STATE OF NORTH CAROLINA
v. Yancey County
No. 06 CRS 50642
BILLY WILSON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Derrick C. Mertz, for the State.
Geoffrey W. Hosford, for defendant-appellant.
JACKSON, Judge.
On 23 October 2006, Billy Wilson (“defendant
”) pled guilty to
assault inflicting serious bodily injury
.
In exchange for his
plea, the State agreed to dismiss a charge of assault with a deadly
weapon inflicting serious injury. Defendant further stipulated to
having six prior record level points and being a Level III
offender. The plea agreement also included the following:
The State seeks and does not oppose and the
Defendant consents to a sentence of a minimum
of 21 months, maximum of 26 months, suspended
and an intermediate sentence upon such terms
and conditions as the court deems just and
proper but specifically including a task
assessment and completion of the DART Cherry
program.
The State and the Defendant further stipulate,
understand and agree that the precedinglanguage is not to be construed as an
arrangement concerning sentencing and that
this plea is entered pursuant to the
provisions of N.C.G.S. 15A-1023(c) and
sentencing shall be in the sound discretion of
the court.
At the plea hearing,
the trial court sentenced defendant to an
active term of imprisonment, rather than suspend the sentence as
proposed in the plea agreement.
Defendant filed timely notice of
appeal.
Defendant contends that when the trial court declined to
sentence him in accordance with the plea agreement, it should have
provided him with the opportunity to withdraw his guilty plea. See
N.C. Gen. Stat. § 15A-1024 (2005). Defendant further argues that
the trial court, upon deciding not to accept the plea agreement,
should have continued the matter until the next session of court.
See id.
We disagree.
Preliminarily, we note that “'a challenge to the procedures
followed in accepting a guilty plea does not fall within the scope
of N.C. Gen. Stat. § 15A-1444 (2003), specifying the grounds giving
rise to an appeal as of right.'” State v. Carriker, __ N.C. App.
__, __, 637 S.E.2d 557, 558 (2006)
(quoting State v. Rhodes, 163
N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004)).
However, this
Court has held that “it is permissible for this Court to review
pursuant to a petition for writ of certiorari during the appeal
period a claim that the procedural requirements of Article 58 were
violated.”
Rhodes, 163 N.C. App. at 194, 592 S.E.2d at 733
.
Accordingly, in our discretion, we deny the State's motion to
dismiss and allow defendant's petition for writ of certiorari. On appeal, defendant claims that the trial court erred in not
following the procedural safeguards established by North Carolina
General Statutes, section 15A-1024. We disagree.
Section 15A-1024 provides that
[i]f at the time of sentencing, the judge for
any reason determines to impose a sentence
other than provided for in a plea arrangement
between the parties, the judge must inform the
defendant of that fact and inform the
defendant that he may withdraw his plea. Upon
withdrawal, the defendant is entitled to a
continuance until the next session of court.
N.C. Gen. Stat. § 15A-1024 (2005). As our
Supreme Court has
explained,
[t]he [] unambiguous language of 15A-1024
discloses that this statute applies in cases
in which the trial judge does not reject a
plea arrangement when it is presented to him
but hears the evidence and at the time for
sentencing determines that a sentence
different from that provided for in the plea
arrangement must be imposed. Under the
express provisions of this statute a defendant
is entitled to withdraw his plea and as a
matter of right have his case continued until
the next term.
State v. Williams
, 291 N.C. 442, 446.47, 230 S.E.2d 515, 517.18
(1976) (emphasis in original).
We conclude, however, that the provisions of section 15A-1024
do not apply in the instant case because the trial court did not
reject the plea agreement. The plea agreement plainly and
unambiguously stated that there was no arrangement concerning
sentencing and that sentencing was left to the discretion of the
trial court. At the plea hearing, the district attorney reiteratedthe State's position that it did not “oppose” a suspended sentence,
but “in the end sentencing is in Your Honor's discretion.”
The trial court informed defendant of every right listed in
North Carolina General Statutes, section 15A-1022 as well as the
maximum possible sentence. The Court also questioned defendant
regarding his understanding of the charges and his satisfaction
with his counsel before accepting the plea.
The trial court then
explained to defendant that sentencing would be in the court's
discretion, and defendant indicated that he understood and agreed
to these terms.
North Carolina law is well-settled that where
there is ample evidence to support a
finding that the guilty plea
was fully, knowingly, and voluntarily entered, the acceptance of
the plea will not be disturbed on appeal. See State v. Jackson, 279
N.C. 503, 504, 183 S.E.2d 550, 551 (1971). Accordingly, we
overrule defendant's argument.
Defendant has failed to argue assignment of error number 1 in
the record on appeal, and therefore, it is deemed abandoned. See
N.C. R. App. P. 28(b)(6) (2006).
No Error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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