Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

The presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether the defendant has signed an appeal waiver. Defendant Garza signed two plea agreements arising from charges brought by the State of Idaho. Each agreement included a provision stating that Garza waived his right to appeal. The trial court accepted the agreements and sentenced Garza. Shortly thereafter Garza told his trial counsel that he wanted to appeal. Although Garza continuously reminded his attorney of this directive, counsel did not file a notice of appeal informing Garza that appeal was problematic because of the waiver. About four months after sentencing Garza sought post-conviction relief in state court, alleging that trial counsel provided ineffective assistance by failing to file notices of appeal despite his requests. The trial court denied relief, and this ruling was affirmed by the state appellate courts. The U.S. Supreme Court granted certiorari to resolve a split of authority on this issue.

            As a general rule, a defendant claiming ineffective assistance of counsel must prove that counsel’s representation fell below an objective standard of reasonableness and that prejudice occurred. In certain circumstances however prejudice is presumed, such as where the defendant is denied counsel at a critical stage or where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. Additionally, in Flores-Ortega, 528 U.S. 470 (2000), the Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice is presumed. The question presented in this case was: whether that rule applies even when the defendant has, in the course of pleading guilty, signed an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. The Court held that it does.

            The Court first determined that Garza’s lawyer provided deficient performance: “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Turning to the crux of the case, the Court held that the Flores-Ortega presumption of prejudice applied despite the appeal waiver. The Court reasoned that because there is no dispute that Garza wished to appeal, a direct application of that case resolves this one. It held: When counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal, with no need for a further showing of the merit of his claim, regardless of whether an appeal waiver was signed.

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

Under G.S. 15A-1444, the defendant did not have a right to appeal whether his guilty plea was knowing and voluntary. The defendant argued that his plea was invalid based on the trial court’s assurance that he could appeal the denial of his motion to dismiss. However, considering the defendant's petition for writ of certiorari, the court exercised its discretion to invoke Rule 2 to suspend the Rules and address the merits of the defendant’s appeal.

Over a dissent, the court held that it had jurisdiction to consider the defendant’s appeal under G.S. 15A-1444(e). After the trial court announced the sentence in open court, defense counsel indicated that the defendant would like to strike her plea because she would like “to take it to trial.” The court declined to strike the plea and the defendant appealed. The court held that notwithstanding State v. Carriker, 180 N.C. App. 470 (2006), under G.S. 15A-1444(e) and State v. Dickens, 299 N.C. 76 (1980), a defendant has a right to appeal when a motion to withdraw a guilty plea has been denied.

A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement had no right to appeal the sentence, which was greater than that allowed by the applicable statute at the time. G.S. 15A-1444 allows for appeal after a guilty plea for terms that are unauthorized under provisions of Chapter 15A; the drug trafficking defendant here was sentenced under Chapter 90. However, the court went on to find that the defendant’s plea was invalid.

(1) The defendant, who pleaded guilty in this drug case, had no statutory right under G.S. 15A-1444 to appeal where his appeal pertained to the voluntariness of his plea. (2) Notwithstanding prior case law, and over a dissent, the court held that the defendant could not seek review by way of certiorari where the defendant’s claim did fall within any of the three grounds set forth in Appellate Rule 21(a)(1). The court distinguished prior cases in which certiorari had been granted, noting that none addressed the requirements of Rule 21. (3) The court declined to exercise its discretion under Appellate Rule 2 to suspend the rules of appellate procedure, finding that the defendant had not demonstrated exceptional circumstances warranting such action.

The defendant’s assertions in his MAR, filed more than seven years after expiration of the appeal period, that his plea was invalid because the trial court failed to follow the procedural requirements of G.S. 15A-1023 and -1024 were precluded by G.S. 15A-1027 (“Noncompliance with the procedures of this Article may not be a basis for review of a conviction after the appeal period for the conviction has expired.”).

Where the defendant pleaded guilty in this DWI case “and preserved his right to appeal” the denial of his motion to dismiss, the court found that the defendant had no statutory right to appeal the issue or ground to request review by way of certiorari. The defendant’s motion alleged that he was denied his constitutional right to communicate with counsel and friends and gather evidence on his behalf by allowing friends or family to observe him and form opinions as to his condition. The court thus dismissed the appeal without prejudice to the defendant’s right to pursue relief by way of a MAR.

Although the court treated the defendant’s brief challenging his guilty plea as a writ of certiorari and addressed his contentions, it reviewed the law on the right to appeal after a plea, stating: A defendant who has entered a guilty plea is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea. Thus, the court concluded, a defendant does not have an appeal as a matter of right to challenge the trial court’s acceptance of his guilty plea as knowing and voluntary absent a denial of a motion to withdraw that plea.

By pleading guilty to multiple counts of felon in possession, the defendant waived the right to challenge his convictions on double jeopardy grounds.

