STATE OF NORTH CAROLINA
v. Gaston County
Nos. 02 CRS 675
DOUGLAS LEE CLONINGER 02 CRS 2942
No brief for the State.
Haakon Thorsen for defendant-appellant.
McGEE, Judge.
Douglas Lee Cloninger (defendant) appeals from a 3 December
2004 judgment entered in his conviction for involuntary
manslaughter and from his guilty plea to being an habitual felon.
Defendant was charged with second degree murder. By a
separate bill of indictment, defendant was charged with having
attained the status of habitual felon based upon three underlying
felony convictions. After a jury found defendant guilty of
involuntary manslaughter, defendant stipulated to the prior
convictions alleged in the habitual felon indictment. The trial
court sentenced defendant as a Class C felon to 154 to 194 months
in prison.
Defendant's sole argument on appeal is that the trial courterred in accepting defendant's habitual felon status plea because
the trial court failed to make an adequate record of defendant's
plea to habitual felon. At the outset, we note the State has filed
a motion to dismiss the appeal, arguing that defendant's entry of
a guilty plea precludes defendant's right to raise the issue
presented in his appeal under N.C. Gen. Stat. § 15A-1444(e) (2005).
By pleading guilty, defendant's right of direct appeal is confined
to the following issues:
(1) whether the sentence is supported by the
evidence (if the minimum term of imprisonment
does not fall within the presumptive range);
(2) whether the sentence results from an
incorrect finding of the defendant's prior
record level under N.C. Gen. Stat. §
15A-1340.14 . . .; (3) whether the sentence
constitutes a type of sentence not authorized
by N.C. Gen. Stat. § 15A-1340.17 . . . for the
defendant's class of offense and prior record
or conviction level; (4) whether the trial
court improperly denied the defendant's motion
to suppress; and (5) whether the trial court
improperly denied the defendant's motion to
withdraw his guilty plea.
State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004)
(citing State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d
545, 546-47 (2003)); see also State v. Young, 120 N.C. App. 456,
459, 462 S.E.2d 683, 685 (1995) (holding that where the defendant
pleaded guilty to being an habitual felon and did not move in the
trial court to withdraw his guilty plea, the defendant was not
entitled to an appeal of right from the trial court's ruling).
Because defendant's assignment of error does not concern an
issue within this limited appeal of right, it is not properly
before this Court for review. See State v. Absher, 329 N.C. 264,265, 404 S.E.2d 848, 849 (1991). Defendant, however, filed a
petition for certiorari to review his assignment of error based on
our Court's ruling in Carter. We held in Carter that the defendant
was entitled to petition for a writ of certiorari during the
pendency of his appeal to review his assignment of error pertaining
to the voluntariness of his guilty plea under N.C. Gen. Stat. §
15A-1022. Carter, 167 N.C. App. at 584-85, 605 S.E.2d 678. In the
case before us, defendant is challenging the voluntariness of his
guilty plea and, therefore, based on our decision in Carter,
defendant is entitled to a writ of certiorari to review his
assignment of error.
In order for a defendant to be convicted as an habitual felon,
the issue must be submitted to a jury and the jury must find the
defendant guilty, or in the alternative, the defendant must enter
a plea of guilty. State v. Gilmore, 142 N.C. App. 465, 471, 542
S.E.2d 694, 698-99 (2001); see N.C. Gen. Stat. § 14-7.5 (2005).
Our Court has held that before accepting a defendant's guilty plea
as an habitual felon, a trial court must meet the requirements
outlined in N.C. Gen. Stat. § 15A-1022(a). State v. Bailey, 157
N.C. App. 80, 88-89, 577 S.E.2d 683, 689 (2003).
N.C. Gen. Stat. § 15A-1022(a)(1)-(4) (2005) provides:
(a) Except in the case of corporations or in
misdemeanor cases in which there is a waiver
of appearance under G.S. 15A-1011(a)(3), a
superior court judge may not accept a plea of
guilty or no contest from the defendant
without first addressing him personally and:
(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[.]
In Gilmore, our Court held that a defendant's stipulation to
habitual felon status, "in the absence of an inquiry by the trial
court to establish a record of a guilty plea, is not tantamount to
a guilty plea." Gilmore, 142 N.C. App. at 471, 542 S.E.2d at 699.
