1. Appeal and Error_guilty plea_certiorari_motion for appropriate relief
The appeal of a defendant who had pled guilty was heard in the Court of Appeals even
though it did not fall within the statutory categories for appeals after pleading guilty where
defendant filed a petition for certiorari; certiorari was granted on the first assignment of error
(whether the plea was voluntary), as may be done when a defendant challenges the procedure
employed in accepting a guilty plea; and the second assignment of error (sentencing for both
larceny and possession of the stolen property) was heard on the court's own motion for
appropriate relief since the petition for certiorari was properly pending.
2. Criminal Law_guilty plea_knowing and voluntary
A guilty plea was knowing and voluntary where the transcript revealed a brief
misunderstanding but no further indication of any lack of comprehension by defendant.
3. Sentencing_breaking and entering and possession of stolen property_double
sentence
The trial court erred by sentencing defendant for both breaking and entering and for
possession of stolen property.
Judge THORNBURG concurring in the result only.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Leslie C. Rawls, for defendant-appellant.
GEER, Judge.
On appeal, defendant Carl Duncan Carter, Jr. contends, citing
State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982), that the trial
court should not have imposed sentences for both felony larceny of
property and possession of that stolen property. We agree and,therefore, arrest judgment on the charge of possession of stolen
goods or property. We otherwise affirm.
Defendant was charged in a single indictment with (1) breaking
and/or entering a residence with the intent of committing felony
larceny, (2) felony larceny of personal property valued at
$1035.00, and (3) possession of stolen goods or property.
Defendant pled guilty to all three counts in Rowan County District
Court. At the hearing on defendant's guilty plea, the prosecutor
offered the following unsworn summary by a lieutenant deputy as the
factual basis for the charges:
LIEUTENANT DEPUTY: Your Honor, we were
called out to the residence the 23rd day of
May, about 10:00 p.m. On our arrival to that
residence, we talked to another co-defendant,
which was Avery Bradley. He took us to the
residence where all the stolen goods were at.
All the stolen goods were recovered, all but
one .22 calibre [sic] handgun. Arrested him
at the time _ which we've already done him;
he's gone _ and he give me the names of
everybody else that was involved.
Mr. Carter was confronted by the
homeowners the last time they made entry to
the residence. He took off on foot. After
everybody cleared the scene, Mr. Carter and
the female suspect had come back to the
residence. They called, we come out there,
they met us out there, we took Mr. Carter into
custody and he wrote me, basically, a written
statement, confessing that he had been in the
residence and helped them take the items and
store them over at the next-door-neighbor's
house, next door to where the property was
recovered.
The trial judge accepted defendant's plea and proceeded with
sentencing. He found that defendant had 17 prior record points
and, as a result, had a prior record level of V (five). He
consolidated the charges of breaking and/or entering and felonylarceny and imposed a sentence of 12 to 15 months. He then imposed
a consecutive sentence of 12 to 15 months on the possession of
stolen goods or property charge. Immediately after sentencing,
defendant gave oral notice of appeal.
Defendant has made two assignments of error: (1) that the
trial court failed to properly determine that defendant's guilty
plea was made voluntarily, intelligently, and understandingly and
(2) that the trial court, by sentencing him for both larceny of
property and possession of that stolen property, violated Perry.
The preliminary issue is whether this Court has the authority to
hear defendant's appeal given that he entered a plea of guilty.
[1] "In North Carolina, a defendant's right to appeal in a
criminal proceeding is purely a creation of state statute." State
v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc.
review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Under N.C.
Gen. Stat. § 15A-1444 (2003), a defendant who has pled guilty has
only the right to appeal the following issues: (1) whether the
sentence is supported by the evidence (if the minimum term of
imprisonment does not fall within the presumptive range); (2)
whether the sentence results from an incorrect finding of the
defendant's prior record level under N.C. Gen. Stat. § 15A-1340.14
or the defendant's prior conviction level under N.C. Gen. Stat. §
15A-1340.21; (3) whether the sentence constitutes a type of
sentence not authorized by N.C. Gen. Stat. § 15A-1340.17 or § 15A-
1340.23 for the defendant's class of offense and prior record or
conviction level; (4) whether the trial court improperly denied the
defendant's motion to suppress; and (5) whether the trial courtimproperly denied the defendant's motion to withdraw his guilty
plea. State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d
545, 546-47 (2003). Defendant's appeal in this case does not fall
within any of these categories.