The defendant pled guilty to felony serious injury by vehicle based on a single vehicle accident. The State presented a factual basis for the plea indicating that the defendant’s girlfriend’s infant child was injured and that an analysis of the defendant’s blood showed the presence of Alprazolam and Benzodiazepine. The court of appeals granted the defendant’s petition for writ of certiorari but rejected his argument that the factual basis for the plea was insufficient under G.S. 15A-1022(c). The court concluded that the information was sufficient despite not including information about the timing of the defendant’s impairment or the seriousness of the infant’s injuries, because those elements could reasonably be inferred from the other information the State provided. A dissenting judge would have denied the defendant’s petition for writ of certiorari and granted the State’s motion to dismiss the appeal.

There was a sufficient factual basis to support the defendant’s guilty plea to robbery charges. The defendant stipulated that a factual basis existed to support his guilty plea and then stipulated to the State’s summary of the factual basis which it provided to the trial court. After the State entered its summary into the record, the trial court asked the defendant if he had any additions or corrections and he responded in the negative.

Because there was an insufficient factual basis to support an Alford plea that included an admission to aggravating factors, the court vacated the plea and remanded for proceedings on the original charge. The defendant was charged with the first-degree murder of his wife. He entered an Alford plea to second-degree murder, pursuant to a plea agreement that required him to concede the existence of two aggravating factors. The trial court accepted the plea agreement, found the existence of those aggravating factors, and sentenced the defendant for second-degree murder in the aggravated range. The court found that there was not a sufficient factual basis to support the aggravating factor that the offense was especially heinous, cruel, and atrocious. The record did not show excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects. The court rejected the State’s argument that the aggravating factor was supported by the fact that the victim was killed within the “sanctuary” of her home. On this issue, the court distinguished prior case law on grounds that in those cases the defendant was not lawfully in the victim’s home; here the crime occurred in a home that the defendant lawfully shared with the victim. The court also rejected the State’s argument that the mere fact that the victim did not die instantaneously supported the aggravating factor. The court also found an insufficient factual basis to support the aggravating factor that the defendant took advantage of a position of trust or confidence, reasoning that “[t]he relationship of husband and wife does not per se support a finding of trust or confidence where [t]here was no evidence showing that defendant exploited his wife's trust in order to kill her.” (quotation omitted). Here, there was no evidence that the defendant so exploited his wife’s trust.

There was a sufficient factual basis for the defendant’s pleas to possession of a stolen firearm and possession with intent to sell or deliver a controlled substance. There was evidence that the gun was stolen and that the defendant knew or had reasonable grounds to know that. There was also evidence that the defendant possessed cocaine with the intent to sell and deliver it. Additionally, the fact that the defendant purchased the firearm in exchange for cocaine constituted other incriminating evidence of knowledge and intent.

There was a sufficient factual basis for the defendant’s plea to felony breaking or entering where the State’s summary of the evidence was sufficient under G.S. 15A-1022(c). The State indicated that BB&T owned a residence located at 128 Lake Drive in Candler as a result of a foreclosure and that the defendant broke into the house and was preparing to move in when she was discovered on the property.

The prosecutor’s summary of facts and the defendant’s stipulations were sufficient to establish a factual basis for the plea.

There was an adequate factual basis for the defendant’s Alford plea in a child abuse case based on starvation where the trial court heard evidence from a DSS attorney, the victim, and the defendant’s expert witness.

State v. Flint, 199 N.C. App. 709 (Sept. 15, 2009)

Holding, over a dissent, that there was an inadequate factual basis for some of the pleaded-to felonies. While the transcript of plea addressed 68 felony charges plus a habitual felon indictment, the trial court relied solely on the State’s factual basis document, which addressed only 47 charges. The transcript of plea form could not provide the factual basis for the plea. Nor could the indictments serve this purpose where they did not appear to have been before the trial judge at the time of the plea.

In 2011 the defendant was charged with first-degree murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon for his participation in a murder allegedly committed by Taurus Locklear and Shawn Jones. A plea agreement allowed the defendant to plead guilty to second-degree murder and other crimes in exchange for his cooperation in the pending prosecutions of Locklear and Jones. The trial court accepted the guilty plea in 2014, but deferred sentencing pending the resolution of the case against Locklear. However, in 2015 the State dismissed the charges against Locklear due to issues with the witnesses and evidence against him. At that point, the defendant moved with withdraw his guilty plea. At an evidentiary hearing in April 2016 two officers gave inconsistent accounts of the defendant’s statements during their investigation of the case. At a subsequent hearing in June 2016, the defendant’s lawyer testified that, in light of his own failure to examine the discrepancies between the officers’ accounts, he gave ineffective assistance in the plea agreement process, and that the defendant should therefore be entitled to withdraw his plea. The trial judge denied the motion and entered judgment. The defendant appealed. The Court of Appeals considered whether the defendant had shown “any fair and just reason” for withdrawing the plea—the proper standard for evaluating a motion filed prior to sentencing. Applying the factors spelled out by the Supreme Court in State v. Handy, 326 N.C. 532 (1990), the Court of Appeals concluded over a dissent that the trial court did not err by denying the motion. The defendant appealed to the Supreme Court.

