State v Miller, 156 NC App 699 (02-503) 03/18/2003

Appeal by defendant from judgment entered 22 March 1999 by Judge Robert P. Johnston in Henderson County Superior Court. Heard in the Court of Appeals 22 January 2003.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Allen W. Boyer for defendant-appellant.

    LEVINSON, Judge.

    On 22 March 1999, pursuant to a plea agreement, defendant pled guilty to assault with a deadly weapon with intent to kill and admitted his status as a habitual felon. Defendant was sentenced within the presumptive range to a minimum of 90 months and maximum of 117 months in prison.
    Two days after sentencing, defendant prepared an “Inmate Grievance/Request” addressed to the sentencing judge, Judge Robert P. Johnston, in which he expressed his desire to “appeal” his “plea agreement” and stated that his lawyer lied to him, that he was not guilty, and that he wanted to go to trial with a new lawyer. Defendant forwarded his letter through a “receiving officer,” who later returned the letter which noted the following, “Gave to JudgeJohnston 3/24/99[.] He gave back to me [and] told me he was not going to respond 3/25/99[.]”
    On 6 April 1999, defendant filed notice of appeal from the 22 March 1999 judgment. Although appellate counsel was appointed, defendant's appeal was never perfected. Then, on 4 May 2001, defendant filed a Motion for Appropriate Relief. Defendant argued, inter alia, the same issues that were raised by his 24 March 1999 letter to Judge Johnston. On 15 August 2001, the motion was heard by Judge Zoro J. Guice, who denied defendant's motion finding defendant's allegations to be “totally lacking in any merit and feckless.”
    On 22 October 2001, defendant filed a petition for writ of certiorari, and this Court issued a writ for the sole purpose of reviewing the judgment entered 22 March 1999 by Judge Johnston. This Court's order entered 7 November 2001 confined defendant to presenting only those issues on appeal to which he originally had an appeal of right under N.C.G.S. § 15A-1444(a1), (a2), and (e) (2001).
    Now, on appeal, defendant contends the trial court erred in summarily denying his request to be heard on “his motion to withdraw his guilty plea.” Defendant argues his 24 March 1999 letter to Judge Johnston was a motion to withdraw his guilty plea and that the trial court erred in refusing to hear his motion.
    First, we must determine the legal effect of defendant's “Inmate Grievance/Request.” Although defendant argues that it was in substance a motion to withdraw his guilty plea, the Statemaintains that it was a motion for appropriate relief. Our Supreme Court has made clear the distinction between the two motions. State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990), states in pertinent part:
        A motion to withdraw a guilty plea made before sentencing is significantly different from a post-judgment or collateral attack on such a plea, which would be by a motion for appropriate relief. A fundamental distinction exists between situations in which a defendant pleads guilty but changes his mind and seeks to withdraw the plea before sentencing and in which a defendant only attempts to withdraw the guilty plea after he hears and is dissatisfied with the sentence.

(citations omitted).
    This distinction is not without practical significance as it “creates the need for differing legal standards for adjudicating such motions . . ., a distinction recognized by most courts.” Id. Generally, if a defendant “can show any fair and just reason” he shall be allowed to withdraw a guilty plea before sentencing. Id. (quoting State v. Olish, 164 W. Va. 712, 715, 266 S.E.2d 134, 136 (1980)). However, post-sentencing a defendant may withdraw his guilty plea “only to avoid manifest injustice.” Id. Because defendant's motion was made post-sentencing, we treat it as a motion for appropriate relief. Id.
    Furthermore, because a motion for appropriate relief is not included in G.S. § 15A-1444(a1), (a2), or (e) as a matter from which an appeal of right may be taken, defendant has presented no argument on appeal that was permitted by this Court's writ of certiorari entered 7 November 2001. Nevertheless, in order toresolve the issue presented, we elect, in our discretion, to grant a writ of certiorari as to defendant's motion. N.C.G.S. § 7A- 32(c); see In the Matter of Terry Anton Robinson, 120 N.C. App. 874, 464 S.E.2d 86 (1995).
    N.C.G.S. § 15A-1420 (2001) governs the procedural requirements for the service, form, and filing of motions for appropriate relief. First, we address the service requirements. Although N.C. G.S. § 15A-1420(a)(2) governs those requirements, it requires that any written motion for appropriate relief “must be served in the manner provided in G.S. [§] 15A-951(b),” which describes the requirements for motions in general and provides:
        Each written motion must be served upon the attorney of record for the opposing party. . . . Service upon the attorney or upon a party may be made by delivering a copy of the motion to him or by mailing it to him at his address of record. Delivery of a copy within the meaning of this Article means handing it to the attorney or to the party or leaving it at the attorney's office with an associate or employee. Service by mail is complete upon deposit of the motion enclosed in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the Postal Service of the United States.

N.C.G.S. § 15A-951(b) (2001) (emphasis added).
    Because defendant only delivered a copy of his motion to the trial court, no service or notice was given to the State. Without reaching the questions of whether defendant's motion was in proper form or filed with the appropriate authority, we hold that defendant failed to fulfill the requirements necessary forsufficient service of his motion. Thus, the trial court did not err in failing to enter a disposition on his motion.
    Affirmed.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

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