STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 04 CRS 063895
PAUL ALEXANDER HESTER,
Defendant.
Roy Cooper, Attorney General, by Special Deputy Attorney
General Susan K. Nichols, for the State.
Linda B. Weisel for defendant.
ELMORE, Judge.
On 1 March 2005, Paul Alexander Hester (defendant) was
indicted for robbery with a dangerous weapon, first-degree
kidnapping, and conspiracy to commit robbery with a dangerous
weapon. Pursuant to a plea agreement, defendant entered an Alford
plea to the charges of robbery with a dangerous weapon and second-
degree kidnapping on 2 February 2006. In exchange for his plea,
the State agreed to consolidate for judgment the armed robbery and
kidnapping charges, and to dismiss the conspiracy charge. Under
the agreement, defendant would receive a sentence of forty-six to
sixty-five months in prison. Sentencing was continued until 20 May2006 to allow defendant to attend to some personal matters,
including a civil issue in Wake County.
During the 2 February 2006 hearing, the State summarized its
evidence in support of defendant's plea. The prosecutor offered
the following account of the robbery: Patricia Davis, a clerk at
the Short Stop, a store in Spring Lake, recognized defendant when
he entered the Short Stop with two other black men. She recognized
defendant as a former co-worker and noticed that once defendant
retrieved her key ring, which had a lot of keys on it, he
immediately selected the correct key to the safe. The three men
took Davis' driver's license and $38.00 and warned her not to tell
anybody about what had happened. They moved Davis back and forth
from the back room of the store. Davis later picked defendant out
of a photographic lineup at the police station. The prosecutor
also said that defendant gave a statement implicating himself in
the robbery.
On 17 May 2006, defendant moved to withdraw his Alford plea.
Judge E. Lynn Johnson held a hearing on defendant's motion on 22
May 2006, and issued an order on 9 June 2006 denying that motion.
Judge Johnson, in accordance with the plea agreement, consolidated
defendant's convictions for judgment and sentenced defendant to
forty-six to sixty-five months in prison. Defendant now appeals
from Judge Johnson's denial of defendant's motion to withdraw his
guilty plea and his final judgment.
During the 22 May 2006 hearing to withdraw his Alford plea,
defendant disputed the evidence presented by the State in the 2February 2006 hearing. Defendant admitted that he was present at
the scene of the crime, that he knew the other two individuals
involved in the crime, that he dropped the two men off at the
store, and then picked them up again after the robbery. Defendant
testified that the two men wanted him to come into the store, but
that he refused. He also testified that he refused to tell the men
how to turn off the alarm even after they threatened him with a
gun, but that he did see that they had a gun pointed at Davis.
After defendant was taken into custody, he gave a statement to
Lieutenant T.L. Hassler, who was then an officer in the Spring Lake
Police Department. Defendant claimed that he wrote out a statement
and signed it, but that the statement presented to the court was
not the same statement that he had signed. He did testify
repeatedly that his signature at the bottom of that statement was
genuine.
The statement prepared by Lt. Hassler stated that defendant
had met the two men before the robbery and the three of them had
discussed robbing some stores. Defendant suggested a store that he
used to work at in Spring Lake. When they arrived at the store,
the other two men went in and overpowered Davis, displaying a gun
and forcing her to turn off the store's alarm, which defendant had
advised them to do. One of the men became frustrated with the safe
and waved for defendant to join them in the store. Defendant
yelled that he knew Davis and did not want to come into the store.
Defendant went into the store, and then left on foot. The othermen picked up defendant in the car and gave him $200.00 of the
$1,000.00 that they had stolen from the store.
Defendant first argues that he should have been allowed to
withdraw his Alford plea because the evidence established a “fair
and just reason” for his withdrawal. We disagree.
An Alford plea indicates that defendant plead “guilty because
he perceived it to be in his best interest but [without] admitting
guilt.” State v. Wall, 167 N.C. App. 312, 313, 605 S.E.2d 205, 206
(2004); see North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162
(1970). “[A]n 'Alford [sic] plea' constitutes a guilty plea in the
same way that a plea of nolo contendere or no contest is a guilty
plea.” State v. Alston, 139 N.C. App. 787, 792, 534 S.E.2d 666,
669 (2000) (citation and quotations omitted).