The Supreme Court affirmed the Court of Appeals, concluding that the defendant failed to show any fair and just reason for withdrawing the guilty plea. The Court examined each of the Handy factors in turn. As to the first factor, whether the defendant asserted his legal innocence, the Court concluded that the fact that the defendant’s guilty plea was not a no contest or Alford plea weighed against allowing him to withdraw it. As to the second factor, the strength of the State’s proffer of evidence, the Court noted that the factual basis for the plea presented by the State was “essentially uncontested” and therefore sufficient. As to the third factor, the length of time between entry of the guilty plea and the desire to change it, the Court concluded that the 18-month delay in this case did not favor allowing the defendant to withdraw the plea. As to the fourth factor, the competency of counsel, the Court agreed that the factor was inconclusive. Taking all of the factors into consideration, the Court ultimately agreed with the Court of Appeals’ conclusion that the defendant failed to show “any fair and just reason” to withdraw the guilty plea. The Court dismissed the defendant’s related ineffective assistance of counsel claim without prejudice to his right to file it as a motion for appropriate relief.

The defendant entered an Alford plea pursuant to a plea agreement where convictions for felony larceny and felony possession of a stolen motor vehicle would be consolidated for sentencing.  The defendant failed to appear at a scheduled sentencing hearing and was later arrested.  When the defendant appeared over two months later at a sentencing hearing following his arrest, he moved to withdraw his plea but the trial court denied the motion.  Analyzing the non-exclusive list of factors enumerated in State v. Handy, 326 N.C. 532 (1990) bearing on whether a defendant has carried his or her burden of showing some “fair and just reason” supporting withdrawal of the plea, the court found, focusing particularly on the defendant’s failure to show the timeliness of his motion, that the trial court did not err in denying the defendant’s motion to withdraw his plea.

Addressing the defendant’s separate argument that there was an insufficient factual basis for his plea and recognizing precedent holding that a factual basis for an Alford plea cannot be supplied by a plea transcript standing alone, the court distinguished State v. Agnew, 361 N.C. 333 (2007) and concluded that factual information alleged in the indictments coupled with the plea transcript provided a sufficient factual basis for the plea and the trial court did not err in accepting it.

In this case involving a motion to withdraw a plea and an MAR, the trial court did not err by denying the defendant’s motions.  On April 10, 2018 the defendant pleaded guilty to felony drug offenses, answering affirmatively that he understood the charges to which he was pleading and that he was in fact guilty of the charges.  On April 12, 2018 the defendant filed the motions at issue, alleging that he “felt dazed and confused” at the time of the plea because of lack of sleep and medications he was taking, did not understand that he was pleading to three felonies, did not understand what a consolidated judgment meant, did not have enough time to consider his plea and felt pressure to make a decision, and was not aware of the negative employment ramifications of his plea.  On April 16, the motions were heard in Superior Court, where the court made extensive findings of fact supporting its conclusion that the motions were without merit.  The defendant argued on appeal that the trial court erred because the circumstances demonstrated that withdrawal of his plea would prevent manifest injustice.  Specifically, the defendant argued that his plea should be withdrawn because he (1) is innocent, (2) pled guilty in haste, and (3) pled guilty in confusion based on erroneous beliefs about the nature of a consolidated judgment.  The court reviewed the record and, for reasons stated in the opinion, found each of these arguments meritless.

Pursuant to a plea agreement, the defendant entered a no contest plea to charges including fleeing to elude and being an habitual felon, and in return several other charges were dismissed by the state. The defendant was advised of what his sentence would be, but was released on conditions until his sentencing date two months later. The defendant failed to appear for sentencing, and an order for his arrest was issued. At the next court hearing, the defendant asked to withdraw his no contest plea. The trial court denied the request and entered judgment.

As a matter of first impression, the Court of Appeals held that when a defendant has been advised of what his or her sentence will be, the standard for evaluating whether the defendant should have been allowed to withdraw from the plea is the same as the standard used after a defendant has been sentenced: “it is appropriate to review the trial court’s denial of Defendant’s motion only to determine whether it amounted to a manifest injustice, and not according to the ‘any fair and just reason’ standard.” The court reasoned that the same considerations (e.g, the possibility that the defendant will view the plea as a ‘tactical mistake’ once he learns the sentence, the state’s detrimental reliance on the plea, and the policy of protecting the finality of convictions) are present in both situations, so the same standard should apply.

Alternatively, even under the lower ‘any fair and just reason’ standard that applies to requests to withdraw a guilty or no contest plea prior to sentencing, the particular facts of this case did not warrant relief.

The trial court did not err by denying the defendant’s motion to withdraw his Alford plea. After finding that there was no support in the record for various factual assertions made by the defendant on appeal, the court found that the defendant had offered no fair and just reason for withdrawal of his plea. Among other things, the court rejected the defendant’s argument that he entered his plea while under duress because he was in custody at the time, holding: “Defendant cites no authority for the proposition that the fact that a defendant is incarcerated is per se evidence of coercion, and we decline to adopt the position proposed by defendant.”

