Appeal by defendant from judgment entered 28 January 2005 by
Judge Ripley E. Rand in Wake County Superior Court. Heard in the
Court of Appeals 11 October 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Belinda A. Smith, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Lenwood Lee Paige (defendant) appeals from a guilty plea to
two counts of statutory rape and one count of indecent liberties
with a minor. For the reasons stated herein, we affirm the
judgment of the trial court.
Defendant was indicted for two counts of statutory rape and
one count of indecent liberties with a child on 24 June 2003.
Defendant was appointed counsel and his trial began on 12 October
2004. At trial, the State's evidence tended to show that
defendant, age twenty-three at the time of the offense, entered the
bedroom of a fourteen-year-old female acquaintance on the night of
11 May 2003 and engaged in sexual intercourse with her. Defendantleft, then returned through the window a few minutes later, and
after telling the victim he had a gun, engaged in intercourse with
her a second time.
Prior to trial, defendant requested new counsel. A hearing
was held on 11 October 2004. The trial court found that
defendant's appointed counsel was competent and refused the
request, informing defendant he could represent himself if he
chose. The trial court questioned defendant regarding his
understanding of events and whether he was under the influence of
drugs or alcohol. Defendant informed the trial court that he was
on two prescription medications, Gabitril and Remeron, for
[s]leep, anxiety, [and] depression. The trial court inquired as
to whether the medications made it difficult for defendant to
understand what was going on and what he was doing. Defendant
stated that the medications affected vision and stuff like that a
little bit[,] and that he didn't really feel as though he was
functioning in a right mind to talk about these issues. After
further questioning regarding the length of time defendant had been
taking the medications and their effects, the trial court confirmed
that defendant understood and had no questions about what we're
doing here, who we are, [and] what we're talking about[,] and
understood the consequences of representing himself in the matter.
Defendant elected to represent himself, and the trial court found
that defendant has answered all my questions, and that he
knowingly and intelligently, voluntarily and as his informed choice
had waived any right to a lawyer. On the following morning of 12 October 2004, prior to the
start of the trial, defendant withdrew his waiver of counsel and
informed the trial court that he wanted his previously appointed
counsel to represent him at trial. The request was granted.
On the third day of trial, prior to the close of the State's
evidence, defendant withdrew his plea of not guilty and entered a
plea of guilty pursuant to a plea bargain. The trial court
discussed this change with defendant, and asked if he was under the
influence of alcohol, drugs, narcotics, or medication. Defendant
informed the trial court that he had taken one dose each of Remeron
and Gabitril for [s]leep, depression and anxiety and just like
mental that morning, and had been taking those medications since
The trial court examined defendant's understanding of the
situation and the plea in a lengthy exchange:
THE COURT: Do you feel like you are in
your right mind this morning with respect to
entering this plea of guilty as to these
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand why you are
here and what we're doing?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions
about why you're here and what we're doing?
THE DEFENDANT: No, sir.
THE COURT: Just one more question about
that. Do those medications make it difficult
for you to understand what goes on around you,make your thought process muddy or anything
THE DEFENDANT: Just a little bit.
THE COURT: Okay. Do they make it muddy
or make your thought process cloudy in any way
to such a degree that you feel like it impairs
your judgment where you can't decide how you
want to deal with things?
THE DEFENDANT: In between, I can't
really -- no, no.
THE COURT: Have you and your lawyer
talked about this plea bargain before you came
in here today?
THE DEFENDANT: Yes, sir.
THE COURT: Do you feel like this plea
bargain is in your best interest and it's what
you want to do?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Do you have any more
questions you want to ask me about that?
THE DEFENDANT: No, sir.
After ascertaining that defendant understood the nature of the
charges, that he was satisfied with the services of his appointed
counsel, and that he understood the ramifications of his guilty
plea, the trial court then asked defendant if he was guilty of the
charges, to which defendant answered, [y]es, sir. When the trial
court asked defendant what he did, defendant replied, I had sex
with [the victim] on May the 27, 2003, against her will twice. I'm
sorry. Defendant agreed that no one had threatened him or coerced
his plea. The trial court found:
Defendant's competent to stand trial; that the
Defendant's medications, [when he had] lasttaken them, while they have had some affect
[sic] on his, shall we say disposition, that
they do not affect the fact that the plea is
the informed choice of the Defendant and was
made freely and voluntarily and knowingly and
Defendant was ordered to be evaluated prior to sentencing as
part of the sexually violent predator registration program under
N.C. Gen. Stat. § 14-208.20. At the sentencing hearing held on 28
January 2005, the trial court denied defendant's pro se motion,
made 15 November 2004, to withdraw his plea, dismiss his counsel,
and appoint a new lawyer, and denied appointed counsel's own motion
to withdraw as counsel. The State had previously stipulated there
were no aggravating factors. Defendant suggested as mitigating
factors defendant's difficult family life, and academic and social
challenges. The trial court found no aggravating or mitigating
factors and consolidated the charges, sentencing defendant within
the presumptive range to 348 to 427 months in prison.
