An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-290


Filed: 7 February 2006


     v .                              Rowan County
                                      No. 03 CRS 050259

    Appeal by defendant from judgment entered 15 October 2004 by Judge Kimberly S. Taylor in Rowan County Superior Court. Heard in the Court of Appeals 3 November 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

    Bruce T. Cunningham for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (Quentin Taiwan Williamson) appeals from conviction and judgment for robbery with a dangerous weapon and assault with a deadly weapon. We hold that he received a fair trial, free from prejudicial error.

    At defendant's trial, the State presented evidence which tended to show the following: On the evening of 9 January 2003, the defendant was the passenger in a vehicle being driven by the victim, Sumo Jaryan. Defendant produced a silver nine-millimeter handgun and told Jaryan, “If you don't give me your money, I'm going to blow your head off.” Jaryan grabbed the gun, and a struggle ensued, during which defendant struck Jaryan on the browwith the gun. The vehicle was in motion, and Jaryan applied the accelerator. A shot, which missed Jaryan, was fired as the vehicle moved. Eventually, the vehicle hit a tree and stopped, after which defendant pulled Jaryan from the car, kicked him repeatedly, and stole $165 from his pocket. Jaryan was treated at a local emergency room for a one-inch laceration and swelling above his left eye, minor cuts and abrasions on his hands, bruises and cuts on his hands and stomach, loose teeth, and a sore back. The cut above Jaryan's eye required five stitches. An officer with the Kannapolis Police Department searched the vehicle for evidence that a gun was fired. He identified a hole in the back of the driver's seat that “may have been a bullet hole, but [he] could not definitely say it was.”
    Defendant testified that he was not in the car with Jaryan at the time of the assault, and he denied assaulting or robbing Jaryan. In addition, he testified that he did not own a gun.
    The trial court instructed the jury that it could return verdicts of guilty or not guilty of robbery with a dangerous weapon and guilty or not guilty of assault with a dangerous weapon. After beginning its deliberations, the jury sent the judge a note which stated:
    [T]here is still reasonable doubt that a gun was even involved in this crime. Since both charges [against] the defendant involve a firearm, the jury request[s] to see all photos taken at the scene of the crime. The jury believes that is the main evidence we need to give the State of North Carolina & the defendant a fair & unbias[ed] verdict.

The requested exhibits were provided to the jury.     Thereafter, the prosecution and defendant apparently conducted negotiations concerning a possible plea bargain. According to defendant, the State agreed to a plea bargain pursuant to which defendant would plead guilty to common law robbery and be sentenced in the discretion of the trial court. Defendant prepared and signed a Transcript of Plea. Before the prosecutor signed the Transcript of Plea, the jury indicated that it had reached a verdict. Defendant requested that the trial court accept the purported plea bargain rather than accept the jury's verdict, and the following colloquy ensued:
        THE COURT: . . . Go ahead and bring the jury in.

        [DEFENSE COUNSEL]:    Your Honor, we have filled out the plea transcript.

        THE COURT: . . . [T]he jury's been out this long. I'm going to let the jury tell us what [its] verdict is.