The trial court did not err by denying the defendant’s post-sentence motion to withdraw her guilty plea. On appeal the defendant argued that the trial court erred by denying her motion because the plea agreement and plea colloquy contained no indication that a fine would be imposed as part of her punishment. In fact a fine of $1000 was imposed. The court noted that under G.S. 15A-1024, if at the time of sentencing a judge decides to impose a sentence other than that provided for in a plea arrangement, the judge must inform the defendant of that fact and inform the defendant that he may withdraw the plea. If however the sentence imposed is consistent with the plea agreement, the defendant is entitled to withdraw his plea after sentencing only upon a showing of manifest injustice. Here, the plea agreement specified only three things: the crime to which the defendant would plead guilty; the charges that would be dismissed; and the defendant’s prior record level and number of prior record level points. The plea agreement did not contain any specific terms regarding the sentence. Thus, the court found itself unable to conclude that the trial court imposed a sentence other than that provided for in the plea arrangement. Having determined that the sentence was not inconsistent with the plea agreement and that the defendant was not entitled to relief under G.S. 15A-1024 the court went on to conclude that no manifest injustice supported granting the post-sentence motion to withdraw the guilty plea. Here, the defendant provided no specific reason in support of her motion to withdraw, except that she had decided she would like to take her case to trial.

In this robbery case, the trial court did not err by denying the defendant’s motion to withdraw his guilty plea. Shortly after the jury was empaneled, the defendant decided to enter into a plea arrangement with the State. In exchange for his guilty plea, the defendant received a PJC, apparently so that he could provide the State with information concerning an unrelated criminal case in exchange for a potentially more lenient sentence. After entry of the plea and prior to sentencing, the State determined not to use the defendant as a witness in the other case. The defendant moved to withdraw his guilty plea, asserting that his trial counsel provided incomplete or erroneous advice concerning habitual felon sentencing which resulted in his misunderstanding the consequences of his plea and also conspired with the State to “trick” him into pleading guilty. Analyzing the case under the State v. Handy, 326 N.C. 532 (1990), “any fair and just reason” standard for withdrawal of a plea before sentencing, the court held that the trial court did not err by denying the defendant’s motion. It noted, in part, that the defendant did not assert legal innocence; that the State’s case was not weak; and that the defendant waited nine days to file his motion to withdraw his plea after the chance of receiving a more lenient sentence evaporated, suggesting “a well thought out and calculated tactical decision.” Citing the record, which “plainly and unambiguously” showed that the defendant was fully informed of the consequences of his plea, the court rejected the defendant’s contention that he was operating under a misapprehension of the law regarding habitual felon sentencing due to trial counsel’s incorrect legal advice, which he claimed was intentionally provided pursuant to a broad but undefined conspiracy between court appointed attorneys and the State to trick defendants into entering unfavorable pleas.

The trial court did not err by denying the defendant’s motion to withdraw his guilty plea. When a defendant seeks to withdraw a guilty plea after being sentenced consistent with a plea agreement, the defendant is entitled to withdraw his plea only upon a showing of manifest injustice. Factors relevant to the analysis include whether the defendant was represented by competent counsel and is asserting innocence, and whether the plea was made knowingly and voluntarily or was the result of misunderstanding, haste, coercion, or confusion. None of these factors were present here. The defendant was represented by competent counsel, admitted his guilt, averred that he made the plea knowingly and voluntarily, and admitted that he fully understood the plea agreement and that he accepted the arrangement.

The trial court did not err by denying the defendant’s motion to withdraw his plea, made before sentencing. The fact that the plea was a no contest or Alford plea did not establish an assertion of legal innocence for purposes of the State v. Handy analysis that applies to pre-sentencing plea withdrawal requests. Although the defendant testified at a co-defendant’s trial that he did not agree to take part in the crime, that testimony was negated by his stipulation to the factual basis for his plea and argument for a mitigated sentence based on acceptance of responsibility. The court also concluded that the State’s uncontested proffer of the factual basis at the defendant’s plea hearing was strong and that the fact that the co-defendant was acquitted at trial was irrelevant to the analysis. The court held that based on the full colloquy accompanying the plea, it was voluntarily entered. It also rejected the defendant’s argument that an alleged misrepresentation by his original retained counsel caused him to enter the plea when such counsel later was discharged and the defendant was represented by new counsel at the time of the plea. Although the defendant sought to withdraw his plea only nine days after its entry, this factor did not weigh in favor of withdrawal where the defendant executed the plea transcript approximately 3½ months before the plea was entered and never waivered in this decision.

The trial court did not err in denying the defendant’s motion to withdraw a plea, made after sentencing. Such pleas should be granted only to avoid manifest injustice, which was not shown on the facts presented.

The trial court did not err in denying the defendant’s motion to withdraw his plea before sentencing; no fair and just reason supported the motion.

The defendant’s plea was valid even though the plea agreement contained an unenforceable provision preserving his right to appeal the transfer of his juvenile case to superior court. Distinguishing cases holding that the inclusion of an invalid provision reserving the right to obtain appellate review of a particular issue rendered a plea agreement unenforceable, the court noted that in this case the defendant had ample notice that the provision was, in all probability, unenforceable and he elected to proceed with his guilty plea in spite of this. Specifically, he was so informed by the trial court.

The defendant’s plea agreement impermissibly sought to preserve the right to appeal adverse rulings on his motions to dismiss and in limine when no right to appeal those rulings in fact existed. The court remanded, instructing that the defendant may withdraw his guilty plea and proceed to trial or attempt to negotiate another plea agreement that does not violate the law.

