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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
STATE OF NORTH CAROLINA
v. Wake County
No. 04 CRS 102544
STEVEN DEAN BOBBITT
Appeal by defendant from order and judgment entered 11
September 2006 by Judge J.B. Allen, Jr., in Wake County Superior
Court. Heard in the Court of Appeals 16 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Dana B. French, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for
Steven Dean Bobbitt (defendant) appeals from order entered
denying his motion to withdraw his guilty plea and judgment entered
for trafficking in cocaine by possession pursuant N.C. Gen. Stat.
§ 90-95(H)(3). We affirm.
Defendant was indicted on 13 December 2004 for trafficking in
cocaine by possession. At the plea hearing on 27 April 2005, the
State's evidence tended to show that in early November 2004 Raleigh
police officers received a tip from an informant that defendant
would be leaving his residence in possession of cocaine. Police
followed defendant's car from his house to a parking lot and
stopped the vehicle. Defendant was riding in the passenger seatand cocaine was discovered in small bags in the car. Defendant was
placed in custody and he later consented to a search of his house.
Defendant directed the police officers to a location in the house
where over 300 grams of cocaine was located. At the hearing,
defendant entered a guilty plea in which the State agreed to defer
sentencing to allow defendant to render substantial assistance.
Defendant failed to appear at his sentencing hearing scheduled
for 8 August 2005 and was arrested on 29 November 2005. On 5
September 2006, defendant's motion to withdraw his guilty plea was
heard. The trial court denied defendant's motion and found that he
had failed to render substantial assistance and imposed an active
sentence of a minimum of seventy months to a maximum of eighty-four
months imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) concluding he
failed to show any fair and just reason to withdraw his guilty plea
because he understood the consequences of his guilty plea and (2)
determining he had not rendered substantial assistance to the
III. Motion to Withdraw Guilty Plea
Defendant contends the trial court erred in denying his motion
to withdraw his guilty plea because it found he understood the
consequences of his guilty plea. We disagree.
A. Standard of Review
A decision to deny a defendant's motion to withdraw a guilty
plea is not reviewed under the abuse of discretion standard, butupon an independent review of the record. State v. Handy, 326 N.C.
532, 539, 391 S.E.2d 159, 162 (1990). Although a defendant does
not have an absolute right to withdraw a guilty plea, a motion to
withdraw a guilty plea before sentencing will be granted liberally
if the defendant presents a fair and just reason to withdraw.
Factors which favor granting the motion include: (1) whether
the defendant has asserted his innocence; (2) the strength of the
State's evidence; (3) the length of time between the guilty plea
and the motion to withdraw it; and (4) whether the defendant has
had competent legal representation. Id. at 539, 391 S.E.2d at 163.
Misunderstanding the consequences of a guilty plea, hasty entry,
confusion, and coercion are also factors to be considered. Id.
Once a defendant makes the proper showing, the State may refute the
defendant's motion by showing evidence of prejudice to the State if
the motion is granted. Id.
Here, the first time defendant asserted he was not guilty was
upon examination by the trial judge at the 5 September 2006
hearing. The trial court asked defendant if he had told the trial
judge at the 27 April 2005 plea hearing that he was in fact guilty,
and defendant answered, I might have told him that, but I don't
think that I was. I just think that I went off the advice of my
lawyer at the time.
Defendant admitted to Raleigh Police Detective L.T. Mashburn
(Detective Mashburn) after the house search that the drugsrecovered were his and never asserted his innocence until the
September 2006 hearing. Defendant's statement is not a bold
assertion of innocence, but rather an equivocation about entering
into the guilty plea.
Defendant presented evidence that prior to entering his guilty
plea, he and his attorney had discussed filing a motion to suppress
evidence because the attorney had real questions about the
validity of the stop and how that might hold up at a hearing. A
motion to suppress was filed by defendant but was never heard
because defendant ultimately decided to plead guilty. Within a
week after entering the plea, defendant went to his trial counsel
and told him that he wanted a new attorney and that he wanted to go
to trial. Defendant now argues that he always had concerns about
the strength of the State's case and that he only pled guilty on
the advice of his lawyer. Defendant did not seek to file a motion
to withdraw his guilty plea at any time until after he was arrested
for failure to appear in November 2005.
