State v Edvin, (04-889) 04/05/2005

Appeal by defendant from judgment entered 7 September 1993 by Judge Henry V. Barnette, Jr. in Lee County Superior Court. Heard in the Court of Appeals 9 March 2005.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

Nora Henry Hargrove for defendant-appellant.

    STEELMAN, Judge.

    On 2 September 1993, defendant, Thomas Joseph Edvin, pled guilty to one count of attempted first-degree sex offense and one count of attempted first-degree rape of his four-year-old daughter. After the trial court accepted defendant's guilty plea, defense counsel informed the court he had discovered defendant had a history of mental problems. Counsel stated he was having trouble obtaining medical records, and requested the trial court's permission to submit an affidavit from defendant's father regarding defendant's mental problems if he was unable to obtain defendant's medical records. The State indicated it had no objection to the admission of such an affidavit at the sentencing hearing. The trial court continued the sentencing hearing to allow defensecounsel to obtain the medical records or the affidavit from defendant's father.
    On 7 September 1993, the trial court conducted defendant's sentencing hearing. The trial court found two aggravating factors: (1) defendant took advantage of a position of trust or confidence to commit the offenses; and (2) defendant had prior convictions for criminal offenses punishable by more than sixty days confinement. The trial court made no findings in mitigation. Defendant received two consecutive aggravated sentences of twenty years, for a total of forty years imprisonment, under the Fair Sentencing Act (N.C. Gen. Stat. § 15A-1340.1 to -1340.7, repealed 1993).
    Defendant's counsel gave timely notice of appeal, but died prior to perfecting the appeal. By order dated 3 June 2003, this Court granted defendant's petition for writ of certiorari for purposes of reviewing the trial court's judgments.

    In his first assignment of error, defendant contends he was deprived of his right to effective assistance of counsel when he was “allowed” to plead guilty, even though his attorney knew of his history of mental health problems.
    A defendant's right to appeal a conviction is “purely statutory.” State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995). Pursuant to N.C. Gen. Stat. § 15A-1444(e), “a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress,or the defendant has made an unsuccessful motion to withdraw the guilty plea.” State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
    In the instant case, defendant's ineffective assistance of counsel argument lies outside his right to appeal. As such, defendant is not entitled to appellate review as a matter of right since defendant did not attempt to withdraw his guilty plea, nor did this assignment of error deal with sentencing issues or the denial of a motion to suppress. This issue is not properly before this Court and we will not address it.
    In defendant's second assignment of error he contends that pursuant to N.C. Gen. Stat. § 15A-1023, the trial court should have intervened ex mero motu and declined to accept the plea due to defendant's “significant mental health issues.” We disagree.
    There was no plea bargain as to sentence in this case therefore, sub-section (c) of N.C. Gen. Stat. § 15A-1023 is applicable. In such instances, “[t]he judge must accept the plea if he determines that the plea is the product of the informed choice of the defendant and that there is a factual basis for the plea.” N.C. Gen. Stat. § 15A-1023(c) (2004). “Where the evidence supports the findings that defendant entered a plea of guilty voluntarily and with full knowledge of his rights, the acceptance of the plea will not be disturbed.” State v. Jones, 278 N.C. 259, 264, 179 S.E.2d 433, 436-37 (1971).
    Before the trial judge accepted defendant's guilty plea, he addressed defendant personally and informed him of all the mattersset forth in N.C. Gen. Stat. § 15A-1022. The trial court questioned defendant about whether he understood his guilty plea, informed defendant that he faced a possible sentence of forty years imprisonment, and inquired whether defendant had discussed the guilty plea with his attorney. Nothing in the transcripts of the guilty plea proceedings indicates defendant exhibited any inappropriate behavior or anything that would raise a question as to his capacity. Following the State's summation of the evidence, the trial judge stated:
        I'll find there's a factual basis for the entry of the plea, that the defendant is satisfied with his lawyer, the defendant is competent to stand trial, and the plea is the informed choice of the defendant. It is made freely, voluntary, and understandingly. Based upon this the court will accept the plea.
    While defense counsel subsequently informed the court he believed defendant had a history of depression, there was nothing to indicate defendant was suffering from “severe mental problems” at the time the plea was entered. Neither defendant's trial counsel nor his appellate counsel specifically alleged defendant was incompetent when he entered his guilty plea or made a motion for appropriate relief. Further, trial counsel did not mention defendant's “history” until after the judge had accepted defendant's guilty plea. Defense counsel only raised the issue prior to the sentencing hearing. It is apparent from the record that defense counsel intended to offer the information concerning defendant's mental condition as a factor in mitigation at sentencing.     Based on the foregoing, the trial court did not err in accepting defendant's guilty plea. This assignment of error is without merit.

    Defendant's third and fourth assignments of error pertain to his sentencing hearing. Defendant contends effective appellate review cannot take place in the absence of a transcript of his sentencing hearing. We agree.
    Indigents are to be provided free transcripts of prior proceedings if it is needed for an effective defense or appeal. State v. Jackson, 59 N.C. App. 615, 618, 297 S.E.2d 610, 612 (1982) (citing Britt v. North Carolina, 404 U.S. 226, 30 L. Ed. 2d 400 (1971)). When determining the need for a transcript in a particular case, our courts look at two factors: (1) the value of the transcript to the defendant regarding the reason it is sought; and (2) whether any alternatives are available that are substantially equivalent to a transcript. Britt, 404 U.S. at 227, 30 L.Ed. 2d at 403-04. “Further, where, as here, new counsel represents the indigent on appeal, counsel cannot effectively represent his client or assign plain error without the benefit of a complete transcript.” State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817 (2000) (citing Hardy v. United States, 375 U.S. 277, 279-80, 11 L. Ed. 2d 331, 334, (1964)). If there is no transcript of the hearing, and an adequate record of what transpired cannot be reconstructed, the matter must be remanded fora new sentencing hearing. See In re Rholetter, 162 N.C. App. 653, 664, 592 S.E.2d 237, 244 (2004).
    In this case, the court reporter never made a transcript of the sentencing hearing and the tapes of the hearing were lost, thus a transcript of defendant's sentencing hearing cannot be prepared. Further, there are no viable alternates available to develop an adequate record of what transpired. Defendant's trial counsel is dead, the assistant district attorney is unavailable, and there is no other record except the court reporter's notes of that hearing. The State concedes the court reporter's abbreviated notes shed little light on the substance of the proceedings. Without a transcript, this Court is unable to engage in meaningful appellate review of defendant's contention that the trial court erred in failing to find factors in mitigation at the sentencing hearing. We therefore vacate defendant's sentence and remand the matter to the trial court for a new sentencing hearing.