“Although there is no absolute right to withdraw a plea of
guilty, a criminal defendant seeking to withdraw such a plea, prior
to sentencing, is 'generally accorded that right if he can show any
fair and just reason.'” State v. Marshburn, 109 N.C. App. 105,
107-08, 425 S.E.2d 715, 717 (1993) (quoting State v. Handy, 326
N.C. 532, 536, 391 S.E.2d 159, 161 (1990)) (internal quotations
omitted).
When reviewing the denial of a pre-sentence motion to
withdraw a guilty plea, this Court conducts an “independent review
of the record.” Id. at 108, 425 S.E.2d at 718 (quoting Handy, 326
N.C. at 539, 391 S.E.2d at 163).
The defendant has the burden of showing that
his motion to withdraw is supported by some
“fair and just reason.” Whether the reason is
“fair and just” requires a consideration of a
variety of factors. Factors which support a
determination that the reason is “fair andjust” include: the defendant's assertion of
legal innocence; the weakness of the State's
case; a short length of time between the entry
of the guilty plea and the motion to withdraw;
that the defendant did not have competent
counsel at all times; that the defendant did
not understand the consequences of the guilty
plea; and that the plea was entered in haste,
under coercion or at a time when the defendant
was confused. If the defendant meets his
burden, the court must then consider any
substantial prejudice to the State caused by
the withdrawal of the plea. Prejudice to the
State is a germane factor against granting a
motion to withdraw.
Id. at 108, 425 S.E.2d at 717-18 (citations and quotations
omitted).
Defendant avers that he offered a “fair and just reason” to
the court during his 22 May 2006 hearing. He argues that he has
maintained his innocence throughout the proceedings, that only a
week passed between the time that his guilty plea was entered and
the time that he decided to withdraw his guilty plea, and that the
State's evidence of prejudice was insufficient.
Although defendant has asserted legal innocence throughout the
process, Judge Johnson wrote in his 9 June 2006 order that
the court finds in respect to [defendant]'s
testimony that it was not credible at all
concerning his explanation about how his
signature appeared on the statement given to
Lieutenant T L Hassler [sic] . . .; and
therefore, the court does not find
[defendant]'s testimony in its totality to be
credible at all on the issues of his
proclaimed innocence.
Defendant avers that Judge Johnson “misse[d] the mark” and that
“the material question . . . is whether the Defendant has in fact
asserted his legal innocence, not whether that assertion iscredible; indeed, the credibility of any assertion of innocence is
a question for the jury based on all the evidence, not the trial
court.” Defendant offers no legal authority to support his claim
that an assertion of legal innocence need not be credible to
constitute a “fair and just reason” under Handy. Handy does not
say that any assertion of innocence mandates an automatic plea
withdrawal; Handy states that an assertion of innocence is one
factor of several that the court should consider. Handy, 326 N.C.
at 539, 391 S.E.2d at 163.
Here, defendant acknowledged being at the robbery, knowing the
other robbers, and that his signature is on the statement prepared
by Lt. Hassler setting forth the facts of the robbery. In
addition, defendant testified that “probably a lot” of the driving
force behind his taking the plea was to “keep [his] feet on the
ground” and tend to his pending civil matter in Wake County.
Defendant's Alford plea allowed him to stay out of jail long enough
to take care of his civil case.
Although he estimated that he had decided to withdraw his plea
within a week or two of its entry, defendant did not file a motion
to withdraw that plea for over three months. According to Handy,
“[T]he standard for judging the movant's reasons for delay remains
low where the motion comes only a day or so after the plea was
entered.” Id. at 539, 391 S.E.2d at 162 (quoting United States v.
