Appeal by defendant from a judgment dated 10 January 2005 by
Judge Wade Barber, Jr. in Orange County Superior Court. Heard in
the Court of Appeals 11 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth F. Parsons, for the State.
Anne Bleyman for the defendant.
BRYANT, Judge.
Christopher Todd Harris (defendant) appeals from a judgment
dated 10 January 2005 sentencing him to 23 to 37 months
imprisonment following his guilty plea to charges of second-degree
kidnapping, breaking and entering, assault by pointing a gun,
communicating threats and violating a domestic violence protective
order.
On 1 March 2004, defendant pled guilty and was sentenced in
District Court to sixteen counts of violating a domestic violence
protective order and two counts of communicating a threat.
Defendant appealed that judgment to superior court. On 7 June
2004, defendant entered a guilty plea pursuant to a written plea
agreement as follows: Defendant will plead guilty to 1 count of 2nd
degree kidnapping, 1 count of felony breaking
and entering, 1 count of assault by pointing a
gun, 3 counts of communicating a threat, [and]
16 counts of violating a 50B order. The
charges will be consolidated for judgment.
Defendant will receive a suspended sentence
for a Class E, Level II felony. As an
intermediate punishment he will serve a 6
month active sentence, then be placed on
regular probation. The State will not object
to continuing sentencing until the August
administrative session. In 2 weeks defendant
will be placed on EHA [electronic house
arrest] until he returns to be sentenced.
Pursuant to the plea agreement the trial court accepted the plea
and continued prayer for judgment until 17 August 2004.
On 10 June 2004, the trial court was informed defendant could
not be supervised under electronic house arrest. Therefore, the
trial court, with permission of defense counsel who waived
defendant's presence in court, entered judgment on one of
defendant's misdemeanor charges. Defendant was sentenced to
twenty-five days in the N.C. Department of Corrections, which
sentence was suspended and defendant was placed on supervised
probation for three months. As a condition of probation, defendant
was to be placed on electronic house arrest.
Defendant did not report to set up probation and did not
appear in Superior Court in August 2004 for sentencing. Defendant
was arrested on 27 September 2004 for failure to appear and
sentenced on 10 January 2005. The court consolidated the remaining
charges for judgment and ordered defendant to serve 23 to 37 months
active imprisonment. Prior to sentencing, defendant requested acontinuance of the sentencing hearing, then requested to withdraw
his guilty plea, which request was denied. Defendant appeals.
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We will treat defendant's appeal as a petition for writ of
certiorari, allow the petition and hear the appeal.
See, e.g.,
State v. Taylor, 308 N.C. 185, 186, 301 S.E.2d 358, 359 (1983)
(“Defendant has no appeal of right since he entered pleas of guilty
. . . pursuant to a plea bargain. His purported appeal is therefore
subject to dismissal. However, in order to put this matter to rest,
we elect to treat his attempt to appeal as a petition for writ of
certiorari and grant that petition.”).
On appeal defendant raises the following issues: whether the
trial court erred in (I) failing to inform defendant he could
withdraw his guilty plea prior to sentencing defendant outside the
terms of the plea agreement; and (II) denying defendant's motion to
withdraw his guilty plea when such motion was made prior to
sentencing. The State acknowledges in its brief that it cannot
distinguish the cases and the statute cited by defendant.
If at the time of sentencing, the judge for
any reason determines to impose a sentence
other than provided for in a plea arrangement
between the parties, the judge must inform the
defendant of that fact and inform the
defendant that he may withdraw his plea. Upon
withdrawal, the defendant is entitled to a
continuance until the next session of court.
N.C. Gen. Stat. § 15A-1024 (2005);
see also State v. Williams, 291
N.C. 442, 446-47, 230 S.E.2d 515, 517-18 (1976) (“The equally
unambiguous language of 15A-1024 discloses that this statute
applies in cases in which the trial judge does not reject a pleaagreement when it is presented to him but hears the evidence and at
the time for sentencing determines that a sentence different from
that provided for in the plea agreement must be imposed.
Under the
express provisions of this statute a defendant is entitled to
withdraw his plea and as a matter of right have his case continued
until the next term.”) (emphasis in original);
State v. Rhodes, 163
N.C. App. 191, 195, 592 S.E.2d 731, 733 (2004).
The plea agreement entered into by defendant and as stated by
the trial court on 7 June 2004:
[U]pon your plea of guilty to [the crimes]
these charges will be consolidated for
judgment. You will receive a suspended
sentence for a Class E Level II felony. As an
intermediate punishment you will serve six
months active sentence then be placed on
probation. The State will not object to
continuing sentencing until the August
administrative session; but beginning two
weeks from now, you will be placed on
electronic house arrest until you report back
to be sentenced. Do you understand that?
Defendant responded that he understood and consented to the plea
agreement as stated by the trial court. At the conclusion of the
hearing, and after the plea agreement had been accepted and ordered
recorded by the trial court, the trial court told defendant that if
he failed to appear in August 2004, his pleas “will stand, but the
plea agreement will go away.” Thereafter, on 10 June 2004, outside
the presence of defendant, the trial court entered a judgment as to
one of the charges, sentencing defendant to twenty-five days
imprisonment, suspending that judgment and placing defendant on
supervised probation for three months. Then, on 19 January 2005,
when defendant next appeared in court, defendant was sentenced toan active prison term of 23 to 37 months with no probation - a
sentence which was outside the plea agreement, and outside the
plain language of N.C.G.S. § 15A-1024.
The record reveals that the trial court, upon imposing a
sentence other than the one agreed to in the plea agreement, did
not inform defendant that he could withdraw his plea and have a
continuance until the next court calendar as clearly provided for
under N.C.G.S. § 15A-1024.
See State v. Wall, 167 N.C. App. 312,
317, 605 S.E.2d 205, 209 (2004);
see also State v. Handy, 326 N.C.
532, 539, 391 S.E.2d 159, 163 (1990) (defendant's right to withdraw
a pre-sentence guilty plea is based upon whether it would be fair
and just to allow the motion to withdraw after conducting an
independent review of the record and considering the reasons given
by the defendant and any prejudice to the State). Because the
trial judge failed to follow the procedure mandated in N.C.G.S. §
15A-1024, we vacate defendant's sentence and remand the matter to
the trial court with instructions to allow defendant's withdrawal
of his guilty plea pursuant to N.C.G.S. § 15A-1024.
Vacated and remanded.
Judges CALABRIA and SMITH concur.
Report per Rule 30(e).
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