Appeal by defendant from judgments entered 18 January 2005 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 11 October 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Robert C. Montgomery, for the State.
Michael J. Reece for defendant-appellant.
Sandra T. Canty (defendant) appeals from a guilty plea to
six counts of embezzlement and one count of obtaining property by
false pretenses entered 18 January 2005. For the reasons stated
herein, we reverse the judgments as to the six counts of
Defendant was an accounts payable clerk employed by County
Electric, an electrical equipment wholesaler. Defendant was in
charge of an account with one of County Electric's largest
suppliers, Cutler and Hammer (Cutler). Cutler provided rebates
for purchases, which County Electric then applied to its bills with
Cutler. In 2003, an investigation revealed that certain of Cutler's
rebates were being applied twice by defendant. Defendant kept two
sets of books. One set of books showed that a check had been used
to pay a creditor, and the other showed that the same checks had
been applied as credit to Cutler's account. County Electric's
policies required two signatures for the rebate checks to be
cashed. Defendant obtained her direct supervisor's signature and
then forged the second signature in order to deposit seven checks
totaling $593,000.00 into a bank account at Lexington State Bank in
the name of Sandra Canty, d/b/a Cutler and Hammer, C and H
Defendant was charged with six counts of embezzlement, one
count of obtaining property by false pretenses, and habitual felon
status. Defendant pled guilty to all of the charges. Pursuant to
her plea agreement, defendant was sentenced to one active sentence
of 93 to 121 months for five counts of embezzlement as an habitual
felon, a consecutive active sentence of seventy to ninety-three
months for obtaining property by false pretenses as an habitual
felon, and one suspended sentence for embezzlement. Defendant
appeals from the judgments for the six counts of embezzlement, but
does not appeal from the judgment and conviction for obtaining
property by false pretenses.
The State moved to dismiss defendant's appeal on the grounds
that neither N.C. Gen. Stat. § 15A-1444 (2005), nor N.C. Gen. Stat.
§ 15A-979 (2005), provide a statutory basis for defendant's appeal. We agree, but have granted defendant's petition for writ of
Defendant contends that the trial court erred in accepting her
guilty plea as there was no proper factual basis, but does not
allege the trial court erred in sentencing or in denying a motion
to suppress. Defendant's appeal is therefore not permitted by
statute. See State v. Bolinger
, 320 N.C. 596, 601, 359 S.E.2d 459,
462 (1987) (a defendant is not entitled as a matter of right to
appellate review of his contention that the trial court improperly
accepted his guilty plea).
Defendant petitioned this Court in the alternative for a writ
of certiorari for review of the procedural flaws under N.C. Gen.
Stat. § 15A-1444(e) in acceptance of her guilty plea to the crime
of embezzlement. We have granted defendant's petition to review
this assignment of error. See State v. Poore
, 172 N.C. App. 839,
841, 616 S.E.2d 639, 640 (2005) (treating the defendant's appeal as
to an insufficient factual basis for a guilty plea as a petition
for a writ of certiorari); State v. Rhodes
, 163 N.C. App. 191, 193-
94, 592 S.E.2d 731, 732-33 (2004).
Defendant contends the trial court erred in finding a factual
basis for her guilty plea to six counts of embezzlement, as
defendant never had lawful possession of the funds. We agree.
N.C. Gen. Stat. § 15A-1022(c) (2005) states that:
(c) The judge may not accept a plea of
guilty or no contest without first determining
that there is a factual basis for the plea. This determination may be based upon
information including but not limited to:
(1) A statement of the facts by the
(2) A written statement of the
(3) An examination of the presentence
(4) Sworn testimony, which may include
(5) A statement of facts by the defense
. 'It is a rule of universal observance in the administration
of criminal law that a defendant must be convicted, if convicted at
all, of the particular offense charged in the bill of indictment.
The allegation and proof must correspond.' State v. Watson
N.C. 526, 527, 158 S.E.2d 334, 335 (1968) (citation omitted).
Therefore, the factual basis for a guilty plea must correspond with
the particular offense to which a defendant pleads guilty.
To convict a defendant of embezzlement
four distinct propositions of fact must be
established: (1) that the defendant was the
agent of the prosecutor, and (2) by the terms
of his employment had received property of his
principal; (3) that he received it in the
course of his employment; and (4) knowing it
was not his own, converted it to his own use.
State v. Palmer
, ___ N.C. App. ___, ___, 622 S.E.2d 676, 679 (2005)
(citations omitted). Our Supreme Court recently reaffirmed the
distinction between larceny and embezzlement.
While there is similarity in some
respects between larceny and embezzlement,
they are distinct offenses. Larceny is a
common law offense not defined by statute;while embezzlement is a criminal offense
created by statute to cover fraudulent acts
which did not contain all the elements of
Generally speaking, to constitute larceny
there must be a wrongful taking and carrying
away of the personal property of another
without his consent, and this must be done
with felonious intent . . . . The
embezzlement statute makes criminal the
fraudulent conversion of personal property by
one occupying some position of trust or some
fiduciary relationship as specified in the
. The person accused must have been
entrusted with and received into his
the personal property of
another, and thereafter with felonious intent
must have fraudulently converted the property
to his own use.
State v. Weaver
, 359 N.C. 246, 255, 607 S.E.2d 599, 604 (2005)
(emphasis added and emphasis in original) (citation omitted). In
, the Supreme Court concluded that when the defendant's wife,
whom he was charged with aiding and abetting, had no independent
authority to write or sign checks, her possession of the property
was neither lawful nor under her care and control as required by
N.C. Gen. Stat. § 14-90 for the crime of embezzlement. Id
. at 256,
607 S.E.2d at 605; see also Palmer
, ___ N.C. App. at ___, 622
S.E.2d at 680 (holding that access to incoming checks, when the
defendant did not have lawful possession nor was entrusted as a
fiduciary, was insufficient to sustain a conviction for
Here, the State concedes that the factual basis for
defendant's conviction shows that she had no independent authority
over the checks, as she forged a supervisor's signature in order toobtain control of them, and therefore was not in lawful possession
of the property. As clarified in Weaver
, a conviction for
embezzlement cannot be sustained when a defendant does not have
lawful possession. Id
. at 256, 607 S.E.2d at 605. As defendant
did not lawfully possess the checks, the proof cannot correspond to
the crime with which defendant was charged, embezzlement. See
, 272 N.C. at 527, 158 S.E.2d at 335. The trial court erred
in accepting defendant's plea of guilty, and the judgment must be
(See footnote 1)
State v. Weathers
, 339 N.C. 441, 453, 451 S.E.2d 266,
272 (1994) (holding that [a] judge may not accept a defendant's
guilty plea without first determining that there is a factual basis
for the plea).
As an insufficient factual basis was given in support of
defendant's guilty plea to embezzlement, defendant's judgments in
04CRS024303 and 04CRS068556 are reversed.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).