An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-792


Filed: 17 August 2004



v .                         Wake County
                            No.     02 CRS 29771
                                02 CRS 29773
                                02 CRS 67780


    Appeal by defendant from judgment entered 15 October 2002 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 17 March 2004.

    Attorney General Roy Cooper by Assistant Attorney General Daniel P. O'Brien for the State.

    Russell J. Hollers, III for the defendant-appellant.

    ELMORE, Judge.

    Derrick Lyons (defendant) appeals from a judgment entered upon his guilty plea to two counts each of possession with intent to sell and deliver cocaine, sale, and delivery of cocaine, as well as his admission establishing his status as an habitual felon. For the reasons stated herein we affirm.
    The State asserts that on 15 November 2002 defendant sold two rocks of crack cocaine to a man who was working in conjunction with the Wake County Sheriff's Office and the Fuquay-Varina Police Department. On 28 November 2002, defendant again sold the man tworocks of crack cocaine. The State asserted before the trial court that a video camera conclusively showed that it was defendant who sold the drugs.
    On 21 May 2002 defendant was indicted by a grand jury, for two counts each of possession with intent to sell and deliver, sale, and delivery of cocaine. On 13 August 2002 defendant was indicted as an habitual felon. On 15 October 2002 defendant pleaded guilty to all the charges. Defendant stipulated to a Prior Record Level of V. All the charges were consolidated for sentencing into one judgment, and defendant was sentenced to a single term of imprisonment for 121-155 months. On 17 October 2002 defendant filed written notice of appeal and also filed a motion to withdraw his guilty plea. In an order dated 4 November 2002 the trial court denied the motion.

    As a preliminary matter, section 15A-1444 of our General Statutes states that “[e]xcept as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.” N.C. Gen. Stat. § 15A-1444(e) (2003). The defendant filed his appeal and his motion to withdraw his guilty plea simultaneously. Generally, a defendant in this situation should first file his motion to withdraw his pleaand file his appeal only when the trial court has first ruled on that motion. We hold that this error on defendant's part is harmless, and note that he was proceeding pro se at that point. Because the trial court has denied the defendant's motion to withdraw his plea, we will consider the appeal as a petition for certiorari and we grant certiorari. N.C.R. App. P. 21(a)(1) (2004).
    First, defendant argues that the trial court erred in accepting his plea of guilty to habitual felon status without a factual basis for the plea. Defendant failed to lodge an objection on this issue in the trial court and to obtain a ruling from the court. Thus, under Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure, this issue was not preserved for appellate review. N.C.R. App. P. 10(b)(1) (2004); State v. Aldridge, 139 N.C. App. 706, 713, 534 S.E.2d 629, 635, appeal dismissed and disc. review denied, 353 N.C. 269, 546 S.E.2d 114 (2000).
    The statute upon which defendant relies, N.C. Gen. Stat. § 15A-1022, provides that “[t]he judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea.” N.C. Gen. Stat. § 15A-1022(c) (2003). Here the trial court announced its determination, in open court, that there was a factual basis for the plea, and defendant did not object to the court's determination. Thus, the court complied with the statute.     We also note that the statute is permissive as to the matters upon which the court's determination may be based. The statute provides:
        (c) The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:
        (1)    A statement of the facts by the prosecutor.
        (2)    A written statement of the defendant.
        (3)    An examination of the presentence report.
        (4)    Sworn testimony, which may include reliable hearsay.
        (5)    A statement of facts by the defense counsel.

