Appeal by defendant from judgment entered 12 November 2003 by
Judge C. Phillip Ginn in Cherokee County Superior Court. Heard in
the Court of Appeals 13 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Brian C. Wilks, for the State.
Eric A. Bach, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Charles David McTaggart (“defendant”) appeals his conviction
and sentencing for conspiracy to distribute four to fourteen grams
of methadone. For reasons stated herein, we vacate defendant's
conviction and remand this matter to the trial court for additional
proceedings in accord with this opinion.
On 7 July 2003, defendant was indicted on one count of
conspiracy to traffic by delivering, transporting and possessing
four grams or more but less than fourteen grams of methadone in
violation of N.C. Gen. Stat. § 90-95(i). On 12 November 2003,
defendant pled guilty to the offense. Defendant was sentenced to
an active term of imprisonment of seventy months minimum and
eighty-four months maximum. Defendant appeals.
We note initially that the State has filed a motion to dismiss
defendant's appeal, asserting that, pursuant to N.C. Gen. Stat. §
15A-1444, defendant has no statutory right to appeal.
Any right defendant might have to appeal a conviction is
“purely statutory.” State v. Shoff, 118 N.C. App. 724, 725, 456
S.E.2d 875, 876 (1995), aff'd per curiam, 342 N.C. 638, 466 S.E.2d
277 (1996). Sections 15A-1444(a1) and (a2) set out the
circumstances under which a defendant may appeal as a matter of
right. The statute provides three exceptions to the general rule
that a defendant who has pled guilty has no appeal of right: (1)
the defendant's motion to suppress has been denied; (2) the
defendant has made an unsuccessful motion to withdraw a guilty
plea; or (3) the defendant is appealing statutorily specified
sentencing issues. N.C. Gen. Stat. § 15A-1444(e)(2003). See State
v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, cert. denied, 356
N.C. 442, 573 S.E.2d 163 (2002); State v. Moore, 156 N.C. App. 693,
577 S.E.2d 354 (2003).
In the instant case, defendant, with the assistance of
counsel, entered a plea of guilty to one count of conspiracy to
traffic by delivering, transporting and by possessing four grams or
more but less than fourteen grams of methadone in violation of N.C.
Gen. Stat. § 90-95(i). He was sentenced to the statutorily
required minimum seventy months and maximum eighty-four months of
imprisonment pursuant to N.C. Gen. Stat. § 90-95(h)(4). Defendanthas not met the criteria of any of the exceptions of N.C. Gen.
Stat. § 15A-1444(e) and therefore has no statutory right of appeal.
Although we agree with the State that defendant has no statutory
right of appeal, in light of the issues presented, we elect to
treat defendant's appeal as a petition for writ of certiorari and
grant that petition. See N.C.R. App. P. 21; State v. Jarman, 140
N.C. App. 198, 535 S.E.2d 875 (2000); State v. Linemann, 135 N.C.
App. 734, 522 S.E.2d 781 (1999).
The dispositive issue on appeal is whether the trial court's
failure to accurately inform defendant of the mandatory sentence to
which he was exposed invalidates his plea.
The acceptance of guilty pleas in the superior courts of North
Carolina is governed by N.C. Gen. Stat. § 15A-1022. The statute
specifies seven areas of information and inquiry that the trial
court must review with the defendant prior to accepting a guilty
plea:
(1) Informing him that he has a right to
remain silent and that any statement he makes
may be used against him;
(2) Determining that he understands the nature
of the charge;
(3) Informing him that he has a right to plead
not guilty;
(4) Informing him that by his plea he waives
his right to trial by jury and his right to be
confronted by the witnesses against him;
(5) Determining that the defendant, if
represented by counsel, is satisfied with his
representation;
(6) Informing him of the maximum possible
sentence on the charge for the class of
offense for which the defendant is being
sentenced, including that possible from
consecutive sentences, and of the mandatory
minimum sentence, if any, on the charge; and (7) Informing him that if he is not a citizen
of the United States of America, a plea of
guilty or no contest may result in
deportation, the exclusion from admission to
this country, or the denial of naturalization
under federal law.
N.C. Gen. Stat. § 15A-1022 (2003) (emphasis added). In the
instant case, the trial judge informed defendant of the correct
minimum sentence and fine; however, the court did not inform
defendant of the correct maximum sentence. The relevant colloquy
between the bench and defendant was as follows:
Q. Do you understand that you're
pleading guilty to the charge of
conspiracy to traffic in opiates,
which is a Class F felony with a
maximum punishment_well actually
the minimum is the maximum is it
not?
Mr. Brown [prosecutor]: Yes sir.
Mr. Sumpter [defense counsel]:
We've discussed that and I've
informed Mr. McTaggart about that.
Q. Under normal circumstances a
Class F is 59 months, but because
of the charges you have a minimum
time of 70 months plus a $50,000
fine, which is in fact greater than
the normal minimum. Do you
understand that?
A. Yes sir.
Q. In actuality the maximum and
the minimum, really, in one sense
of the word is 70 months plus a
$50,000 fine. Do you understand
that?
A. Yes sir.
The parties concede the correct minimum sentence in this case is
seventy months plus a $50,000.00 fine and the correct maximumsentence is eighty-four months. Clearly, the trial court did not
inform defendant of “the maximum possible sentence” as required
by N.C. Gen. Stat. § 15A-1022.
Where the trial court fails to comply strictly with the
procedural requirements of § 15A-1022, defendant must show that
he was prejudiced as a result.
State v. Hendricks, 138 N.C. App.
668, 670, 531 S.E.2d 896, 898 (2000). “[W]e must look to the
totality of the circumstances and determine whether non-
compliance with the statute either affected defendant's decision
to plead or undermined the plea's validity.”
Id. The colloquy
between the trial court and the defendant together with the
transcript of plea
are important in looking at the totality of
circumstances.
Id. For a defendant's plea to be voluntary, the
defendant must understand the nature and the consequences of his
plea of guilty. If the defendant does not comprehend the
consequences of his plea, his plea is invalid.
State v. Smith,
352 N.C. 531, 551, 532 S.E.2d 773, 786 (2000),
cert. denied, 532
U.S. 949, 149 L. Ed. 2d 360 (2001) (explaining
State v. Barts,
321 N.C. 170, 176, 362 S.E.2d 235, 238 (1987)).
In the instant case we make several observations. We note
from the transcript of plea that the highest level of education
completed by defendant was tenth grade and that the State
stipulated that defendant provided substantial assistance to the
State. We also note that not only did the court fail to inform
defendant of the maximum sentence, but an incorrect maximum was
listed on the sentencing worksheet attached to the transcript ofplea. The maximum sentence listed on that worksheet is “59 mos
(sub. to stat. minimums).” Neither defendant's counsel nor the
trial judge realized the error.
The trial court and defense
counsel incorrectly assessed the maximum sentence to which
defendant was exposed. There is no evidence in the instant case
that anyone accurately explained the maximum sentence to
defendant prior to entry of his plea. Because the maximum
sentence determines the projected prison release date, defendant
faced an additional fourteen months of imprisonment. The
increase in defendant's period of confinement calls into question
the voluntariness of his guilty plea.
Under the facts of this
case, the trial court's failure to inform defendant of the
consequences of his plea undermines the validity of defendant's
plea.
Accordingly, we vacate defendant's guilty plea and remand
this matter to the trial court for further proceedings in accord
with this opinion.
In light of our disposition, we do not reach the other
issues presented by defendant on appeal.
Vacated and remanded for a new trial.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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