The trial court erred by accepting a plea agreement that attempted to preserve the defendant’s right to appeal the trial court’s adverse ruling on his motion to dismiss a felon in possession of a firearm charge on grounds that the statute was unconstitutional as applied. Because a defendant has no right to appeal such a ruling, the court vacated the plea and remanded. A dissenting judge would have dismissed the appeal entirely because of the defendant’s failure to include a copy of his written motion to dismiss and suppress in the record.

The defendant’s plea had to be vacated where the plea agreement included a term that the defendant had a right to appeal an adverse ruling on a pretrial motion but the pretrial motion was not subject to appellate review.

The state and the defendant negotiated a plea agreement in which the defendant would plead guilty to assault by strangulation, second-degree kidnapping, and assault with a deadly weapon, and agreed that he would receive one consolidated active sentence. Under the terms of the plea agreement, sentencing would be postponed for two months; however, if the defendant failed to appear for sentencing, the agreement would no longer be binding and sentencing would be in the court’s discretion. The defendant did appear on the scheduled sentencing date (a Tuesday), but the sentencing was first continued to Friday of the same week before being rescheduled again to Wednesday. Defendant’s attorney stated that he had informed the defendant of the new date, but on Wednesday the defendant was not present at the beginning of court. The defendant showed up an hour and fifteen minutes later, and said he thought that court started an hour later. The prosecutor argued that by failing to appear as agreed, the defendant had breached the terms of the plea bargain and was therefore subject to sentencing in the court’s discretion. After hearing from the victim and both attorneys, the judge agreed with the state and sentenced the defendant to consecutive active sentences instead of one consolidated sentence as laid out in the plea agreement.

The defendant filed a petition for writ of certiorari, arguing that the trial court erred by failing to sentence him in accordance with the plea agreement, and the appellate court agreed. Although plea agreements are contractual in nature, they also involve a waiver of the defendant’s constitutional rights and there must be safeguards to ensure that the defendant receives what he is due. In this case, the defendant did not breach the terms of the plea agreement because he appeared as ordered on the original sentencing date. Additionally, although the defendant was late to court on the rescheduled date, he did appear. Since the state still received the benefit of its bargain by securing the guilty pleas, and since the spirit of the agreement (that the defendant would appear for sentencing at a later date) was fulfilled, the appellate court concluded that the defendant should not have to forfeit what was promised to him under the agreement. The defendant’s “tardiness” did not constitute a breach; therefore, the state violated the plea agreement by asking the court to sentence the defendant in its discretion, and the trial court erred by imposing a sentence in violation of the defendant’s due process rights. The appellate court vacated the judgment, reinstated the plea agreement, and remanded for further proceedings.

The trial court erred by setting aside the plea agreement in response to the defendant’s motion seeking return of seized property. The defendant pleaded guilty pursuant to a plea agreement that called for, in part, the return of over $6,000 in seized funds. The defendant complied with her obligations under the agreement, but the State did not return the funds, on grounds that they had been forfeited to federal and State authorities. When the defendant filed a motion for return of the property, the trial court found that the State had breached the agreement but that specific performance was impossible; instead, the trial judge struck the plea. The court began by agreeing that the State breached the plea agreement. It went on to conclude that because the State was in a better position to know whether the money had been forfeited, it bore the risk as to the mistake of fact. It explained:

[When] the district attorney entered into the plea agreement, he was capable of confirming the status of the funds prior to agreeing to return them to defendant. The money was seized from defendant and sent to the DEA the same month. The parties did not enter into the plea agreement until approximately nine months after the forfeiture . . . . The State could have easily confirmed the availability of the funds prior to the execution of the agreement but failed to do so. Therefore, the State must bear the risk of that mistake and the Court erred by rescinding the plea agreement based on a mistake of fact.

In this case, it concluded, rescission could not repair the harm to the defendant because the defendant had already completed approximately nine months of probation and had complied with all the terms of the plea agreement, including payment of fines and costs. The court reasoned that while the particular funds seized were no longer available, “money is fungible” and “there is no requirement that the exact funds seized must be returned to defendant and the State cannot avoid its obligation on this basis.” The court reversed the trial court’s order, reinstated the plea, and ordered the State to return the funds.

The trial court did not err by denying the defendant’s motion to continue after rejecting his Alford plea, where the defendant did not move for a continuance until the second week of trial. The defendant argued that he had an absolute right to a continuance under G.S. 15A-1023(b) (providing in part that “[u]pon rejection of the plea arrangement by the judge the defendant is entitled to a continuance until the next session of court”). Here, where the defendant failed to move for a continuance until the second week of trial, his statutory right to a continuance was waived.

State v. Rico, 366 N.C. 327 (Dec. 14, 2012)

For the reasons stated in the dissenting opinion below, the court reversed State v. Rico, 218N.C. App. 109 (Jan. 17, 2012) (holding, over a dissent, that where there was a mistake in the plea agreement and where the defendant fully complied with the agreement, and the risk of any mistake in a plea agreement must be borne by the State; according to the court, both parties mistakenly believed that the aggravating factor of use of a firearm could enhance a sentence for voluntary manslaughter by use of that same firearm; the court determined that the State remains bound by the plea agreement and that the defendant must be resentenced on his guilty plea to voluntary manslaughter; the dissenting judge argued that the proper remedy was to set aside the plea arrangement and remand for disposition of the original charge (murder)).

