2. Criminal Law--motion for continuance_-invalid plea agreement
The trial court did not abuse its discretion in a statutory sex offense, sexual activity by a
substitute parent, indecent liberties with a child, first-degree statutory rape, and first-degree
statutory sex offense case by denying defendant a continuance after the trial court declined
defendant's request to consider his alleged plea arrangement, because there was no proposed plea
agreement before the court when defendant's statement to the trial court on 15 July 2002 that he
was prepared to accept the plea was an attempt to resurrect the 26 June 2002 plea arrangement
which had been rendered null and void once the trial court rejected it.
3. Appeal and Error--preservation of issues--plain error
Although defendant contends the trial court committed plain error in a statutory sex
offense, sexual activity by a substitute parent, indecent liberties with a child, first-degree
statutory rape, and first-degree statutory sex offense case by allowing the State to present
evidence of prior bad acts including evidence that defendant had been incarcerated in Arizona,
that he used illegal drugs, and that he abused his wife, defendant did not properly preserve this
issue for appeal because: (1) defendant provided no explanation, analysis or specific contention
in his brief supporting the bare assertion that the claimed error is so fundamental that justice
could not have been done; and (2) the right and requirement to specifically and distinctly contend
an error amounts to plain error does not obviate the requirement that a party provide argument
supporting the contention that the trial court's actions amounted to plain error as required by
N.C. R. App. P. 28(a) and (b)(6).
4. Constitutional Law--effective assistance of counsel-_failure to meet burden of proof
Although defendant contends the trial court erred in a statutory sex offense, sexual
activity by a substitute parent, indecent liberties with a child, first-degree statutory rape, and first-
degree statutory sex offense case by concluding that defendant did not receive ineffective
assistance of counsel based on counsel's alleged failure to object to inadmissible evidence, this
assignment of error is dismissed because defendant failed to show that counsel's performance fell
below an objective standard of reasonableness or that the error committed was so serious that a
reasonable probability existed that the trial result would have been different absent the error.
5. Sexual Offenses--statutory sex offense against person 13, 14, or 15 years old--short-
form indictment
The trial court did not err by concluding that the indictment for statutory sex offense
against a person who is 13, 14, or 15 years old was sufficient to apprise defendant of the crime
with which he was charged, because: (1) N.C.G.S. § 15-144.2 permits a short-form indictment
for this crime; and (2) the statute does not require the State to provide the details of the alleged
sexual offense in the indictment, but specifically states that it is sufficient in describing a sex
offense to allege that the accused person unlawfully, willfully, and feloniously did engage in a
sex offense with the victim.
Attorney General Roy Cooper, by Associate Attorney General Q.
Shant. Martin, for the State.
Russell J. Hollers, III, for the defendant.
TIMMONS-GOODSON, Judge.
Ronnie Daniels (“defendant”) appeals his convictions of
statutory sex offense, two counts of sexual activity by a
substitute parent, two counts of indecent liberties with a child,
first-degree statutory rape, and first-degree statutory sex
offense. For the reasons stated herein, we hold that defendant
received a trial free of prejudicial error.
Defendant is accused of sexually abusing his two step-
daughters. The procedural history of this case is described in the
trial court's Order Pertaining to Plea Arrangement as to Sentence
and Order Deny[ing] Continuance as follows: On 25 September 2001,
defendant was called upon to enter his plea before the trial court.
As the trial court reviewed the Transcript of Plea with defendant,
defendant rejected the plea offer and his case was set for trial on
11 June 2002. However, before the case was called to trial, the
parties announced that a plea would be entered. On 14 June 2002, the case was docketed for a plea hearing.
During this hearing, the trial court observed a conversation
between defendant and his trial counsel where it appeared to the
court that counsel was attempting to convince defendant to accept
the plea while defendant “vociferously opposed.” The trial court
continued the case until 26 June 2002.
On 26 June 2002, the trial court was informed for the third
time that defendant and the State had negotiated a plea agreement.
While being questioned in accordance with the transcript of plea,
defendant responded to the trial court question that he was “not
guilty,” thereby rejecting the plea. The trial court then stated
that a plea would not be accepted from defendant because to do so
would only bring motions for appropriate relief and contentions of
a coerced plea. The trial court directed that defendant's case be
continued until the next session of court for trial.
On 15 July 2002, defendant through trial counsel asserted that
he desired to plead guilty pursuant to the plea arrangement. The
trial court declined to hear defendant's plea, and called the case
for trial. Following a jury trial, defendant was convicted of all
charges. It is from these convictions that defendant appeals.
As an initial matter, we note that defendant's brief contains
arguments supporting only five of the original nine assignments of
error on appeal. The four omitted assignments of error are deemed
abandoned pursuant to N.C.R. App. R. 28(b)(6) (2004). We therefore
limit our review to those assignments of error addressed in
defendant's brief. The remaining issues presented on appeal are whether (I) a
valid plea agreement existed between defendant and the State on 15
July 2002; (II) the trial court erred by denying defendant a
continuance; (III) the trial court erred by allowing the State to
present evidence of prior bad acts; (IV) defense counsel rendered
ineffective assistance to defendant; (V) one of the indictments for
first-degree statutory sex offense was sufficient to apprise
defendant of the crime with which he was charged.