Recognizing this fact, defendant filed a petition for writ of
certiorari on 8 December 2003. The State contends that this Court,
under Rule 21 of the Rules of Appellate Procedure, does not have
authority to review defendant's arguments pursuant to a grant of
certiorari. See Pimental, 153 N.C. App. at 77, 568 S.E.2d at 872
(when defendant did not fail to take timely action, is not
attempting to appeal from an interlocutory order, and is not
seeking review of a denial of a motion for appropriate relief,
"this Court does not have the authority to issue a writ of
certiorari"). This Court, however, held in State v. Rhodes, 163
N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004), following State v.
Bolinger, 320 N.C. 596, 602-03, 359 S.E.2d 459, 462 (1987), that a
defendant may petition for writ of certiorari when he is
challenging the procedures employed in accepting a guilty plea.
Defendant is, therefore, entitled to petition for writ of
certiorari for review of his first assignment of error. In our
discretion, we allow defendant's petition to the extent that it
seeks review of defendant's first assignment of error. See also
State v. Barnett, 113 N.C. App. 69, 76, 437 S.E.2d 711, 715 (1993)
(allowing petition for writ of certiorari to challenge the trial
court's acceptance of his guilty pleas; also reversing sentence
under Perry). With respect to defendant's second assignment of error, since
a petition for writ of certiorari is properly pending before this
Court, we may consider defendant's arguments through a motion for
appropriate relief. Jamerson, 161 N.C. App. at 530, 588 S.E.2d at
547 (noting that appellate courts may rule on a motion for
appropriate relief "only when the defendant has either an appeal of
right or a properly pending petition for writ of certiorari").
Although defendant has not filed a motion for appropriate relief
with this Court, we may treat his petition for writ of certiorari
as such a motion or we may grant the relief on our own motion. See
N.C. Gen. Stat. § 15A-1420(d) (2003) ("At any time that a defendant
would be entitled to relief by motion for appropriate relief, the
court may grant such relief upon its own motion."). See also State
v. Jones, 161 N.C. App. 60, 64 n.1, 588 S.E.2d 5, 9 n.1 (2003)
("[S]ince defendant has an appeal of his motion to suppress
properly pending, this Court could address the jurisdictional
defect on its own motion for appropriate relief."), rev'd on other
grounds, 358 N.C. 473, 598 S.E.2d 125 (2004). We choose to address
defendant's second assignment of error upon our own motion for
appropriate relief.
[2] As for defendant's challenge to the procedures in
accepting his guilty plea, a court may accept a guilty plea only if
it is made knowingly and voluntarily. State v. Russell, 153 N.C.
App. 508, 511, 570 S.E.2d 245, 248 (2002). Here, the trial court
conducted the inquiry set out in N.C. Gen. Stat. § 15A-1022 (2003),
and defendant subsequently signed a transcript of plea under oath,
stating that he was entering into the plea of his own free will,fully understanding what he was doing. This Court has previously
held that "if the defendant signed a Transcript of Plea and the
record reveals the trial court made 'a careful inquiry' of the
defendant, it is sufficient to show the defendant's plea was
knowingly and voluntarily made, with full awareness of the direct
consequences." Russell, 153 N.C. App. at 511, 570 S.E.2d at 248
(quoting State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274,
277 (1998)). Defendant points to a single portion of the
transcript as suggesting that defendant "had trouble following the
judge's inquiries." The transcript, however, reveals only a brief
misunderstanding and contains no further indication of any lack of
comprehension by defendant. We, therefore, affirm the trial
court's acceptance of the guilty plea.
[3] As for defendant's second assignment of error, the trial
court sentenced defendant to two consecutive sentences: (1) 12 to
15 months for the consolidated charges of breaking and/or entering
and felony larceny; and (2) 12 to 15 months for possession of
stolen property. State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d
810, 817 (1982) precludes this double sentence: "[W]e hold that,
though a defendant may be indicted and tried on charges of larceny,
receiving, and possession of the same property, he may be convicted
of only one of those offenses." See also State v. Owens, 160 N.C.
