State v Raynor, (02-1526) 07/01/2003

Appeal by defendant from judgments entered 26 June 2002 by Judge Ripley E. Rand in Superior Court, Hertford County. Heard in the Court of Appeals 23 June 2003.

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

Appellate Defender Staples Hughes, by Assistant Appellate Defender Beth S. Posner, for defendant-appellant.

WYNN, Judge.

    Under Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), we have fully examined the record for any issues of arguable merit and conclude the trial court violated N.C. Gen. Stat. 15A-1335 (2001) in re-sentencing the defendant. Accordingly, we remand for re-sentencing.
    On 20 March 2000, the defendant entered an Alford plea to attempted murder, assault with a deadly weapon with intent to kill inflicting serious injury, malicious maiming of an eye, malicious castration, robbery with a dangerous weapon, possession of a firearm by a convicted felon, and possession of a weapon of mass death and destruction. See North Carolina v. Alford, 400 U.S. 25,27 L. Ed. 2d 162 (1970). The trial court consolidated the defendant's offenses into a single judgment and sentenced him to a presumptive prison term of 334 to 410 months for the attempted murder. On review by writ of certiorari, we observed that the trial court erroneously treated the crime of attempted murder as a Class B1 felony instead of a Class B2 felony. See N.C. Gen. Stat. §§ 14-2.5, 14-7 (1999). Finding “no error in the defendant's conviction,” we remanded for re-sentencing. State v. Raynor, 149 N.C. App. 978, 563 S.E.2d 309 (2002) (unpublished).
    At his re-sentencing hearing on 26 June 2002, the defendant moved to strike his Alford plea on the grounds that his counsel was ineffective and his plea was not knowingly and voluntarily entered. Specifically, the defendant claimed he had been “on medication” at the plea hearing and faulted his counsel for allowing him to be sentenced as a B1 felon rather than a B2 felon. The trial court denied the defendant's motion. It explained to the defendant that the sentencing error had been corrected on appeal. It reviewed the defendant's signed transcript of plea, which recorded his satisfaction with his counsel and the knowing and voluntary nature of his plea. See State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d 245, 248 (2002) (citing State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277 (1998)). The court further noted that the defendant had not raised a claim of ineffective assistance of counsel or otherwise challenged the validity of his Alford plea when he petitioned this Court for a writ of certiorari in November of 2000 to review the original judgment.     In re-sentencing the defendant, the trial court imposed a presumptive term of 116 to 149 months imprisonment for malicious maiming. It consolidated the defendant's remaining offenses and sentenced him to a consecutive presumptive term of 218 to 271 months for attempted murder. The defendant gave notice of appeal in open court.
    Counsel appointed to represent the defendant on appeal has filed an Anders brief indicating that she is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. See Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967). She asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has filed documentation with the Court showing that she has complied with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising the defendant of his right to file written arguments with the Court and providing him with a copy of the documents pertinent to his appeal. The defendant has filed no additional arguments of his own with this Court, and a reasonable time for such arguments has passed.
    In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom. Based on our review, we conclude that the trial court violated N.C. Gen. Stat. § 15A-1335 (2001), by re-sentencing the defendant to consecutive prison terms totaling 334 to 420 months, in excess of the 334 to 410 month sentence originally imposed. Accordingly, we must again remand for re-sentencing.    Counsel also invites this Court to issue a writ of certiorari to review any potential grounds for relief lying outside the defendant's appeal of right under N.C. Gen. Stat. § 15A-1444 (2001). Because N.C. R. App. P. 21(a) does not authorize the use of certiorari to expand the scope of direct appeal from a guilty plea in this manner, see State v. Pimental, 153 N.C. App. 69, 76- 77, 568 S.E.2d 867, 872, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002), we decline.
    We note that the trial court did not err in denying the defendant's motion to withdraw his plea. Inasmuch as the court's mandate on remand was limited to re-sentencing the defendant in a manner consistent with the terms of the original plea, the defendant had no right to withdraw his plea at the re-sentencing hearing. Cf. State v. Oakley, 75 N.C. App. 99, 104, 330 S.E.2d 59, 63 (1985) (“On remand, the defendant may withdraw his guilty plea at the re-sentencing hearing, if the judge decides to impose a sentence other than the original plea arrangement[.]”) (citing N.C. Gen. Stat. § 15A-1024 (1983)). Moreover, the defendant concedes in his brief to this Court that he adduced no basis at the hearing to set aside his Alford plea more than two years after its entry. See generally State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990). The record supports the trial court's finding of a knowing and voluntary plea.
    Remanded for resentencing.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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