[1] Defendant first argues that a valid plea agreement existed
on 15 July 2002 between defendant and the State. We disagree.
“G.S. 15A-1021(c) allows the parties to a plea arrangement to
advise the trial judge of the terms of the proposed agreement,
provided an agreement has been reached.” State v. Slade, 291 N.C.
275, 278, 229 S.E.2d 921, 924 (1976) (emphasis added). “There is
no absolute right to have a guilty plea accepted.” State v.
Collins, 300 N.C. 142, 148, 265 S.E.2d 172, 176 (1980).
In the case sub judice, the State argues, and we agree, that
no valid plea agreement existed when the case was called for trial
on 15 July 2002. Defendant rejected three plea arrangements before
this case went to trial. The Transcript of Plea reflects the trial
court's account of defendant's actions in that it documents the 14
June and 26 June plea arrangements. The Transcript of Plea
contains the terms of the arrangement, and is originally signed and
dated 14 June 2002. The plea arrangement appears to have been
renewed after defendant rejected it on 14 June 2002 because the
original date is crossed out and a new date of 26 June 2002 is
entered, and the change is initialed by the prosecutor. This 26June 2002 plea arrangement was rejected by the trial court when
defendant stated that he was “not guilty” as the trial court
reviewed the Transcript of Plea.
The trial court's ruling on 26 June 2002 rendered the
negotiated plea arrangement “null and void.” See Collins, 300 N.C.
at 149, 265 S.E.2d at 176. Thus, the fact that the trial court
rejected the 26 June 2002 plea arrangement means that the
arrangement was no longer available for defendant to accept on 15
July 2002 unless the prosecutor negotiated another plea arrangement
with defendant. The record does not reflect that such a
negotiation took place. There are no additional changes to the
Transcript of Plea, there is no new Transcript of Plea signed prior
to the trial date, nor did the prosecution announce that the
parties had reached another plea agreement when the case was called
for trial on 15 July 2002. Thus, defendant had no basis for
announcing to the judge that he wished to accept the State's plea
arrangement. Accordingly, we find no error in the trial court's
ruling on this matter.
[2] Defendant next argues that the trial court erred by
denying his right to continue after the trial court declined
defendant's request to consider his plea arrangement. We disagree.
Absent a specific statutory provision, a ruling by the trial
court on a motion to continue is “within the sound discretion of
the trial court and reviewable upon appeal only for abuse of
discretion.” State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593,
596 (1988). In determining whether to grant a motion to continue,
the trial court must consider “[w]hether the failure to grant acontinuance would be likely to result in a miscarriage of justice.”
N.C. Gen. Stat. § 15A-952(g)(1) (2003). “Upon rejection of the
plea arrangement by the judge the defendant is entitled to a
continuance until the next session of court.” N.C. Gen. Stat. §
15A-1023(b) (2003). This Court has held that by virtue of this
statutory language, “the legislature has clearly granted to the
defendant such an absolute right upon rejection of a proposed plea
agreement at arraignment.” State v. Tyndall, 55 N.C. App. 57, 63,
284 S.E.2d 575, 578 (1981) (emphasis added).
As discussed supra, in the present case there was no proposed
plea agreement before the court. Defendant's statement to the
trial court on 15 July 2002 that he was prepared to accept the plea
was an attempt to resurrect the 26 June 2002 plea arrangement,
which had been rendered null and void once the trial court rejected
it. Because there was no valid plea agreement for the trial court
to consider, we hold that the trial court did not abuse its
discretion in denying defendant's request for a continuance.
[3] Defendant next assigns error to the admission by the trial
court of evidence of defendant's prior bad acts. Defendant
contends that the trial court should not have admitted evidence
that defendant had been incarcerated in Arizona, that he used
illegal drugs, and that he abused his wife. The State argues that
defendant has not properly preserved the issue for appeal. We
agree with the State.
“In criminal cases, a question which was not preserved by
objection noted at trial and which is not deemed preserved by rule
or law without any such action, nevertheless may be made the basisof an assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error.”
N.C.R. App. P. 10(c)(4) (2004).
In his appellate brief, defendant concedes that defense
“counsel did not object to the admission of this evidence,” and
asserts that plain error is present. Although defendant alleges
plain error in the corresponding assignment of error in the record,
“he provides no explanation, analysis or specific contention in his
brief supporting the bare assertion that the claimed error is so
fundamental that justice could not have been done.” State v.
Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000), cert.
denied, 532 U.S. 997 (2001). “The right and requirement to
specifically and distinctly contend an error amounts to plain error
does not obviate the requirement that a party provide argument
supporting the contention” that the trial court's actions amounted
to plain error, as required by N.C.R. App. P. 28(a) and (b)(6)
(2003). Id.