The jury returned verdicts of guilty of robbery with a dangerous weapon and guilty of assault with a deadly weapon, and the trial court entered a consolidated judgment imposing a sentence of 115 to 147 months of imprisonment.
    Defendant now appeals.
    In his first argument on appeal, defendant contends that the trial court committed plain error by failing to submit common law robbery to the jury as a lesser included offense of robbery with a dangerous weapon. This contention lacks merit.
    As defendant failed to object to the alleged omission, our review is limited to whether the trial court's instructionsamounted to plain error. See N.C. R. App. P. 10(c)(4) (2005). “In deciding whether a defect in the jury instruction constitutes 'plain error,' [an] appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).
    A defendant is entitled to an instruction on a lesser included offense only if “'the evidence “would permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater.”'” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations omitted). “The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). Thus, “[w]here the State's evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser . . . offense,” the trial court need not instruct on the lesser offense. State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). Indeed, “'[a] defendant is not entitled to an instruction on a lesser . . . offense merely because the jury could possibly believe some of the state's evidence but not all of it.'” State v. Leazer, 353 N.C. 234, 240, 539 S.E.2d 922, 926 (2000) (citation omitted). A defendant's denial that he committed the offense at all is not sufficient to warrantthe submission of an alternative offense to the jury. State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 843 (1991).
    Robbery with a dangerous weapon is defined as: “(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998); N.C. Gen. Stat. § 14-87 (2003). Common law robbery is “'the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.'” State v. Jones, 339 N.C. 114, 164, 451 S.E.2d 826, 854 (1994), reh'g denied, 339 N.C. 618, 453 S.E.2d 188, cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995) (citation omitted). Common law robbery is a lesser included offense of robbery with a dangerous weapon; the difference between these offenses is that common law robbery requires the forcible taking of another's property by the use, or threatened use, of violence but does not require the use or threatened use of a dangerous weapon, which is required for a conviction of robbery with a dangerous weapon. State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913 (2002).
    In the instant case, the State produced evidence of each element of robbery with a dangerous weapon. Defendant's testimony was that he did not commit any robbery at all. Though defendant specifically testified that he did not own a gun, his testimony amounted to a wholesale denial of the offense, which wasinsufficient to warrant an instruction on common law robbery.
    The corresponding assignment of error is overruled.
    Defendant also contends that he received ineffective assistance of counsel because his attorney failed to request an instruction for common law robbery. We disagree.
    To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his trial counsel “made errors so serious as to support a finding that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment [of the Federal Constitution],” and (2) “there is a reasonable probability that, but for counsel's errors, there would have been a different result [at trial].” State v. Fisher, 318 N.C. 512, 533-34, 350 S.E.2d 334, 346-47 (1986) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). Given our holding that defendant was not entitled to have common law robbery submitted to the jury as a lesser included offense, the failure to request such an instruction does not constitute an error so serious that it essentially deprived defendant of counsel, and there is no reasonable probability that, but for counsel's failure to request such an instruction, there would have been a different result at trial.
    This assignment of error is overruled.
    Defendant has also filed a Motion for Appropriate Relief in which he contends that the trial court's decision to take thejury's verdict rather than formally accept or reject his plea bargain amounted to constitutional error. Specifically, defendant alleges a violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Section 6 of the North Carolina Constitution.
    As an initial matter, we note that this argument should not have been brought before this Court via a motion for appropriate relief. “Motions for appropriate relief generally allow defendants to raise arguments that could not have been raised in an original appeal, such as claims based on newly discovered evidence and claims based on rights arising by reason of later constitutional decisions announcing new principles or changes in the law.” State v. Price, 331 N.C. 620, 630, 418 S.E.2d 169, 174 (1992), vacated on other grounds and remanded for reconsideration, 506 U.S. 1043, 122 L. Ed. 2d 113, mandate reinstated, 334 N.C. 615, 433 S.E.2d 746 (1993), vacated on other grounds and remanded for reconsideration, 512 U.S. 1249, 129 L. Ed. 2d 888-89, mandate reinstated, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, 514 U.S. 1021, 131 L. Ed. 2d 224, reh'g denied, 514 U.S. 1124, 131 L. Ed. 2d 879 (1995). “Motions for appropriate relief may not be used to add to an appeal new arguments which could have been raised in the briefs originally filed.” Id. In the instant case, defendant's Motion for Appropriate Relief is not premised upon newly discovered evidence or subsequent changes in applicable constitutional law, and the record reveals that defendant could have assigned error to, and briefed arguments challenging, the refusal of the trial court toconsider a plea bargain.   (See footnote 1)  Accordingly, defendant's Motion for Appropriate Relief is improper and is subject to dismissal.
    Even assuming arguendo that the Motion is properly before this Court, it is without merit. Section 15A-1023(b) of the North Carolina General Statutes provides the following guidance concerning plea bargains which require judicial approval:
        Before accepting a plea pursuant to a plea arrangement in which the prosecutor has agreed to recommend a particular sentence, the judge must advise the parties whether he approves the arrangement and will dispose of the case accordingly. If the judge rejects the arrangement, he must so inform the parties, refuse to accept the defendant's plea of guilty or no contest, and advise the defendant personally that neither the State nor the defendant is bound by the rejected arrangement. The judge must advise the parties of the reasons he rejected the arrangement and afford them an opportunity to modify the arrangement accordingly. Upon rejection of the plea arrangement by the judge the defendant is entitled to a continuance until the next session of court. A decision by the judge disapproving a plea arrangement is not subject to appeal.

