An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1190


Filed: 19 July 2005


v .                         Cherokee County
                            No. 03 CRS 2432

    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.


    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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