The defendant was indicted in 2013 for first-degree murder, attempted armed robbery, and conspiracy to commit murder for crimes committed in 1996. Pursuant to a plea agreement, the defendant pled guilty in June 2014 to a reduced charge of second-degree murder, attempted armed robbery, and conspiracy to commit robbery, for which he received a consolidated sentence of 120 to 153 months. In June 2015, the defendant filed a motion for appropriate relief claiming that the indictment for attempted armed robbery was fatally defective by failing to name any victim. The trial judge denied the motion, and the defendant petitioned for a writ of certiorari. (1) A majority of the Court of Appeals ruled that the indictment was fatally defective and did not provide the trial court with jurisdiction to enter judgment on the defendant’s guilty plea to attempted armed robbery. The Court recognized that armed robbery is a crime against the person. Like common law robbery, it involves the taking of money or goods from the person or presence of another by violence or intimidation. The only difference is the use of a firearm or other dangerous weapon. Indictments for such crimes must specifically name the victim. The Court held that attempted armed robbery is indistinguishable from the completed crime in terms of the subject matter and the victim must be specifically named in the indictment. The indictment in this case alleged the victims as employees of the Huddle House. Relying on prior decisions, including the North Carolina Supreme Court’s decision in State v. Scott, 237 N.C. 432 (1953), the Court ruled that this allegation was not sufficient to satisfy the requirement that the victim be specifically named. A dissenting judge would have found the indictment sufficient because the allegation that the defendant was attempting to steal property from the employees of Huddle House was sufficient to show that the defendant was taking others’ property and the allegation that the lives of the employees were threatened or endangered by the defendant’s possession of a firearm was sufficient to put him on notice of the manner and means by which the crime was perpetrated. (2) The Court of Appeals rejected the requested remedy of vacating his conviction for attempted armed robbery. The Court held that by successfully moving to vacate the judgment for armed robbery, the Court was obliged to vacate the whole plea agreement. The Court observed that the parties may enter into a new plea agreement or the State may proceed to trial on the charges, including attempted armed robbery pursuant to a new indictment.

Having found that the defendant’s convictions for drug offenses that were part of a plea agreement had to be vacated on grounds of fatal defects in the indictments, the court held that the entire plea agreement and the judgments entered on it must be set aside and the matter remanded to the trial court. The court expressly noted that nothing in its opinion binds either party to the vacated pleas or sentences or restricts the State from re-indicting the defendant.

Because the trial court failed to consider evidence of the defendant’s eligibility for conditional discharge pursuant to G.S. 90-96, the court vacated the judgment and remanded for resentencing. The defendant pleaded guilty to driving while impaired and possession of LSD. According to the plea agreement, the defendant stipulated to his prior record level for each offense, and that he would be placed on probation. In exchange, the State agreed to dismiss additional drug possession charges against the defendant. Pursuant to the plea agreement, the defendant received suspended sentences. On appeal, the defendant argued that the trial court erred by granting a suspended sentence rather than a conditional discharge. The trial court had denied this request, concluding that the defendant was asking for something beyond the scope of his plea agreement. The Court of Appeals agreed with the defendant, noting that defense counsel asked for such a discharge during the plea hearing and that the conditional discharge statute was mandatory for eligible defendants. The court rejected the State’s argument that the defendant failed to present evidence that he was qualified for conditional discharge, concluding instead that the burden is on the State to establish that the defendant is not eligible for conditional discharge by proving the defendant’s prior record. Here, the trial court did not afford either party the opportunity to establish whether or not the defendant was eligible for conditional discharge. The court therefore vacated the judgment and remanded for a new sentencing hearing, directing the trial court to follow the procedure for the consideration of eligibility for conditional discharge.

State v. Khan, 366 N.C. 448 (Mar. 8, 2013)

(1) There was no ambiguity in a plea agreement with regard to whether the defendant understood that he was stipulating to an aggravating factor that could apply to both indictments. Although the Transcript of Plea Form listed only a file number for the first indictment, the document as a whole clearly referenced all of the charges and the in-court proceedings confirmed that the stipulation applied to both indictments.

Although the trial court erred by ordering the defendant to pay restitution for pecuniary losses arising from his alleged perpetration of charges in three indictments dismissed by the State pursuant to a plea agreement, the plea agreement need not be set aside. The defendant asserted that because he agreed to pay the invalid restitution as part of the plea deal, the appropriate remedy is to set aside the plea agreement. Although agreeing that the restitution order was improper, the court disagreed with the defendant that the plea agreement needed to be set aside. According to the transcript of plea, the plea arrangement provided that “‘[defendant] will plea to 7 counts of breaking and/or entering in lieu of the charges listed on the back of this transcript[,]’ and defendant checked the following box in that same section: ‘The defendant stipulates to restitution to the party(ies) in the amounts set out on ‘Restitution Worksheet, Notice And Order (Initial Sentencing)’ (AOC-CR-611).’” In a plea colloquy with the defendant the trial court specified: “And the plea bargain is that upon your plea of guilty to these seven charges the State will dismiss all other charges,” to which the defendant responded, “Yes, sir.” The court found that despite the defendant’s stipulation to restitution as provided in the State’s restitution worksheet, the defendant never agreed to pay restitution as part of the plea agreement. Rather, as described in the transcript of plea and explained during the plea colloquy, the essential and fundamental terms of the plea agreement were that the defendant would plead to seven counts of felony breaking or entering, and the State would drop the remaining charges. It concluded: “As defendant never agreed to pay restitution as part of the plea agreement, the invalidly ordered restitution was not an ‘essential or fundamental’ term of the deal. Accordingly, we hold the proper remedy here is not to set aside defendant’s entire plea agreement but to vacate the restitution order and remand for resentencing solely on the issue of restitution.”