App. 494, 498-99, 586 S.E.2d 519, 522-23 (2003) (although defendant
did not raise the issue on appeal, the Court, exercising discretion
under N.C.R. App. P. 2, ordered judgment arrested as to possession
and remanded for resentencing on larceny conviction); State v.
Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003) (afterholding that N.C.R. App. P. 10(b) does not apply to errors in
sentencing, court arrested judgment as to possession charge and
remanded for a new sentencing hearing).
Based on Perry, we arrest judgment on the charge of possession
of stolen goods or property. Because that charge was not
consolidated with any others, there is no need to remand for
resentencing.
No. 03 CR 54017, Count 1, Breaking and or Entering _ Affirmed.
No. 03 CR 54017, Count 2, Felony Larceny _ Affirmed.
No. 03 CR 54017, Count 3, Possession of Stolen Goods/Property
_ Judgment arrested.
Judge HUDSON concurs.
Judge THORNBURG concurs in result only.
THORNBURG, Judge, concurring in the result only.
Although I concur in the result ultimately reached by the
majority, I cannot agree with the majority's reasoning for granting
defendant's petition for writ of certiorari. Defendant's appeal is
not based on any of the six errors for which N.C. Gen. Stat. § 15A-
1444 allows an appeal as a matter of right to defendants who plead
guilty. Nor does defendant's appeal, or petition for writ of
certiorari, fall into one of the three situations in which we are
allowed to grant certiorari under N.C. R. App. P. 21. In the vast
majority of cases with similar facts, this Court has refused to
grant a writ of certiorari and dismissed the appeal. See State v.
Jamerson, 161 N.C. App. 527, 588 S.E.2d 545 (2003); State v. Nance,
155 N.C. App. 773, 574 S.E.2d 692 (2003); State v. Pimental, 153N.C. App. 69, 568 S.E.2d 867, disc. review denied, 356 N.C. 442,
573 S.E.2d 163 (2002); State v. Dickson, 151 N.C. App. 136, 564
S.E.2d 640 (2002).
Here, the majority relies on State v. Rhodes, 163 N.C. App.
191, 592 S.E.2d 731 (2004), for authority to grant a writ of
certiorari to address defendant's argument that the trial court
failed to properly determine whether defendant's guilty plea was
made voluntarily, intelligently and understandingly. In Rhodes,
this Court relied upon the Official Commentary to Article 58, N.C.
Gen. Stat. § 15A-1021 et seq. (2003), and State v. Bolinger, 320
N.C. 596, 359 S.E.2d 459 (1987), to conclude that defendants may
petition this Court for review pursuant to a petition for writ of
certiorari during the appeal period to claim that the procedural
requirements of Article 58 were violated. Rhodes, 163 N.C. App. at
194, 592 S.E.2d at 733. However, the Supreme Court in Bolinger did
not address the applicability of N.C. R. App. P. 21. The Court,
after concluding that the defendant was not entitled as a matter of
right to appellate review of his contention that the trial court
improperly accepted his plea and that the defendant failed to
petition the Court for a writ of certiorari, stated: “Neither party
to this appeal appears to have recognized the limited bases for
appellate review of judgments entered upon pleas of guilty. For
this reason we nevertheless choose to review the merits of
defendant's contentions.” Bolinger, 320 N.C. at 601-02, 359 S.E.2d
at 462. Thus, it does not appear that the Court in Bolinger
intended to sanction a general exception to our appellate rules. However, I agree with the majority that the acceptance of
defendant's guilty plea was without error and that defendant was
sentenced in violation of State v. Perry, 305 N.C. 225, 287 S.E.2d
810 (1982). As defendant was clearly sentenced in violation of
Perry, I believe it would be an appropriate exercise of this
Court's discretion under N.C. R. App. P. 2 to suspend the appellate
rules and grant defendant's petition for writ of certiorari in
order to review the sentencing issue. Thus, I concur in the result
only.
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