N.C. Gen. Stat. § 15A-1023(b) (2005). A trial court has broad discretion to refuse to accept a plea arrangement for which approval is required under section 15A-1023(b). State v. Lineberger, 342 N.C. 599, 607, 467 S.E.2d 24, 28, reh'g denied, 342 N.C. 898, 467 S.E.2d 899 (1996). As such, a trial court may permissibly decline to accept a plea arrangement on the ground that the jury has already arrived at a verdict.    Though section 15A-1023(b) sets forth formal procedures for acceptance or rejection of a plea bargain, the plain language of this section clearly contemplates a plea bargain which is not synchronous with the jury's indication that it has reached a verdict. See N.C. Gen. Stat. § 15A-1023(b) (entitling a defendant to a continuance until the next session of court upon rejection of the plea arrangement by the judge, which suggests that the statute is directed at pretrial plea bargains). No statute or rule requires a trial court to consider a plea bargain which comes to the court's attention practically simultaneously with an indication from the jury that it has reached a verdict.
    In the absence of controlling statutory provisions or established rules, the trial judges of this state are vested with broad discretionary authority to oversee and administer the trials which come before them. See State v. Rhodes, 290 N.C. 16, 23, 224 S.E.2d 631, 635 (1976). Thus, rulings on “matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court[]” are often subject to this discretion. Id. Accordingly, a trial court has the discretion to refuse to entertain a plea arrangement which is presented to the court at approximately the same time as the announcement that the jury has arrived at a verdict.
    As a general rule, a trial court's decision not to entertain such a plea bargain does not violate a defendant's constitutional rights. Where judicial approval is required to effectuate a plea arrangement, an unapproved arrangement is ineffectual and generallyconfers no rights upon a defendant. See Mabry v. Johnson, 467 U.S. 504, 507, 81 L. Ed. 2d 437, 442 (1984) (“A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.”); State v. Collins, 300 N.C. 142, 149-50, 265 S.E.2d 172, 176-77 (1980) (“[L]ack of judicial approval when required by statute renders the proposed plea bargain agreement null and void. . . . [T]he prosecutor had no authority to bind the State to the dispensation of a particular sentence in defendant's case until the trial judge had approved of the proposed sentence.”).
    Given the facts and circumstances of the instant case, we discern neither an abuse of discretion, nor constitutional infirmity, in the trial court's decision to accept the jury's verdict rather than formally accepting or rejecting defendant's proffered plea bargain. The Motion for Appropriate Relief is denied.
    No error in defendant's trial; the Motion for Appropriate Relief is denied.
    Judge ELMORE concurs.
    Judge LEVINSON concurs with separate opinion.
    Report per Rule 30(e).
NO. COA05-290


Filed: 7 February 2006


v .                         Rowan County
                            No. 03 CRS 050259

    LEVINSON, Judge concurring.

    I concur in Sections I and II of the majority opinion. In addition, I concur in the portion of Section III that holds that the contentions set forth in the motion for appropriate relief (MAR) should not be heard by this Court by means of this MAR. I make no comment concerning the balance of Section III because it is unnecessary to do so to resolve the issue.

Footnote: 1
     Indeed, two of the assignments of error which defendant has not brought forward in his brief reference defendant's willingness to plead guilty to common law robbery.

*** Converted from WordPerfect ***