State v Williams, (03-1335) 07/20/2004

Appeal by defendant from judgment entered 24 June 2003 by Judge W. Allen Cobb, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 15 June 2003.

Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

Geoffrey W. Hosford for the defendant.

    LEVINSON, Judge.

    Defendant appeals from convictions and judgments for two counts of sale of cocaine, contending that the trial court erred in not permitting him to withdrawal guilty pleas to these charges. We find no error.
    In case number 03 CRS 50863, defendant was indicted for possession with intent to sell and deliver cocaine and for sale and delivery of cocaine; the date of these alleged offenses was 21 January 2003. In case number 03 CRS 50870, defendant was indicted for possession with intent to sell and deliver cocaine and for sale and delivery of cocaine; the date of these alleged offenses was 19 February 2003. All of these charges came on for trial during the23 June 2003 criminal session of Sampson County Superior Court. Defendant waived his right to court-appointed counsel and appeared pro se.
    Pursuant to a plea arrangement, the State elected to proceed only on the two counts of sale of cocaine. The trial court asked defendant how he wished to plead to those charges, to which defendant replied, “Guilty. But, Your Honor--”. Following some administrative questions by the trial court about whether defendant had waived his right to counsel and whether defendant had reviewed the documents pertaining to his case, defendant stated, “Before I pleaded guilty to that, I want to know what you were going to do with that type of sentence.” The trial court informed defendant that it did not know what the sentence would be without first hearing the facts, to which the defendant replied, “Oh, okay.”
    The trial court then asked defendant if he had discussed the plea arrangement with the district attorney and if he was ready to proceed. After an affirmative response, the trial court proceeded to advise defendant of the consequences of his guilty pleas pursuant to N.C.G.S. § 15A-1022(a) and to make the usual inquiries as to whether defendant's pleas were the product of an informed, voluntary choice pursuant to N.C.G.S. § 15A-1022(b). While addressing defendant, the trial court characterized the plea arrangement between defendant and the State as follows:
    The District Attorney tells me that you will plead to two counts of sell [sic] of cocaine and the remaining related charges will be dismissed, that's two counts of delivering and two counts of possession with intent to sell and deliver cocaine, and that the sentencing will be in the discretion of the court.
Defendant assented to the correctness of this characterization, indicated that he had entered into this arrangement of his own free will, admitted to being guilty of selling cocaine, and entered guilty pleas.
    After entering his pleas, defendant asked the court whether he could inquire as to what the sentence might be, and the court again told defendant that it could not respond to such an inquiry without being informed of the factual basis for the pleas. Defendant again responded, “Oh, okay.” The State offered a factual basis for the entry of the plea and submitted that defendant had eight prior record points and should be sentenced at a Level III. Defendant was given an opportunity to be heard with respect to the factual basis, which defendant used to tell the court that one of the cocaine sales was, in fact, made by another person but that “[the authorities] still put it on [defendant], so [he] took it.” The trial court asked defendant if he wanted to be heard before entry of judgment, to which defendant responded, “Yes sir; . . . I would like to have at least two weeks to get may affairs in order before doing the sentence or whatever, that the [c]ourt allow me.”
    The trial court sentenced defendant to two consecutive prison terms of sixteen to twenty months; both sentences were suspended, and defendant was placed on probation for thirty-six months and ordered to complete a 120 day active prison sentence as a condition of his probation. After the sentence was pronounced, defendant again requested that he be given two weeks “to get [his] affairs inorder.” The trial denied this request, and the following exchange occurred:
    DEFENDANT:    Your Honor, that's why I wanted to know before I made this deal.

    THE COURT:    I didn't know beforehand what your record was. I didn't know what the facts were. The plea was that the sentence was in the discretion of the [c]ourt. I heard your case, I have entered judgment, and that's the judgment of the [c]ourt.

    DEFENDANT:    Can I deny the deal then? Because that's what I'm telling you, I didn't know what was going on.

    THE COURT:    We have already been over that, Mr. Williams. He'll be in your custody, Mr. Sheriff.

Defendant was taken out of the courtroom; however, he was returned to the courtroom after indicating that he'd like to appeal from the trial court's judgment. The trial court requested that an attorney, Mr. White, speak with him. After doing so, Mr. White attended a bench conference with the prosecutor. Following the unrecorded bench conference, defendant addressed the trial court as follows:
    [Mr. White] told me to ask you what you were going to do to me before I take the plea. That's why I was asking that question. Because I wanted to take the trial, but it was in my best interest to plea. And that's why he told me to ask you what was you going to do to me before I take the plea. I told you I didn't understand what you were saying because he told me to ask you.

