On 18 December 1996, nineteen-year-old Gregory Kelly
(“defendant”) appeared before Judge James D. Llewellyn and entered
a guilty plea pursuant to the provisions of North Carolina v.
Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171 (1970). Defendant
pled guilty to trafficking more than 28 grams, but less than 200
grams, of cocaine. The factual basis for the plea was the State's
statement that law enforcement officers found defendant in
possession of more than 28 grams of cocaine. This fact wasstipulated to by defense counsel. Judgment was continued after the
plea was entered. Thereafter, defendant served prison time in
Virginia.
On 5 September 2001, defendant returned to North Carolina and
appeared before Judge Jones. Defendant's trial counsel stated that
defendant was misinformed at the time of entry of the plea and that
he did not commit the crime charged. Defense counsel moved to set
aside entry of the judgment.
Defendant addressed the court and explained that he was
“completely misinformed” when he entered the plea. Defendant
stated he was never in possession of any illegal drugs, that he had
been arrested under a false assumption and that an officer told
defendant to either sign the plea agreement or not go home.
Defendant maintained his innocence. Judge Jones denied the motion
and sentenced defendant to a minimum of 35 months and maximum of 42
months in the North Carolina Department of Corrections. A
statutory minimum fine of $50,000.00 was also imposed.
Defendant argues that the trial court committed plain error by
accepting defendant's guilty plea: (1) after the court was
informed that the defendant's plea was not intelligently,
willingly, freely or knowingly made and (2) failing to allow
defendant's motion violated defendant's constitutional rights.
Our standard of review for the right to withdraw a guilty plea
is whether, after conducting an independent review of the recordand considering the reasons given by the defendant and any
prejudice to the State, it would be fair and just to allow the
motion to withdraw. See State v. Marshburn, 109 N.C. App. 105,
107-108, 425 S.E.2d 715, 718 (1993); State v. Handy, 326 N.C. 532,
539, 391 S.E.2d 159, 163 (1990).
Defendant's motion to set aside the entry of judgment is most
appropriately viewed as a motion to withdraw a guilty plea.
Defendant argues that his guilty plea is invalid because it was not
intelligently, willingly, freely or knowingly made and resulted in
a violation of defendant's constitutional rights.
Defendant has no absolute right to withdraw a guilty plea.
Our Supreme Court has weighed several factors after its independent
review of the record to determine whether defendant showed a “fair
and just reason” to support his motion to withdraw his plea.
Handy, 326 N.C. at 539, 391 S.E.2d at 163. Factors favoring
withdrawal include: (1) whether defendant has asserted his legal
innocence, (2) the length of time between the entry of the guilty
plea and defendant's desire to withdraw it, (3) the strength of the
State's evidence offered, (4) whether the accused had competent
counsel at all relevant times, (5) misunderstanding of the plea's
consequences, (6) confusion, and (7) coercion.
State v. Meyer, 330
N.C. 738, 743, 412 S.E.2d 339, 342 (1992)(citing
Handy at 539, 391
S.E.2d at 163 (citation omitted)).
Cases place heavy reliance on the length of time between entry
of the guilty plea and the defendant's desire to withdraw the plea.
See State v. Marshburn, 109 N.C. App. 105, 109, 425 S.E.2d 715, 718
(1993);
State v. Graham, 122 N.C. App. 635, 637, 471 S.E.2d 100,
101-02 (1996). In
Marshburn, the motion to withdraw the guilty
plea was made at least eight months after entry.
Marshburn, 109
N.C. App. at 106, 425 S.E.2d at 716-17. In
Graham, defendant moved
to withdraw his plea over a month after entry.
Graham, 122 N.C.
App. at 637, 471 S.E.2d at 101-02. In both cases, this Court
refused to allow defendant's plea to be withdrawn. In
Marshburn,
this Court elaborated,
[t]his context [referring to the eight month
period between entry of the plea and the
motion to withdraw] requires that the reasons
given by a defendant 'must have considerably
more force' than would be the case if the
'motion comes only a day or so after the plea
was entered' or if the defendant did not have
competent counsel at the time he entered the
plea.
Marshburn, 109 N.C. App. at 109, 425 S.E.2d at 718 (quoting
Handy,
326 N.C. at 539, 391 S.E.2d at 163).
Here, defendant moved to withdraw a plea nearly five years
old. This fact aligns the case closely to
Marshburn where relief
from the plea was denied, and distinguishes
Handy which allowed the
plea withdrawal where the plea had been entered 24 hours earlier.
Marshburn, 109 N.C. App.
at 109, 425 S.E.2d at 718-19;
Handy, 326
N.C. at 534, 391 S.E.2d at 160.
Although the length of the delay in moving to withdraw the
plea is critical, there are other factors that support the trial
court's decision not to allow defendant to withdraw his plea.
Defendant was represented by counsel at all relevant times,
including at the time of plea entry and at the attemptedwithdrawal. Defendant has not alleged nor is there evidence that
defendant's trial attorney was incompetent, other than the
attorney's motion to set aside judgment which was more properly a
motion to withdraw a plea.
The strength of the State's evidence is unknown. Defendant
contends that drugs were never found in his possession, but he
stipulated to the factual basis of the charge when he entered the
plea. That basis was the finding of cocaine by an officer on the
defendant. Because of this stipulation, there is strong evidence
against the defendant, and a full examination of the evidence is
not available and not needed.
Defendant contends that he misunderstood the consequences of
the plea, was confused about the plea proceedings, felt forced to
enter it, and is innocent of the charges. His statement to the
court just before sentencing and after denial of the motion to
withdraw the plea explains his contention. These later statements
are inconsistent with his prior testimony under oath that he did
understand the nature of the plea when the plea was entered.
The merit of defendant's contention that he was misled and
confused is unknown. In light of the other facts of the case and
the prejudice to the State in reopening a case nearly five years
old, we find that there is no
“fair and just reason” to allow
defendant to withdraw his plea.
Defendant also contends that the denial of defendant's plea
withdrawal deprived him of his constitutional rights provided in
the Sixth Amendment of the U.S. Constitution and Section 23 of
Article I of the North Carolina State Constitution. Defendantasserts that he was not allowed to confront his accuser and the
witnesses against him. Defendant was informed upon entering the
guilty plea that he would forfeit these rights. Because defendant
has not shown that there is no “fair and just” reason to withdraw
his plea, the plea bars defendant from asserting a denial of these
rights. The judgment of the trial court is affirmed.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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