Appeal by defendant from a judgment entered 12 October 2005 by
Judge William C. Griffin, Jr. in Beaufort County Superior Court.
Heard in the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Anne Bleyman for defendant-appellant.
BRYANT, Judge.
On 12 October 2005, Archie Maurice Smith (defendant) pled no
contest to malicious conduct by a prisoner and possession of drug
paraphernalia. On the same date, Judge William C. Griffin, Jr.
accepted defendant's plea and sentenced him to a mitigated sentence
of twelve to fifteen months imprisonment. Defendant appeals from
a judgment entered 12 October 2005.
On 26 May 2006, defendant filed a petition for writ of
certiorari with this Court in the alternative to his appeal in the
event this Court determined he was not entitled to an appeal as of
right. For the reasons set out below, we allow the petition for
writ of certiorari and find no prejudicial error.
We must first address the State's contention that defendant isnot entitled to appellate review in this case. “In North Carolina,
a defendant's right to appeal in a criminal proceeding is purely a
creation of state statute.” State v. Pimental, 153 N.C. App. 69,
72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573
S.E.2d 163 (2002). Our Supreme Court has held that because a
defendant's challenge to the procedures followed in accepting a
guilty plea does not fall within any of the grounds giving rise to
an appeal as of right under N.C. Gen. Stat. § 15A-1444, 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.” State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d
459, 462 (1987). Thus, defendant is not entitled to appeal from
his guilty plea as a matter of right.
While we cannot hear defendant's direct appeal, we have the
discretion to consider the matter by granting a writ of certiorari.
The State contends this Court, under Rule 21 of the Rules of
Appellate Procedure, does not have authority to review defendant's
arguments pursuant to a grant of certiorari. See Pimental, 153
N.C. App. at 77, 568 S.E.2d at 872 (when a defendant has not failed
to take timely action, is not attempting to appeal from an
interlocutory order, and is not seeking review of a denial of a
motion for appropriate relief, “this Court does not have the
authority to issue a writ of certiorari”). This Court, however,
held in State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731,
732 (2004), following Bolinger, 320 N.C. at 601, 359 S.E.2d at 462,
that a defendant may during the appeal period petition for writ ofcertiorari when he is challenging the procedures employed in
accepting a guilty plea. Defendant is, therefore, entitled to
petition for writ of certiorari for review of this assignment of
error. In our discretion, we allow defendant's petition for writ
of certiorari.
_________________________
On appeal, defendant contends the trial court's failure to
specifically inform him of the maximum possible sentence and the
mandatory minimum sentence, as required by N.C. Gen. Stat. § 15A-
1022(a)(6), constitutes grounds for invalidating his no contest
plea. We disagree.
The acceptance of guilty pleas in the superior courts of North
Carolina is governed by N.C. Gen. Stat. § 15A-1022. This statute
specifies seven areas of information and inquiry that the trial
court must review with the defendant prior to accepting a guilty
plea:
(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;
(5) Determining that the defendant, if
represented by counsel, is satisfied with his
representation;
(6)
Informing him of the maximum possible
sentence on the charge for the class ofoffense for which the defendant is being
sentenced, including that possible from
consecutive sentences, and of the mandatory
minimum sentence, if any, on the charge; and
(7) Informing him that if he is not a citizen
of the United States of America, a plea of
guilty or no contest may result in
deportation, the exclusion from admission to
this country, or the denial of naturalization
under federal law.
N.C. Gen. Stat. § 15A-1022(a) (2005) (emphasis added).
Here, defendant contends the trial court failed to comply with
this statute because the trial court did not specifically inform
him of the maximum possible sentence and the mandatory minimum
sentence before accepting his guilty plea. At the hearing
conducted pursuant to defendant's plea, the following colloquy
occurred between the trial court and defendant:
THE COURT: Mr. Smith, are you able to hear and
understand me?
THE DEFENDANT: Yes.
THE COURT: Do you understand you have the
right to remain silent, and if you make any
statement it could be used against you?
THE DEFENDANT: Yes
THE COURT: You have a BA; is that correct?
THE DEFENDANT: Yes
THE COURT: A college degree?
THE DEFENDANT: Yes.
THE COURT: Today are you under the influence
of any alcohol, drugs, narcotics, medicines,
pills, or any intoxicants?
THE DEFENDANT: No.
THE COURT: And has Mr. Lilly explained these
charges to you?
Do you understand the charges, the nature
of the charges, and the elements of the
charges?
THE DEFENDANT: Yes, sir
THE COURT: Have you and Mr. Lilly had a chance
to discuss these cases fully, and are you
satisfied with his legal services?
THE DEFENDANT: Yes, sir
THE COURT: And you understand, of course, you
don't have to enter a plea of guilty. You can
enter a plea of not guilty. Regardless of the
nature of the plea -- that - - as a
consequence confront the witnesses,
cross-examine them in a trial by jury, and
when you plead guilty, even under an Alford
Plea, you give up those and other rights
related to a trial by jury; do you understand
that?
THE DEFENDANT: Yes, sir
THE COURT: And my understanding is you're
pleading guilty without admitting your guilt
--
MR. LILLY: I believe it's no contest, Your
Honor.