Defendant appeals from this judgment.
Defendant first contends the trial court erred by denying his
motion to withdraw his guilty plea. We disagree.
A defendant is entitled to appellate review as a matter of
right if his motion to withdraw a guilty plea is denied. N.C. Gen.
Stat. § 15A-1444(e) (2005). In reviewing a trial court's denial
of a defendant's motion to withdraw a guilty plea made before
sentencing, 'the appellate court does not apply an abuse of
discretion standard, but instead makes an independent review ofthe record.' State v. Robinson
, ___ N.C. App. ___, ___, 628
S.E.2d 252, 254 (2006) (citations omitted).
In State v. Handy
, 326 N.C. 532, 391 S.E.2d 159 (1990), our
Supreme Court held that a presentence motion to withdraw a plea of
guilty should be allowed for any fair and just reason. Id
539, 391 S.E.2d at 162.
Some of the factors which favor
withdrawal include whether the defendant has
asserted his legal innocence, the strength of
the State's proffer of evidence, the length of
time between entry of the guilty plea and the
desire to change it, and whether the accused
has had competent counsel at all relevant
times. Misunderstanding of the consequences
of a guilty plea, hasty entry, confusion, and
coercion are also factors for consideration.
State v. Meyer
, 330 N.C. 738, 743, 412 S.E.2d 339, 342 (1992)
(citation omitted). After a defendant has come forward with a
'fair and just reason' in support of his motion to withdraw, the
State 'may refute the movant's showing by evidence of concrete
prejudice to its case by reason of the withdrawal of the plea.'
. (citation omitted).
Following a careful consideration of the factors favoring
withdrawal and an independent review of the record in this case, we
conclude that the trial court did not err in denying defendant's
motion to withdraw his guilty plea.
First, defendant never asserted his legal innocence to the
trial court. See State v. Graham
, 122 N.C. App. 635, 637-38, 471
S.E.2d 100, 102 (1996) (upholding the denial of a motion to
withdraw a guilty plea when the defendant made no concreteassertion of innocence, and answered yes to the trial court's
inquiry as to whether the defendant was in fact guilty, among other
considerations). Here, defendant stated to the trial court
regarding his motion to withdraw his guilty plea that due to the
fact of the case of this girl, you know _- you know, something
happened, but I didn't have intercourse with this girl. It's a
fact that she's still a virgin, but I'm _- you know, I don't
understand a lot of this. However, during the plea colloquy,
defendant stated he was in fact guilty, and that he had sex with
the victim twice.
Next, we conclude that the State proffered strong evidence in
support of the charges. See Graham
, 122 N.C. App. at 637-38, 471
S.E.2d at 102 (upholding denial of a motion to withdraw a guilty
plea when the State's evidence against the defendant was strong,
among other considerations). Prior to defendant's entry of a
guilty plea, the State presented testimony by the minor victim, who
positively identified defendant and testified that he engaged in
intercourse with her twice. The State further planned to present
DNA evidence showing that defendant had engaged in sexual activity
with the victim. Such testimonial and physical evidence tended to
prove that defendant committed each of the crimes charged.
Next, we find that approximately a month passed before
defendant moved to withdraw his guilty plea. In Handy
, 326 N.C.
532, 391 S.E.2d 159, our Supreme Court noted that:
A swift change of heart is itself strong
indication that the plea was entered in haste
and confusion; furthermore, withdrawal shortlyafter the event will rarely prejudice the
Government's legitimate interests. By
contrast, if the defendant has long delayed
his withdrawal motion, and has had the full
benefit of competent counsel at all times, the
reasons given to support withdrawal must have
considerably more force.
at 539, 391 S.E.2d at 163 (citation omitted). Defendant's
motion to withdraw made several weeks after his entry of the guilty
plea is not indicative of a swift change of heart, and fails to
provide a fair and just reason for withdrawal of defendant's plea.