The trial court erred by imposing a sentence inconsistent with that set out in his plea agreement without informing the defendant that he had a right to withdraw his guilty plea. The defendant was charged with multiple counts involving multiple victims and occurring between 1998 and 2015. On the third day of trial, he negotiated a plea agreement with the State, whereby he would plead guilty to a number of offenses and would receive a single, consolidated active sentence of 290 to 408 months imprisonment. Over the next weeks and prior to sentencing, the defendant wrote to the trial court asserting his innocence to some of the charges and suggesting his desire to withdraw from the plea agreement. The trial court acknowledged receipt of the letters and forwarded them to defense counsel. When the defendant later appeared for sentencing, he formally moved to withdraw his guilty plea, which was denied. Contrary to the plea agreement, the trial court entered two judgments, one for the 2015 offenses and one for the 1998 offenses, based on the different sentencing grids that applied to the crimes. Specifically, the trial court sentenced the defendant to 290 to 408 months for the 2015 offenses, and for the 1998 offenses a separate judgment sentencing the defendant to 288 to 355 months imprisonment. The trial court ordered that the sentences would run concurrently. The defendant appealed. Because the concurrent sentences imposed by the trial court differed from the single sentence agreed to by the defendant in his plea agreement, the defendant was entitled to withdraw his plea. Any change by the trial judge in the sentence agreed to in the plea agreement, even a change benefiting the defendant, requires the judge to give the defendant an opportunity to withdraw his plea.

As conceded by the State, the trial court erred by resentencing the defendant to a sentence greater than that provided for in his plea agreement without giving the defendant an opportunity to withdraw his plea, as required by G.S. 15A-1024.

The trial court did not violate G.S. 15A-1024 (withdrawal of guilty plea when sentence not in accord with plea arrangement) by sentencing the defendant in the presumptive range. Under G.S. 15A-1024, if the trial court decides to impose a sentence other than that provided in a plea agreement, the court must inform the defendant of its decision and that he or she may withdraw the plea; if the defendant chooses to withdraw, the court must grant a continuance until the next court session. Although the defendant characterized the agreement as requiring sentencing in the mitigated range, the court found that his interpretation was not supported by the plain language of the plea arrangement, which stated only that the State “shall not object to punishment in the mitigated range.”

Where a negotiated plea agreement involving several charges included a plea to a crime later held to be unconstitutional, the entire agreement must be set aside. After the jury convicted the defendant of being a sex offender on the premises of a daycare, the defendant pled guilty based on a negotiated plea arrangement to being a sex offender unlawfully within 300 feet of a daycare, failing to report a new address as a sex offender, and three counts of attaining habitual felon status. While his direct appeal was pending, the statute prohibiting a sex offender from being within 300 feet of a daycare was held to be unconstitutional. The court thus held that the defendant’s conviction for that offense must be vacated. Having determined that the defendant’s guilty plea to violating the unconstitutional statute must be vacated the essential and fundamental terms of the plea agreement became unfulfillable and that the entire plea agreement must be set aside.

A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement allowing for a sentence greater than that provided for in the applicable drug trafficking statute was entitled to have the plea agreement set aside on this basis.

Under G.S. 15A-1023(c), a trial court does not have the discretion to reject a defendant’s guilty plea when the plea is the defendant’s informed choice, is supported by a factual basis, and is the product of an agreement where the prosecutor does not make any recommendations concerning sentence.  In this case, the defendant negotiated a plea arrangement with the State where he would plead guilty to indecent liberties in exchange for the State’s dismissal of a first-degree sexual offense charge.  During the plea colloquy, the defendant stated that he was pleading guilty to prevent the child victim “from being more traumatized” but that he “did not intentionally do what they say I’ve done.”  The trial judge rejected the plea, explaining that his practice was not to accept pleas in situations where a defendant asserts factual innocence.  The defendant’s case was continued to a later court date where he entered a plea of not guilty and was convicted by a jury of first-degree sex offense and indecent liberties.  Construing language in G.S. 15A-1023(c) that a trial judge “must accept the plea” when it is the product of an informed choice and is supported by a factual basis as a statutory mandate, court first found that the defendant’s argument that the trial court erred by not accepting the plea automatically was preserved for appellate review notwithstanding the defendant’s failure to raise the argument at trial.  The court then found that because there was a factual basis for the plea and evidence that it was the product of the defendant’s informed choice, the trial judge lacked discretion to reject the plea on grounds of the defendant’s refusal to admit factual guilt and plainly erred by doing so.  The court explained: “Nothing in [G.S.] 15A-1022 or our case law announces a statutory or constitutional requirement that a defendant admit factual guilt in order to enter a guilty plea.”  The court remanded the case to the trial court with instructions to the district attorney to renew the plea offer.

