An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-643


Filed: 18 November 2003


         v.                        Buncombe County
                                Nos. 98 CRS 12702
KENNETH MANZI KAGONYERA                    00 CRS 51123
                                    00 CRS 63356
                                    00 CRS 63425
                                    00 CRS 65086

    Appeal by defendant from judgment entered 10 September 2002 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 10 November 2003.

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

    Jon W. Myers for defendant-appellant.

    LEVINSON, Judge.

    Defendant pled guilty on 13 December 2001 to charges of dog fighting, assault with a deadly weapon with intent to kill inflicting serious injury, second degree murder, felonious breaking and entering, and felonious possession of a Schedule II controlled substance. The plea agreement provided that the State agreed to consolidation of all of the charges into the sentence for second degree murder and that “the State and Defendant agree to continue sentencing.”
    The matter came before the trial court for sentencing on 10 September 2002. During the course of the sentencing hearing,counsel for defendant entered on the record that defendant, against the advice of counsel, desired to withdraw his guilty plea on the ground that the plea was not the product of an informed choice. Based upon sworn answers given by defendant on the transcript of plea form, the trial court denied the motion. The judge proceeded to find as factors in mitigation of defendant's sentence that he voluntarily acknowledged wrongdoing at an early stage of the criminal process and that defendant is willing to participate in the prosecution of co-defendants. The court did not find any factors in aggravation. The court consolidated the offenses for sentencing and imposed an active sentence of a minimum term of 144 months and the corresponding maximum of 182 months.
     Defendant's counsel has filed a brief pursuant to 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). Counsel has attached to the brief a letter dated 2 June 2003 advising defendant in accordance with these decisions. Defendant has filed his own written arguments. He contends the trial court erred by denying his motion to withdraw his guilty plea. He argues he was not informed that sentencing would be in the discretion of the sentencing judge. He submits that he was made to believe he retained his right to withdraw the guilty plea “in the event that he did not agree with the sentence.”
    As a general rule, a motion to withdraw a plea made before sentencing should be granted with liberality. State v. Handy, 326 N.C. 532, 539-40, 391 S.E.2d 159, 162 (1990). Factors to considerin deciding whether or not to grant the motion include (1) the defendant's assertion of legal innocence; (2) the strength of the State's proffer of evidence; (3) the length of time between entry of the plea and the defendant's expression of desire to withdraw the plea; (4) the lack of assistance of counsel; (5) the defendant's misunderstanding or confusion concerning the consequences of the plea; and (6) the exertion of coercion to enter the plea. Id. In reviewing a motion to withdraw a guilty plea, the appellate court makes an “independent review of the record.” Id. at 539, 391 S.E.2d at 163. See also State v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993).
    Applying these factors to the record in this case, we conclude the trial court did not err by denying the motion to withdraw the plea. The transcript of plea shows that defendant swore under oath that he was in fact guilty of the offense and that his plea was entered of his own free will, fully understanding what he was doing. The State's proffer of evidence, including defendant's own inculpatory statement and statements of witnesses inculpating defendant, was strong. At the time he entered the plea he was represented by two attorneys. His motion to withdraw the guilty plea was made nearly nine months after he entered the plea.
    After carefully reviewing the record, we find no error.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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