Despite his earlier acknowledgment that the plea agreement provided for sentencing to be left “in the discretion of the court”, defendant's apparent dissatisfaction with the sentence imposed was that he was not able to ascertain exactly what the sentence wouldbe before he entered a guilty plea and was not given two weeks to put his affairs in order prior to the beginning of the sentence. Indeed, after the sentence was pronounced, defendant told the court that his “whole plan” was to know what the sentence would be before he entered the guilty pleas.
    Defendant appeals from the convictions and judgments for sale of cocaine, contending that the trial court erred by (1) refusing to permit defendant to withdraw his guilty pleas, (2) improperly coercing defendant to plead guilty, and (3) permitting the prosecutor to review the transcript of plea with defendant. We are unpersuaded by these arguments.

    In his first argument on appeal, defendant argues that the trial court erred by refusing to permit him to withdraw his plea. We do not agree.
    Our Supreme Court has drawn the following distinction between a motion to withdraw a guilty plea prior to entry of judgment and a motion for appropriate relief seeking to have a plea set aside after sentence has been imposed:
        A motion for appropriate relief is a post-verdict motion (or a post-sentencing motion where there is no verdict) made to correct errors occurring prior to, during, and after a criminal trial. A party may make the motion after the verdict but not more than 10 days after entry of judgment. Entry of judgment occurs when sentence is pronounced. . . .

        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 forappropriate relief. A fundamental distinction exists between situations 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.

State v. Handy, 326 N.C. 532, 535-36, 391 S.E.2d 159, 160-61 (1990) (internal citations and quotation marks omitted). A defendant seeking to withdraw a guilty plea prior to the imposition of sentence “is generally accorded that right if he can show any fair and just reason.” Id. (citation omitted). “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.” Id. (citation omitted).
    In the instant case, defendant sought to withdraw his guilty plea after the court announced his sentence; therefore, his request to withdraw was a motion for appropriate relief. After careful review of the record, we are unpersuaded that the trial court was compelled to permit defendant to withdraw his plea to avoid manifest injustice. Prior to the trial court's acceptance of the plea, defendant indicated that he understood that he would be sentenced in the judge's discretion. In its discretion, the trial court imposed sentence and denied defendant's request for time to get his affairs in order before beginning his sentence. Only after the denial of his request to delay service of his sentence did defendant seek to avoid the effect of his guilty plea. On thesefacts, the trial court did not err in denying defendant's request to withdraw his guilty plea after sentenced had been pronounced. This assignment of error is overruled.

    In his second argument on appeal, defendant contends that the trial court improperly coerced defendant into entering a guilty plea. This contention lacks merit.
    “Essential to the preservation of the constitutional guarantee of a fair trial is the right of a criminal defendant to plead not guilty and force the State to establish his guilt beyond a reasonable doubt.” State v. Pait, 81 N.C. App. 286, 289, 343 S.E.2d 573, 575-76 (1986) (citation omitted). “The right to plead not guilty is absolute and neither the court nor the State should interfere with the free, unfettered exercise of that right; its surrender by a plea of guilty must be voluntary and with full knowledge and understanding of the consequences.” Id. As such, “[n]o person representing the State or any of its political subdivisions may bring improper pressure upon a defendant to induce a plea of guilty or no contest.” N.C.G.S. § 15A-1021(b) (2003).
    Our Supreme Court has held that a defendant's plea was not voluntary where, during the course of the trial, the presiding judge had a conference with prosecution and defense counsel and informed defendant's counsel that “he (the judge) was of the opinion that the jury was going to convict the defendant, and, if so, he felt inclined to give him a long sentence”, after which defendant changed his plea to guilty. State v. Benfield, 264 N.C.75, 76-77, 140 S.E.2d 706, 708 (1965). Likewise, the Court has held that a defendant's guilty pleas were not voluntary where, upon attempted entry of not-guilty pleas, the trial judge became visibly agitated, said in what appeared to be an angry voice that he was tired of “frivolous pleas,” and directed counsel to confer with defendant and return with an “honest plea”. Pait, 81 N.C. App. at 287, 288, 343 S.E.2d at 575.
    The record in the instant case is devoid of any conduct by the trial court that is even loosely comparable to the conduct which occurred in Benfield and Pait. Instead, in the present case, the transcript of the proceedings in superior court indicates that the trial court was patient, respectful, and procedure-oriented as it discussed the plea arrangements with defendant and accepted his guilty pleas. The trial court merely refused to inform defendant of the sentence he was going to impose before he had been informed of the facts of the case, and the record contains no evidence that the trial court implicitly or explicitly suggested that defendant was required to enter a guilty plea notwithstanding the fact that the trial court would not discuss the sentence it would impose. This assignment of error is overruled.