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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1463


Filed: 4 September 2007


v .                         Cumberland County
                            No. 04 CRS 063895


    Appeal by defendant from judgment entered 9 June 2006 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 23 May 2007.

    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.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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