An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-951


Filed: 5 August 2003


v .                         Wake County
                            Nos. 01 CRS 8971-73

    Appeal by defendant from judgment entered 25 March 2002 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 26 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

    George E. Kelly, III, for defendant appellant.


    Jesus Alfredo Loza-Rivera (“defendant”) appeals from the trial court's denial of his motion to withdraw his pleas of guilty to trafficking in cocaine by possession, trafficking in cocaine by transportation, and trafficking in cocaine by delivery. For the reasons stated herein, we reverse the trial court's denial of defendant's motion to withdraw his pleas of guilty.
    The evidence presented by the State tended to show the following: On 27 January 2001, defendant, Javier Torres (“Torres”) and Antonio Ruiz (“Ruiz”) were arrested for various drug charges related to trafficking in approximately 500 grams of cocaine. On 25 September 2001, defendant entered into a plea arrangement with the State under which he would tender a plea of guilty totrafficking in cocaine by possession, transportation and delivery. In exchange, the State agreed to recommend to the court that the judgments be consolidated into one conviction. Although the plea agreement fails to reflect any additional terms, both the State and defendant conceded that part of the plea agreement was for defendant to offer substantial assistance to the police. The trial court, after taking a transcript of plea, accepted defendant's plea of guilty and granted the State's prayer for judgment continued for “30 days or until such time thereafter as the State prays judgment.” At all relevant times during the proceedings, defendant was represented by legal counsel.
    On 10 February 2002, defendant filed a motion to withdraw his guilty plea, arguing that “fair and just” reasons existed for the withdrawal of his guilty plea. This matter was heard by Judge Osmond Smith on 23 March 2002; and after a hearing, Judge Smith found no fair and just reason to permit defendant's withdrawal of his guilty plea. Therefore, defendant's motion to withdraw his guilty plea was denied. The trial court then consolidated the three counts against defendant and sentenced defendant to a mandatory minimum of 175 months and a maximum of 219 months' imprisonment. Defendant appeals.


    The dispositive issue on appeal is whether there was a fair and just reason to allow defendant to withdraw his guilty plea when he misunderstood the consequences of such a plea. For the reasons stated herein, we conclude that the facts of this case present afair and just reason to support the withdrawal of defendant's guilty plea.
    “In reviewing a decision of the trial court to deny defendant's motion to withdraw, the appellate court does not apply an abuse of discretion standard, but instead makes an 'independent review of the record.'” State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993) (quoting State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 163 (1990)). The trial court may accept a guilty plea if it is “made knowingly and voluntarily” and the record must affirmatively show it on its face. State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277 (1998). “A plea is voluntarily and knowingly made if the defendant is made fully aware of the direct consequences of his plea.” State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d 245, 248 (2002); Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 760 (1970); see also State v. Mercer, 84 N.C. App. 623, 627, 353 S.E.2d 682, 684 (1987). Factors which favor the withdrawal of a guilty plea include “whether the defendant has asserted legal innocence, the strength of the State's proffer of evidence, the length of time between entry of the guilty plea and the desire to change it, and whether the accused has had competent counsel at all relevant times.” Handy, 326 N.C. at 539, 391 S.E.2d at 163. “Misunderstanding of the consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for consideration.” Id. This Court “'must itself determine, considering the reasons given by the defendant and any prejudice to the State, if it would be fair andjust to allow [a] motion to withdraw.'” State v. Davis, 150 N.C. App. 205, 206, 562 S.E.2d 590, 592 (2002) (quoting Marshburn, 109 N.C. App. at 108, 425 S.E.2d at 718). Generally, a motion to withdraw a guilty plea, prior to sentencing, should be allowed for any fair and just reason. Handy, 326 N.C. at 539-40, 391 S.E.2d at 163.
    Here, an independent review of the record reveals there was a fair and just reason to allow defendant to withdraw his guilty plea as defendant clearly misunderstood the consequences of his plea. We note that the State's proffer of evidence was significant in this matter. The State proffered evidence tending to show that defendant, Torres, and Ruiz were at the scene of a drug transaction with a police confidential informant. The informant was equipped with a communications wire. Police listened to the transaction, and then arrested defendant, Torres, and Ruiz. The State presented evidence that Torres was the target of the investigation, that Ruiz acted as a “lookout” person, and that defendant's participation in the transaction only consisted of him acting as Ruiz's “back-up or as muscle.”
    After the arrest, Torres entered into a plea agreement with the State and received a sentence of twenty-four months. Ruiz also entered into a plea agreement and received a sentence of thirty- five to forty-two months' imprisonment. Likewise, defendant tendered his plea in order to receive a sentence similar to those of his co-defendants; however, defendant received a substantially greater sentence although there is some evidence that he was theleast culpable of the defendants. We note that defendant's motion was made prior to the litigation of any pretrial motions and prior to sentencing. There was not a showing of any considerable prejudice to the State. Therefore, defendant's delay in withdrawing his plea will not prejudice the State. See Handy, 326 N.C. at 539, 391 S.E.2d at 163 (concluding that the State may refute the showing of a fair and just reason for withdrawal of a plea by evidence of concrete prejudice to its case by reason of such a withdrawal).
    For the reasons contained herein, we reverse the trial court's denial of defendant's motion to withdraw his pleas of guilty.     Reversed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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