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.
TIMMONS-GOODSON, Judge.
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.
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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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