THE COURT: Oh, I'm sorry. I thought it was an
Alford Plea.
You're pleading no contest. I'm sorry.
THE DEFENDANT: Yes, sir.
THE COURT: No contest to the charge of
malicious conduct by a prisoner and possession
of drug paraphernalia.
THE DEFENDANT: Yes, sir
THE COURT: And you understand that on a no
contest plea you're going to be treated as
guilty whether or not you admit your guilt?
THE DEFENDANT: Yes, sir.
THE COURT: You don't have any plea bargain
with the State.
Nobody's promised you anything or
threatened you to get you to enter this plea
against your wishes; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: You enter the plea of your own free
will, fully understanding what you're doing?
THE DEFENDANT: Yes, sir.
THE COURT: Have you any questions about what
I've said to you or anything else --
THE DEFENDANT: No, sir.
THE COURT: -- connected with your case up to
this point?
THE DEFENDANT: Pardon me, sir?
THE COURT: Do you have any questions about
what I've said to you or anything else about
your case at this point?
THE DEFENDANT: No, sir.
Because the trial court did not advise defendant of the mandatory
minimum sentence or the maximum possible sentence during this
colloquy, defendant asserts his constitutional rights. Defendant
further argues the trial court's failure to comply with N.C. Gen.
Stat. § 15A-1022(a)(6) rendered his plea ineffective and, thus,
established his plea was not voluntarily, intelligently, and
understandingly made.
For a defendant's plea to be made voluntarily, intelligently
and understandingly, the defendant must be made aware of all
“direct consequences” of his plea.
State v. McNeill, 158 N.C. App.
96, 103, 580 S.E.2d 27, 31 (2003). “Direct consequences” are thosehaving a “'definite, immediate and largely automatic effect on the
range of the defendant's punishment.'”
State v. Williams, 133 N.C.
App. 326, 331, 515 S.E.2d 80, 83 (1999) (citation omitted). “This
definition, however, should not be applied in a technical,
ritualistic manner.”
Id. Further, “[e]ven when a violation
occurs, there must be prejudice before a plea will be set aside.”
McNeill, 158 N.C. App. at 103, 580 S.E.2d at 31. In examining
prejudicial error, courts must “look to the totality of the
circumstances and determine whether non-compliance with the statute
either affected defendant's decision to plead or undermined the
plea's validity.”
State v. Hendricks, 138 N.C. App. 668, 670, 531
S.E.2d 896, 898 (2000). “In this regard, the transcript of plea
signed by defendant, along with what questions the trial court did
ask of him, are particularly relevant.”
Id.
Here, we conclude defendant was not prejudiced as a result of
the trial court's failure to strictly comply with Section 15A-1022.
The transcript of the guilty plea hearing and the signed transcript
of plea shows defendant affirmed that the charges against him were
explained to him by his attorney, he understood the nature of the
charges and every element of each charge, his attorney had
discussed possible defenses to the charges, he was satisfied with
his attorney's legal services, and he understood he was pleading no
contest to the charges against him. Although the trial court did
not personally advise defendant of the mandatory minimum sentence
during its colloquy with him, after the State summarized the
factual basis for the plea and before the trial court sentenceddefendant, the trial court stated the following:
For the nature of the conduct that [defendant
has] entered a plea of guilty to, the Prior
Record Level II sentence, you know, the
minimum would be 15 months which I think is a
little bit steep for spitting on somebody. . .
Accordingly, defendant was made aware of the minimum sentence for
the offense of malicious conduct by a prisoner committed by
someone, like him, having a prior record level of II.
Further, the second page of the transcript of plea, which was
signed by defendant, listed the maximum punishment for malicious
conduct by a prisoner as fifty-nine months and the maximum
punishment for possession of drug paraphernalia as 120 days. This
page also listed the total maximum punishment for both of these
offenses as sixty-three months. This Court has previously held
that the trial court's failure to strictly follow Section 15A-1022
resulted in no prejudice to defendant where a worksheet attached to
the transcript of plea listed the maximum possible punishment for
each offense.
Hendricks, 138 N.C. App. at 670-71, 531 S.E.2d at
899.
Finally, after finding one mitigating factor, the trial court
sentenced defendant to a mitigated prison sentence of twelve to
fifteen months. Accordingly, defendant's maximum prison term is
far less than the maximum possible punishment for the offenses at
issue. Indeed, defendant's
maximum prison term is the same as the
minimum presumptive range term for the offense of malicious conduct
by a prisoner committed by a prior record level II offender.
See
N.C. Gen. Stat. § 15A-1340.17 (2005). We are unpersuaded, considering the totality of circumstances,
that any noncompliance with N.C. Gen. Stat. § 15A-1022 (a)(6)
either affected defendant's decision to plead no contest or
undermined the plea's validity.
Hendricks, 138 N.C. App. at 670,
531 S.E.2d at 898;
see also Williams, 133 N.C. App. at 331, 515
S.E.2d at 83 (holding 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). We conclude the
record indicates evidence sufficient to show that defendant was
aware of the direct consequences of his plea. This assignment of
error
(See footnote 1)
is overruled.
No prejudicial error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1