An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-656

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

STATE OF NORTH CAROLINA

v .                         Orange County
                            Nos. 03 CRS 54518, 54520-21
CHRISTOPHER TODD HARRIS                04 CRS 2039-54

    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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