Defendant failed to file his motion to withdraw his guilty
plea until approximately eight months after his guilty plea was
entered. This Court has previously placed great emphasis on the
length of time that elapses between entry of a guilty plea and a
motion to withdraw the plea. State v. Robinson, 177 N.C. App. 225,
229-30, 628 S.E.2d 252, 255 (2006). The passage of eight months is
a longtime to allow a defendant to withdraw a guilty plea without
defendant asserting strong reasons to allow withdrawal. See State
v. Marshburn, 109 N.C. App. 105, 108-09, 425 S.E.2d 715, 718 (1993)(An eight month delay required a defendant to show considerably
more force than if he requested withdrawal within one day or so of
the plea being entered.)
Defendant's argument that he exhibited signs of being
dissatisfied with his guilty plea immediately following its entry
is inapposite. Mere dissatisfaction with a guilty plea is not the
equivalent of an intention to withdraw the plea, and such intention
must be manifested by filing a motion. See Handy, 326 N.C. at 536,
391 S.E.2d at 161 (A fundamental distinction exists between
situations in which a defendant pleads guilty but changes his mind
and seeks to withdraw the plea before sentencing and [those cases]
in which a defendant only attempts to withdraw the guilty plea
after he hears and is dissatisfied with the sentence.)
Defendant also sought to withdraw his guilty plea because the
plea was entered in haste and he was confused about the
consequences of the plea. Defendant met with his attorney on more
than one occasion before entering the guilty plea, including a two-
hour session with his attorney. Defendant had sufficient time to
discuss strategy with his attorney. Defendant's confusion about
the consequences of his guilty plea stem from the possible effect
of providing substantial assistance. Defendant does not claim to
have been confused about the terms of the plea itself. At the plea
hearing, defendant told the trial judge he understood the terms of
the plea and accepted them. Evidence was also presented that the
meaning of substantial assistance was explained to defendant by
his attorney and Detective Mashburn. Defendant failed to show a fair and just reason for allowing
him to withdraw his guilty plea. Handy, 326 N.C. at 539, 391
S.E.2d at 162. The State refuted defendant's motion with
sufficient evidence to support the trial court's finding that
defendant understood the terms and consequences of his guilty plea.
This assignment of error is overruled.
IV. Failure to Render Substantial Assistance
Defendant argues the trial court erred by finding he did not
render substantial assistance to the police. We disagree.
A trial judge has the authority to reduce a defendant's
sentence if a defendant has to the best of his knowledge, provided
substantial assistance in the identification, arrest, or conviction
of any accomplices, accessories, co-conspirators, or principals if
the sentencing judge enters in the record a finding that the person
to be sentenced has rendered such substantial assistance. N.C.
Gen. Stat. § 90-95(h)(5) (2005). The determination of whether a
defendant has rendered substantial assistance rests within the
sound discretion of the trial court. Robinson, 177 N.C. App. at
232, 628 S.E.2d at 256. Even if the trial court makes a finding of
substantial assistance being rendered, the court is not required to
reduce a defendant's sentence or punishment. Id. at 232-33, 628
S.E.2d at 256.
At the hearing, defendant called Detective Mashburn to testify
to the assistance he had provided to law enforcement. In November
2004, defendant cooperated with police by consenting to a search of
his home and directing them to the location of over 300 grams ofcocaine. Defendant stated that the cocaine came from Atlanta, but
did not give the names of his suppliers.
After defendant pled guilty, Detective Mashburn told defendant
he would need more information in order to have the district
attorney reduce the amount of his bond. Defendant provided four
names to the detective and the bond was subsequently reduced,
enabling defendant to post bond and be released from jail.
Defendant met with Detective Mashburn once more in June 2005, but
failed to contact him again.
Detective Mashburn testified that the information defendant
provided did not result in any leads and the police were unable to
confirm the identity of two of the people named by defendant.
Defendant testified at the motion hearing that although he called
the police once, he wasn't in a situation to do that type of
work, and that providing substantial assistance wasn't in [his]
family's best interest.
Based upon testimony presented at the hearing, defendant has
failed to show the trial court abused its discretion in finding
defendant had failed to render substantial assistance. This
assignment of error is overruled.
Defendant has failed to show a fair and just reason to allow
his motion to withdraw his guilty plea. Handy
, 326 N.C. at 539,
391 S.E.2d at 162. Sufficient evidence was presented to support
the trial court's finding that defendant understood the terms and
consequences of his guilty plea. Sufficient evidence supports the trial court's finding that
defendant failed to render substantial assistance to the police.
The order denying defendant's motion to withdraw his guilty plea
and the judgment entered thereon are affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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