Barker, 514 F.2d 208, 222 (D.C. Cir.) (en banc) (1975)) (alteration
in original). However, “[b]y contrast, if the defendant has long
delayed his withdrawal motion, and has had the full benefit ofcompetent counsel at all times, the reasons given to support
withdrawal must have considerably more force.” Id. at 539, 391
S.E.2d at 163 (quoting Barker, 514 F.2d at 222).
Defendant waited three months before filing his motion to
withdraw, so his reasons supporting withdrawal must have more force
than the reasons of a defendant like Handy, who attempted to
withdraw his plea within twenty-four hours of entering it. Given
this more stringent requirement, it was not error for the trial
court to deny defendant's motion to withdraw because defendant had
not proffered a “fair and just reason” for withdrawal. Defendant's
assertion of innocence was uneven at best, he had competent
counsel, he waited more than three months to file his motion, and
the State's proffer of evidence was strong and included an
eyewitness who was familiar with defendant.
Defendant next argues that the trial court did not use the
correct legal standard when it ruled on defendant's motion to
withdraw. We disagree.
Defendant argues that the trial court did not apply the
correct Handy standard for ruling on a pre-sentence motion to
withdraw a plea because Judge Johnson stated, “I believe I can
state the general rule off the top of my head _ that, generally
speaking, a defendant is entitled to withdraw [his plea] unless the
state can show come kind of prejudice.” According to defendant,
the trial court “reiterated this misapprehension of the legal
standard in its Order when it concluded the State will be
prejudiced if Defendant's motion to withdraw his plea is allowedand '[t]herefore the defendant's motion to withdraw his plea . . .
is denied.'” (Alteration in original). Although Judge Johnson did
make these statements, and taken alone they might be evidence that
he applied the wrong standard to defendant's motion, these
statements do not constitute the totality of his reasoning.
After Judge Johnson stated the rule “off the top of his head,”
defense counsel replied, “give or take, that's the rule, Judge.”
Defense counsel indicated that the defense was arguing under Handy,
and then restated the standard:
But, Judge, the standard is pretty much like
that, presentencing, if the defendant shows a
just and _ a fair and just reason why it
should be withdrawn, that it's generally to be
allowed to be withdrawn is the general rule.
Certainly, if the state showed prejudice, that
overcomes that burden. All that is included
in Handy [sic].
Handy [sic] I picked as the standard because
it seemed that just about every other case
that I pulled off of Lexis all refer back to
Handy [sic] --
Defense counsel then gave a copy of the case to Judge Johnson, who
said that he would reread it.
At the close of the 22 May 2006 hearing, defense counsel
argued that defendant had met the “fair and just” standard. The
prosecutor then argued that defendant had not offered a “fair and
just” reason to withdraw his plea. Both attorneys referenced Handy
repeatedly.
During the 9 June 2006 judgment proceeding following the trial
court's denial of defendant's motion and in the accompanying order,the trial judge said that he had reviewed all forty-nine pages of
the transcript from the motion hearing and concluded:
And in summary form, the court finds in
respect to Mr. Hester's testimony that it was
not credible at all concerning his explanation
about how his signature appeared on the
statement given to Lieutenant T L Hassler
[sic] on October the 4th, 2004, at 420 hours
at the Spring Lake Police Department Annex;
and, therefore, does not find Mr. Hester's
testimony in its totality to be credible at
all on the issues of his proclaimed innocence.
The trial court specifically addressed defendant's assertion of
innocence and found it to be incredible. This indicates that the
trial court applied the Handy standard to defendant's situation,
and found defendant lacking.
The court then “further” found that the State would be
prejudiced in a trial going forward because its chief witness, Lt.
Hassler, would be working in Kosovo and unlikely to testify. Under
Handy, “[t]he State may refute the movant's showing by evidence of
concrete prejudice to its case by reason of the withdrawal of the
plea.” Handy, 326 N.C. at 539, 391 S.E.2d at 163. “Prejudice to
the State is a germane factor against granting a motion to
withdraw.” Id. Judge Johnson was thus entitled to consider the
prejudice to the State as an additional factor supporting his
denial of defendant's motion to withdraw.
Accordingly, we affirm the order of the trial court.
Affirmed.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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