by the prosecutor; (2) a written statement by the
defendant; (3) a presentence report; (4) sworn testimony, including
reliable hearsay; and (5) a statement of the facts by defense
counsel. Id.; State v. Atkins, 349 N.C. 62, 95-96, 505 S.E.2d 97,
118 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
These sources are not exclusive; the court may consider any
information properly brought to its attention in determining
whether a factual basis exists. State v. Dickens, 299 N.C. 76, 79,
261 S.E.2d 183, 185 (1980). However, the material considered by
the court in making this determination must appear in the record so
the appellate court can determine whether the plea has been
properly accepted. State v. Sinclair, 301 N.C. 193, 198, 270S.E.2d 418, 421 (1980). The defendant's failure to object to the
prosecutor's summary of the evidence or otherwise to bring the
issue of lack of a factual basis to the attention of the trial
judge may result in waiver of appellate review. State v. Kimble,
141 N.C. App. 144, 147, 539 S.E.2d 342, 344-45 (2000), disc. rev.
denied, 353 N.C. 391, 548 S.E.2d 150 (2001).
In this case, the transcript of the plea hearing shows
defendant's counsel stipulated that there is a factual basis for
the plea and that the prosecutor could summarize the evidence.
After hearing the prosecutor narrate evidence of the acts forming
the basis of each charge, the trial judge directed the prosecutor's
attention to the age element of the offenses. The prosecutor
confirmed defendant's date of birth, 17 March 1972, and the court
acknowledged that it had reviewed the victims' dates of birth or
ages stated in the indictments. The indictments, which are in the
record, either list the dates of birth of the victims or state the
victims were within the proscribed age ranges at the times of the
offenses. Defendant did not object to this method of proof or to
any perceived lack of a factual basis for the plea after the
prosecutor completed his summarization of the evidence.
We conclude the record supports the court's determination that
there is a factual basis for the plea. Accordingly, we find no
error.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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