Appeal by defendant from judgment entered 23 August 2006 by
Judge David S. Cayer in Mecklenburg County Superior Court. Heard
in the Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Iain Stauffer, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
Jose Arturo Arias (defendant) pled guilty to trafficking
cocaine on 1 July 2003. As part of the plea agreement, the State
agreed to dismiss a charge of conspiracy to traffic cocaine and to
defer sentencing to allow defendant to render substantial
assistance to the State. The trial court noted the term
substantial assistance meant identification, arrest orconviction of any accomplice, accessories or co-conspirator or
[principals]. The State then agreed to an unsecured bond in the
amount of $25,000. Defendant was not actually released from
custody but was extradited to Maryland on 30 July 2003 to face
pending charges. On 15 September 2003, a Maryland trial court
sentenced defendant to two months imprisonment with a credit for
two months served. Defendant was subsequently released from
custody in Maryland and was deported to Mexico twice in 2004.
On 27 March 2006 defendant was stopped for a traffic incident
in North Carolina and subsequently arrested. On 21 April 2006 he
filed a motion to withdraw the guilty plea he entered in 2003.
Defendant's motion was denied at a hearing held on 23 August 2006.
The trial court sentenced defendant to an active term of seventy to
eighty-four months imprisonment with the North Carolina Department
of Correction. Defendant appeals.
Defendant raises two issues on appeal: (I) whether the trial
court erred in denying his motion because the State failed to
uphold its end of the plea agreement, and (II) whether the trial
court erred in denying his motion on the basis of frustration of
 Defendant first argues the State is bound by the plea
agreement which it breached by failing to release defendant from
custody. Defendant was therefore unable to render substantial
assistance to the State, which was the purpose of the pleaagreement, and he did not receive the benefit of the bargain. In
denying defendant's motion to withdraw his guilty plea, the trial
court found the State did not breach the plea agreement because the
State dismissed the charge it said it would dismiss, it continued
the sentencing to allow defendant to try to provide substantial
assistance, and it agreed to the unsecured bond. The trial court
noted defendant's extradition to Maryland was not something the
State brought about, and therefore could not be the basis for
arguing the State breached the plea agreement.
In examining a decision to grant or deny a motion to withdraw
a guilty plea, an appellate court does not use an abuse of
discretion standard but makes an independent review of the record.
State v. Marshburn
, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718
(1993). Although there is no absolute right to withdraw a guilty
plea, motions to do so will be liberally granted, particularly if
made early in the proceedings. State v. Handy
, 326 N.C. 532, 537,
391 S.E.2d 159, 161-62 (1990). The defendant must present a fair
and just reason. Id.
at 539, 391 S.E.2d at 162. Factors favoring
withdrawal include: (i) whether the defendant has asserted his
innocence, (ii) the strength of the State's evidence, (iii) the
length of time between the guilty plea and the motion to withdraw
it, and (iv) whether defendant has had legal representation at all
relevant times. Id.
at 539, 391 S.E.2d at 163. Other pertinent
factors are misunderstanding of the consequences of a guilty plea,
hasty entry of the plea, confusion, and coercion. Id.
defendant has made a sufficient showing, the State may counter byproviding evidence of concrete prejudice to its case by reason of
the withdrawal of the plea. Id.
Using the factors listed above, defendant did assert his
innocence in his motion to withdraw his guilty plea. However, he
presented the motion three years after the plea was entered, an
extremely lengthy amount of time. Also, defendant does not claim
he was not represented by counsel and the record shows he had
counsel at his plea hearing; nor does defendant claim
misunderstanding, hasty entry, confusion or coercion regarding his
Defendant has also failed to present a fair and just reason
for allowing the withdrawal of his plea. Defendant stated he did
not enter the plea knowingly and voluntarily because he did not
know he was subject to extradition to Maryland. He knew about the
pending charges in Maryland, however, because he waived extradition
six months prior to pleading guilty in this case. Defendant also
argues he did not receive the benefit of the bargain he made with
the State. It appears from the record, however, that the State
fulfilled its promises listed in the transcript of plea. The State
dismissed the charge it said it was going to and deferred
sentencing. Beyond the transcript of plea, the State agreed to an
unsecured bond so defendant could be released. Nowhere in the
transcript of plea or the transcript of the plea hearing did the
State agree to physically release defendant. Although defendant
argues the agreement to defer sentencing was for the express
purpose of allowing defendant out of custody so that he couldrender substantial assistance to the State, his release was not
specifically made a condition of the plea agreement. We also note
that no evidence was presented at the 23 August 2006 hearing that
defendant attempted to render any assistance at all to the State
throughout the three years following his guilty plea, whether he
was in custody or out of custody.
Furthermore, the State presented evidence of concrete
prejudice should the motion be granted, because the evidence in the
case was destroyed over two years after defendant entered his
guilty plea. The evidence destroyed included the cocaine collected
near defendant at the drug bust, as well as a video taken of
defendant's drug transaction. The lengthy delay between
defendant's guilty plea and his motion, the lack of a fair and just
reason, and the prejudice to the State overwhelmingly support the
denial of defendant's motion. Therefore, this assignment of error
 Defendant's second argument regarding frustration of
purpose is likewise untenable. Changed conditions supervening
during the term of a contract sometimes operate as a defense
excusing further performance on the ground that there was an
implied condition in the contract that such a subsequent
development should excuse performance or be a defense . . . .
Brenner v. Little Red Sch. House, Ltd.
, 302 N.C. 207, 211, 274
S.E.2d 206, 209 (1981) (citations and quotation marks omitted).
Defendant argues the implied condition in the plea agreement wasthat defendant would be released from custody, in order for him to
attempt to render substantial assistance to the State. However,
the terms of the plea agreement were explicit, stating that
sentencing would be deferred to a later date, not that the State
must release defendant. The State's share of the bargain was to
dismiss a charge, defer sentencing, and unsecure defendant's bond.
The State upheld its end of the bargain. Moreover, frustration of
purpose may not be invoked as a defense where the frustrating event
was reasonably foreseeable. Id.
Here, defendant waived his
extradition to Maryland well in advance of his guilty plea in the
instant case and therefore he was aware of the likelihood of being
extradited to Maryland. Thus, he may not rely on frustration of
purpose for challenging the trial court's decision to deny his
motion to withdraw guilty plea. Accordingly, we find the trial
court did not err in denying defendant's motion.
Judges WYNN and ELMORE concur.
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