An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1039


Filed: 16 May 2006


         v.                        Gaston County
                                Nos. 02 CRS 675
DOUGLAS LEE CLONINGER                    02 CRS 2942

    Appeal by defendant from judgment entered 3 December 2004 by Judge Timothy L. Patti in Superior Court, Gaston County. Heard in the Court of Appeals 24 April 2006.

    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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