, 122 N.C. App. at 637-38, 471 S.E.2d at 101-02
(upholding the denial of a motion to withdraw a guilty plea made
nearly five weeks after its entry, among other considerations).
Next, defendant had competent representation throughout the
proceedings. See State v. Ager
, 152 N.C. App. 577, 582-83, 568
S.E.2d 328, 332 (2002) (upholding the denial of a motion to
withdraw a guilty plea when evidence tended to show that the
defendant's counsel was competent, among other considerations).
Although defendant indicated to the trial court prior to the start
of trial that he wished to have other counsel appointed or to
represent himself, and determined to represent himself on the day
prior to trial, defendant asked for appointed counsel to represent
him at trial the following day and indicated to the trial court
that he was satisfied with his counsel at the time of the entry of
the plea agreement. Further, the trial court found on multiple
occasions that defendant's appointed counsel was competent despite
their disagreements. The record supports the trial court'sfindings that defendant had competent counsel at all relevant
Finally, defendant contends that his confusion due to
medications he was taking at the time of trial provide a fair and
just reason for the withdrawal of the plea. The trial court's
acceptance of a defendant's guilty plea will not be disturbed on
appeal [w]here it appears that the trial judge made careful
inquiry of the accused as to the voluntariness of his pleas, and
there is ample evidence to support the judge's finding that
defendant freely, understandingly and voluntarily pleaded guilty to
the charges[.] State v. Ellis
, 13 N.C. App. 163, 165, 185 S.E.2d
40, 42 (1971) (affirming trial court's acceptance of guilty plea
from defendant taking a tranquilizer at time of plea colloquy).
Here, the trial court thoroughly questioned defendant about
his ability to understand his situation and the guilty plea, and
ultimately determined defendant was able to knowingly and
voluntarily plead guilty. Defendant's statements during the plea
colloquy sufficiently demonstrated his comprehension of the
setting, his statements, and the consequences of the plea, and the
trial court properly accepted defendant's plea of guilt.
As defendant had failed to establish a fair and just reason
for withdrawal of his guilty plea, we conclude, after an
independent review of the record, that the trial court did not err
in denying defendant's motion to withdraw his guilty plea. See
, 152 N.C. App. at 585, 568 S.E.2d at 333. The assignment of
error is overruled.
Defendant next contends the trial court erred in its failure
to find mitigating facts at the sentencing hearing. We disagree.
N.C. Gen. Stat. § 15A-1340.16(c) (2005), subtitled, Written
Findings; When Required[,] requires that, [t]he court shall make
findings of the aggravating and mitigating factors present in the
offense only if
, in its discretion, it departs from the presumptive
range of sentences specified in G.S. 15A-1340.17(c)(2). Id
(emphasis added). In State v. Streeter
, 146 N.C. App. 594, 553
S.E.2d 240 (2001), this Court held that when a defendant is
sentenced in the presumptive range, the trial court is not required
to find aggravating or mitigating factors even when evidence is
presented, as 'the decision to depart from the presumptive range
is in the discretion of the court.' Id
. at 598, 553 S.E.2d at 242
(quoting N.C. Gen. Stat. § 15A-1340.16(a)). We are bound by the
decisions of prior panels of this Court. See State v. Jones
358 N.C. 473, 487, 598 S.E.2d 125, 133 (2004) (citation omitted)
(holding that '[w]here a panel of the Court of Appeals has decided
the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been
overturned by a higher court').
Defendant contends, however, that the United States Supreme
Court's holding in the case of Blakely v. Washington,
542 U.S. 296,
159 L. Ed. 2d 403, rehearing denied
, 542 U.S. 961, 159 L. Ed. 2d
851 (2004), requiring that aggravating sentencing factors must be
found by a jury, requires the trial court to make written findingsof mitigating factors if any exist. We find no support for this
contention in Blakely v. Washington
, and note that the United
States Supreme Court addressed only factors which increase, rather
than decrease, the penalty for a crime in their holding. Id
301, 159 L. Ed. 2d at 412.
Our statutes and case law clearly state that written findings
as to mitigating factors are required only if the trial court
departs from the presumptive range. Here, defendant was sentenced
within the presumptive range, and the trial court was therefore not
required to make findings as to mitigating factors. This
assignment of error is overruled.
As defendant's motion to withdraw his guilty plea was properly
denied, and the trial court did not err in its failure to find
mitigating facts at defendant's sentencing, the judgment is
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***