An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1580


Filed: 21 June 2005


         v.                        McDowell County
                                Nos. 04 CRS 746-749

    Appeal by defendant from judgments entered 18 May 2004 by Judge C. Philip Ginn in Superior Court, McDowell County. Heard in the Court of Appeals 30 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    Charlotte Gail Blake for defendant-appellant.

    McGEE, Judge.

    Defendant entered Alford pleas on 18 May 2004 to four counts of sexual activity by a substitute parent, one count of violating a domestic violence protective order, one count of violating a court order and one count of assaulting a female. The plea agreement provided, inter alia, that defendant would be sentenced on the four counts of sexual activity by a substitute parent and sentencing would be in the trial court's discretion. The trial court conducted a full inquiry with defendant regarding the voluntariness of his plea and informed defendant that the possible total maximum sentence was 392 months plus 390 days. Defendant stipulated to a factual basis for the plea and the State offered afactual summary. The trial court consolidated the misdemeanor charges into the felonies and sentenced defendant within the presumptive range for a Class E, Level IV felon to four consecutive sentences of 45 to 63 months, which totaled to 180 to 252 months, or 15 to 21 years.
    A week later, defendant appeared before the trial court and moved to withdraw his pleas. Defendant informed the trial court that his attorney brought him a piece of paper that had Level V written down and that his attorney talked to him about 17 years. Defendant stated he believed he was a Level IV felon and therefore "was under the understanding that the most [he] could receive was 17 years." Defendant further stated that his impression was that the maximum of 17 years was for a Level V, and he figured for a Level IV, "surely no more than 10 [years]." He stated that he would never have accepted a plea knowing he would be sentenced to 21 years. The trial court informed defendant that was the maximum sentence, not the minimum, and that in the discretion of the court, defendant's plea would not be set aside. Defendant appeals.
    Defendant assigns error to the trial court's denial of his motion to withdraw his guilty plea made post-sentencing. Our Supreme Court has recognized that motions to withdraw pleas after sentencing are motions for appropriate relief, State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990), and "should be granted only to avoid manifest injustice." Id. (citation omitted).
    Prior to the trial court's acceptance of defendant's plea, defendant indicated that he understood that he would be sentencedin the judge's discretion. He further indicated that he understood the total maximum possible sentence in his case was 392 months plus 390 days. In its discretion, the trial court imposed a sentence which totaled 180 to 252 months. Nevertheless, defendant's dissatisfaction with the sentence was that it was more than what he "figured" his sentence should be. On these facts, there is no showing of manifest injustice to defendant and the trial court did not err in denying defendant's request to withdraw his guilty plea after sentence had been imposed. This assignment of error is overruled.
    Defendant also contends the trial court erred in failing to conduct an evidentiary hearing on defendant's motion to withdraw his guilty plea. Defendant argues he was entitled to an evidentiary hearing because his oral motion to withdraw raised questions of the voluntariness of his plea and ineffective assistance of counsel.
    Again, because defendant's motion was made post-sentencing, the motion is treated as a motion for appropriate relief. Handy, 326 N.C. at 536, 391 S.E.2d at 161. A defendant 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). Thus, a defendant is not entitled to a hearing on a motion for appropriate relief if it can be determined from the motion itself that the defendant is not entitled to relief. See State v. McHone, 348 N.C. 254, 257, 499 S.E.2d 761, 763 (1998). Further, "[a] defendant whoseeks relief by 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).
    In this case, defendant's oral motion to withdraw his plea did not raise issues of ineffective assistance of counsel or bring to the court's attention any other allegations about the fairness of the plea and sentencing process, nor did it raise any issue which requires further evidentiary development. In fact, defendant admitted to the trial court that his attorney had discussed with him the possibility of a lengthy sentence. Furthermore, defendant's signed transcript of plea and his responses during the entry of plea reflect that defendant's plea was voluntarily entered. The trial court did not err in denying defendant's motion without conducting an evidentiary hearing.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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