N.C. Gen. Stat. § 15A-1022(c) (2003).
    In this case, the record reflects that the court was presented with and examined defendant's habitual felon worksheet, as well as the worksheet of his prior convictions. The worksheet is not included in the record on appeal. The indictment listed three separate felonies with the respective case numbers: a breaking, entering, and larceny committed in 1987; a common law robbery committed in 1989; and possession of cocaine committed in 1992. Further, prior to sentencing, defense counsel stated his and defendant's recognition of defendant's habitual felon status. We therefore hold that trial court had before it sufficient information from which to conclude that there was a factual basis for the plea to habitual felon status.
    Moreover, a reversal may be granted in a criminal matter only if “there is reasonable possibility that, had the error in question not been committed, a different result would have been reached.” N.C. Gen. Stat. § 15A-1443(a) (2003). The burden of showing prejudice from a statutory error is on the defendant. Id.; see also State v. Loren, 302 N.C. 607, 613, 276 S.E.2d 365, 369 (1981). Here, defendant does not address in his brief the issue of prejudice to his case, or argue that any of the convictions supporting habitual felon status was an error or was not a true conviction. Thus this assignment of error is without merit.
    Second, defendant assigns error to the trial court's denial of his motion to withdraw his guilty plea. Defendant pleaded guilty as the trial court began jury selection. The trial court accepted defendant's guilty plea as to all charges. The defendant, in his plea, also admitted to being an habitual felon. The trial court sentenced defendant the same day. Two days later defendant filed his motion to withdraw the pleas and also filed his notice of appeal to this Court.
    Our Supreme Court has determined that there is a difference in our standard of review when a defendant has waited until after the sentence is determined to attempt to withdraw his guilty plea. In the case of State v. Handy, 326 N.C. 532, 391 S.E.2d 159 (1990), the Court reasoned:
        Had defendant waited to challenge his plea of guilty until after the jury had recommended and the trial court had imposed a sentence, it would have required the filing of a motion for appropriate relief. A motion to withdraw a guilty plea made before sentencing is significantly different from a post-judgment or collateral attack on such a plea, which would be by a motion for appropriate relief. A fundamental distinction exists betweensituations in which a defendant pleads guilty but changes his mind and seeks to withdraw the plea before sentencing and in which a defendant only attempts to withdraw the guilty plea after he hears and is dissatisfied with the sentence. This distinction creates the need for differing legal standards for adjudicating such motions to withdraw guilty pleas, a distinction recognized by most courts.
        In a case where the defendant seeks to withdraw his guilty plea before sentence, he is generally accorded that right if he can show any fair and just reason.
        On the other hand, where the guilty plea is sought to be withdrawn by the defendant after sentence, it should be granted only to avoid manifest injustice.

State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (citations omitted).
    Because the defendant sought to withdraw his guilty plea after his sentence had been determined by the trial court, his motion could only be granted to avoid manifest injustice. Defendant argues that the trial court herself packed the court with uniformed officers to intimidate the defendant into pleading, citing the trial court's post-sentencing remarks in support. Those remarks, within their context, were as follows:
        [The Court]:    I'd like to put on the record, Madam Court Reporter, that at such time as the defendant appeared to be truculent, instantly the Deputy Sheriff let me know that, and shortly thereafter the witnesses in this case who were law enforcement officers and additional Sheriff's Deputies were sent to the courtroom.
            The court is of the opinion and wants the record to reflect that the defendant would not have entered a plea of guilty and accepted responsibility had he not seen that any choice to behave differently was going to result in an unhappy resolution.            At all times the Sheriff's Department and the law enforcement officers in the courtroom maintained a very quiet, low, calm, intense, aware presence, such that the Court herself, being a female Court, began at times to forget they were even there. And yet they never forgot why they were there, and the Court wants to thank them for keeping what could have been a very bad situation from happening.
            This is what professionalism in law enforcement is all about, not what the public perceives as beating up innocent people, but preventing bad things from happening by strong, quiet presence...

    In this case, the remarks of the trial court, while perhaps not entirely appropriate, were not prejudicial to the defendant and do not establish defendant's claim of intimidation. The trial court was attempting to express gratitude to the law enforcement officers for their presence. Their presence was appropriate because they were witnesses in the case. The trial court's remarks do not suggest that in addition to merely being in the courtroom the officers took any action which would intimidate the defendant. We hold that this remark of the trial court did not show manifest injustice against the defendant. Therefore, this assignment of error has no merit.
    Lastly, defendant assigns error to the trial court's failure to conduct an evidentiary hearing on defendant's motion to withdraw his guilty plea. Because defendant's motion was made post- sentencing, we treat it as a motion for appropriate relief. Handy, 326 N.C. at 536, 391 S.E.2d at 161.    A party is entitled to a hearing on questions of law or fact arising from a motion for appropriate relief “unless the court determines that the motion is without merit.” N.C. Gen. Stat. § 15A-1420(c)(1) (2003). Bare allegations are not enough to establish the need for an evidentiary hearing. State v. Aiken, 73 N.C. App. 487, 501, 326 S.E.2d 919, 927, appeal dismissed and disc. review denied, 313 N.C. 604, 332 S.E.2d 180-81 (1985). Further, “[a] defendant who seeks [appropriate] relief by a motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears.” N.C. Gen. Stat. § 15A-1420(c)(6) (2003).
    Here, defendant's motion to withdraw his guilty plea does not raise issues of ineffective assistance of counsel or bring any other allegations about the fairness of the plea and sentencing process. He did not raise any issue which requires further evidentiary development. Defendant argues on appeal that the trial court did not ask enough questions when defendant once attempted to change attorneys. However, defendant shows on appeal no defect in the representation he was rendered, and no prejudice by the trial court's denial of his request to hire a new attorney. Under the circumstances, the trial court appropriately denied the motion, and no evidentiary hearing was necessary.
    Defendant's remaining assignments of error were not argued in his brief and are therefore deemed waived under the North Carolina Rules of Appellate Procedure, Rule 28(a).
    Judges McCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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