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