We noted that by failing to address the defendant personally and by
failing to conduct an inquiry as required by N.C.G.S. §
15A-1022(a), the trial court failed to establish a record of a
guilty plea and, therefore, reversed and remanded the habitual
felon conviction. Id. at 471-72, 542 S.E.2d at 699. However, in
State v. Williams, 133 N.C. App. 326, 515 S.E.2d 80 (1999), our
Court declined "to apply a technical, ritualistic approach" in
accepting the defendant's guilty plea by holding that the trial
court's failure to inform the defendant of the minimum and maximum
sentence for a Class C offender did not invalidate the guilty plea.
Id. at 330-31, 515 S.E.2d at 83. In Williams, the defendant
indicated she understood that as a consequence of being an habitual
felon she would be sentenced as a Class C felon as opposed to a
Class G felon. Id. at 331, 515 S.E.2d at 83. The defendant
further stated she had committed each of the felonies listed on the
habitual felon indictment and admitted she was proceeding
voluntarily and without the inducement of deals or threats. OurCourt upheld the trial court's determination that the defendant was
aware of the direct consequences of her plea, and that such plea
was knowing and voluntary. Id.
In the present case, the following colloquy occurred after the
State introduced certified copies of the three underlying felonies
alleged in the habitual felon:
THE COURT: All right. Mr. Forbes, does your
client admit to these - to the accuracy of
these three previous convictions?
MR. FORBES [Counsel for defendant]: He does,
Your Honor.
THE COURT: All right.
MR. FORBES: We have examined them and he
admits that those are his convictions.
THE COURT: Mr. Cloninger, you agree to that,
is that correct?
THE DEFENDANT: Yes.
THE COURT: All right, sir. Mr. Cloninger, do
you understand that if you wish you have the
right to deny this status or to plead not
guilty as it were and have this same jury or
another jury - we would probably be using this
jury since I still have them available to pass
on this issue. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: That you are agreeing that these
three convictions are yours and you're
agreeing that I go ahead [and] pass on these
at this time, is that correct?
THE DEFENDANT: Yes.
THE COURT: All right. You may have a seat for
just a moment. Thank you, sir. All right. I'm
going to find for the record and pursuant to
State [v.] Gilmore that following the jury's
conviction of the defendant of the offense of
involuntary manslaughter the defendant and hisattorney, Mr. Robert Forbes, had an
opportunity to review the three prior
convictions that the [S]tate would seek to
introduce in a habitual felon hearing. That
Mr. Forbes has stated that he - that neither
he nor his client desire a jury to pass on
this issue and that the [S]tate has certified
true copies of the three prior convictions.
Those convictions do belong to the defendant
and do satisfy the status of habitual felon.
That the defendant stipulates to the three
prior convictions and enters a plea of guilty
to that status. Would that be correct, Mr.
Forbes?
MR. FORBES: That is correct, Your Honor.
THE COURT: Would that be correct, Mr.
Cloninger?
THE DEFENDANT: Yes.
THE COURT: All right. That being the case then
I find that the defendant is satisfied with
his lawyer and I'm going to find that there is
a factual basis for the entry of the plea.
That the defendant is satisfied with his
lawyer. That he is competent to stand trial
and that his plea is the informed choice of
the defendant and made freely, voluntarily and
understandingly. . . .
. . .
THE COURT: . . . I'm going to find beyond a
reasonable doubt that the three convictions
establish the defendant as a habitual felon.
Does the State wish to be heard prior to
sentencing?
Here, the inquiry by the trial court failed to satisfy the
requirements of N.C. Gen. Stat. § 15A-1022(a). The trial court did
not determine that defendant understood the nature of the habitual
felon charge. Unlike Williams, the trial court in this case did
not inform defendant that upon his plea he would be sentenced as a
Class C felon, the enhanced punishment he faced upon his plea. Although the trial court made findings of fact in accordance with
a transcript of plea, it does not appear that the trial court went
through the transcript of plea with defendant, and the record on
appeal does not contain a plea transcript of defendant's guilty
plea. See Bailey, 157 N.C. App. at 89, 577 S.E.2d at 689 (holding
that the trial court's informal response of "okay" after going
through a transcript of plea with the defendant did not render the
defendant's plea invalid because the "necessary inquiries needed to
establish a record of [the] defendant's guilty plea were asked by
the trial court"). Like Gilmore, the trial court in the present
case failed to establish a record that defendant's stipulation was
a guilty plea. Accordingly, defendant's conviction of being an
habitual felon is reversed and the case remanded for a new habitual
felon hearing.
No error as to defendant's conviction of involuntary
manslaughter.
Reversed and remanded for a new habitual felon hearing.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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