To hold otherwise would negate those
requirements, as well as those in Rule
10(b)(2). Defendant's empty assertion of
plain error, without supporting argument or
analysis of prejudicial impact, does not meet
the spirit or intent of the plain error rule.
By simply relying on the use of the words
"plain error" as the extent of his argument in
support of plain error, defendant has
effectively failed to argue plain error and
has thereby waived appellate review.
Cummings, 352 N.C. at 636-37, 536 S.E.2d at 60 (citations omitted).
Accordingly, defendant has waived this assignment of error.
[4] Defendant also argues that defense counsel rendered
ineffective assistance to him by failing to object to inadmissibleevidence. For the reasons stated infra, we decline to address this
assignment of error.
In State v. Blakeney, our Supreme Court held that
[t]o successfully assert an ineffective
assistance of counsel claim, defendant must
satisfy a two-prong test. See Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693, 104 S. Ct. 2052 (1984). First, he
must show that counsel's performance fell
below an objective standard of reasonableness.
See State v. Braswell, 312 N.C. 553, 561-62,
324 S.E.2d 241, 248 (1985). Second, once
defendant satisfies the first prong, he must
show that the error committed was so serious
that a reasonable probability exists that the
trial result would have been different absent
the error. See Strickland, 466 U.S. at 691-96,
80 L. Ed. 2d at 696-99.
352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000). “[Ineffective
assistance of counsel] claims brought on direct review will be
decided on the merits when the cold record reveals that no further
investigation is required, i.e., claims that may be developed and
argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Fair, 354 N.C.
131, 166-67, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S.
1114 (2002).
We conclude that there is inadequate evidence of ineffective
assistance of counsel on the record for this Court to review the
issue on appeal without such ancillary procedures as described in
Blakeney. Accordingly, this assignment of error is dismissed,
without prejudice to file a Motion for Appropriate Relief in the
trial court.
[5] In his final argument, defendant asserts that his
indictment for Statutory Sex Offense Against A Person Who Is 13,14, or 15 Years Old was not sufficient to confer jurisdiction on
the trial court. We disagree.
Defendant's argument is two-fold. First, defendant argues
that the statute governing short-form indictments does not provide
such an indictment for the specific crime with which he is charged.
Short-form indictments are permitted for sex offenses under
N.C. Gen. Stat. § 15-144.2, which reads in pertinent part as
follows:
(a) In indictments for sex offense it is not
necessary to allege every matter required to
be proved on the trial; but in the body of the
indictment, after naming the person accused,
the date of the offense, the county in which
the sex offense was allegedly committed, and
the averment "with force and arms," as is now
usual, it is sufficient in describing a sex
offense to allege that the accused person
unlawfully, willfully, and feloniously did
engage in a sex offense with the victim,
naming the victim, by force and against the
will of such victim and concluding as is now
required by law. Any bill of indictment
containing the averments and allegations
herein named shall be good and sufficient in
law as an indictment for a first degree sex
offense and will support a verdict of guilty
of a sex offense in the first degree, a sex
offense in the second degree, an attempt to
commit a sex offense or an assault.
(b) If the victim is a person under the age of
13 years, it is sufficient to allege that the
defendant unlawfully, willfully, and
feloniously did engage in a sex offense with a
child under the age of 13 years, naming the
child, and concluding as aforesaid. Any bill
of indictment containing the averments and
allegations herein named shall be good and
sufficient in law as an indictment for a sex
offense against a child under the age of 13
years and all lesser included offenses.
While section (b) of the statute provides specific requirements for
short-form indictments for sexual offenses committed againstpersons under the age of 13, the statute does not preclude short-
form indictments for sexual offenses committed against persons 13,
14, or 15 years old. Such an indictment would simply be governed
by section (a) of the statute. Accordingly, we conclude that N.C.
Gen. Stat. § 15-144.2 permits a short-form indictment for the crime
with which defendant was charged. See also State v. Wallace, 351
N.C. 481, 528 S.E.2d 326 (2000) (Upholding short-form indictments
for rape and sex offense), cert. denied, 531 U.S. 1018 (2000),
reh'g denied, 531 U.S. 1120 (2001).
Defendant also argues that because the “indictment does not
specify what 'sex offense' Mr[.] Daniels engaged in,” it is not
specific enough to clearly apprise defendant of the charge brought
against him.
As provided supra, the statute does not require the State to
provide the details of the alleged sexual offense in the
indictment. In fact, the statute specifically states that “it is
sufficient in describing a sex offense to allege that the accused
person unlawfully, willfully, and feloniously did engage in a sex
offense with the victim.” N.C. Gen. Stat. § 15-144.2(a) (2003).
In the case sub judice, the indictment in question reads as
follows:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant . . . unlawfully, willfully and
feloniously did engage in a sex offense with
[the victim], a child 13, 14 or 15 years old,
while the defendant was at least six years
older than [the victim], and the defendant was
at least 12 years old.
Thus, we conclude that the indictment contained sufficient
information under the statute.
No error.
Judges BRYANT and ELMORE concur.
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