Justice Morgan, joined by Justice Newby, dissented and expressed the view that the defendant’s argument was not properly preserved for appellate review.  In Justice Morgan’s view, the trial judge is “the determiner” of whether there is a factual basis for a plea and whether it is the product of informed choice.  While G.S. 15A-1023(c) mandates that a plea be accepted when those conditions are satisfied, the majority erred by substituting its judgement on those conditions for the trial court’s and by considering the defendant’s argument on appeal when the defendant had failed to object in the trial court.

In a per curiam decision in a case decided under the Antiterrorism and Effective Death Penalty Act of 1996, the Court held that no decision from the Court clearly establishes that a state court must impose a lower, originally expected sentence when—after the defendant has pled guilty—the State is allowed to amend the criminal complaint, subjecting the defendant to a higher sentence, and the defendant is allowed to withdraw his plea but chooses to enter into a new plea agreement based on the amended complaint. A California court permitted the State to amend a criminal complaint to which the defendant had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years, 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted the defendant to withdraw his guilty plea. The defendant then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years. The Ninth Circuit held that the defendant was entitled to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended. The Court reversed. It began by assuming that the State violated the Constitution when it moved to amend the complaint. But it went on to conclude: “we still are unable to find in Supreme Court precedent that clearly established federal law demanding specific performance as a remedy. To the contrary, no holdin[g] of this Court requires the remedy of specific performance under the circumstances present here.” (quotation omitted).

State v. Ross, 369 N.C. 393 (Dec. 21, 2016)

Reversing the Court of Appeals, the court held that the defendant’s plea was knowing and involuntary. The Court of Appeals had held that because the defendant conditioned his plea on the appealability of an issue that was not appealable, the plea was not knowing and involuntary. The court however concluded that the defendant’s plea was not conditionally entered on such a right of appeal. Thus, the terms and conditions of the plea agreement did not attempt to preserve the right to appellate review of a non-appealable matter.

State v. Khan, 366 N.C. 448 (Mar. 8, 2013)

The trial court properly followed the procedure in G.S. 15A-1022.1 for accepting an admission of an aggravating factor.

With one judge concurring in the result only, the court held that the trial court did not commit prejudicial error when, in connection with a plea, it misinformed the defendant of the maximum sentence. Pursuant to an agreement, the defendant pleaded guilty to trafficking in heroin and possession of a controlled substance with intent to sell. The trial court correctly informed the defendant of the maximum punishment for the trafficking charge but erroneously informed the defendant that the possession with intent charge carried a maximum punishment of 24 months (the correct maximum was 39 months). The trial court also told the defendant that he faced a total potential maximum punishment of 582 months, when the correct total was 597 months. Both errors were repeated on the transcript of plea form. The trial court accepted the defendant’s plea, consolidated the convictions and sentenced the defendant to 225 to 279 months. The defendant argued that the trial court violated G.S. 15A-1022(a)(6), providing that a trial court may not accept a guilty plea without informing the defendant of the maximum possible sentence for the charge. The court noted that decisions have rejected a ritualistic or strict approach to the statutory requirement and have required prejudice before a plea will be set aside. Here, the defendant cannot show prejudice. The court noted that the defendant faced no additional time of imprisonment because of the error; put another way, the trial court’s error did not affect the maximum punishment that the defendant received as a result of the plea. Furthermore, the defendant failed to argue how the result would have been different had he been correctly informed of the maximum punishment. The court stated: “It would be a miscarriage of justice for us to accept that Defendant would have backed out of his agreement if Defendant knew that the total potential maximum punishment was 15 months longer on a charge that was being consolidated into his trafficking conviction.”

[Author’s Note: The defendant does not appear to have made the constitutional argument that the plea was not knowing, voluntary and intelligent; constitutional errors are presumed to be prejudicial unless the State proves them to be harmless beyond a reasonable doubt.] 

The court rejected the defendant’s argument that his plea was not knowing and voluntary because the trial court erroneously advised him that he had the right to appeal a denial of the defendant’s pro se motion to dismiss. The motion to dismiss was based on lack of subject matter and personal jurisdiction and asserted as its basis the fact that the defendant was a Sovereign Citizen. The defendant agreed to plead guilty pursuant to a plea agreement. The trial court advised him of the maximum possible punishment and the defendant stated that he entered the plea of his own free will. The trial court told the defendant that he would have the right to appeal the ruling denying the pro se motion to dismiss. The court agreed with the defendant that the trial court erroneously advised him that he had the right to appeal the denial of his pro se motion to dismiss after entering his plea. However, the court found that any error was harmless, noting that the defendant’s motion to dismiss failed to present a coherent, legally recognized challenge the trial court’s jurisdiction.

The trial court erred by sentencing the defendant as a habitual felon where the defendant stipulated to his habitual felon status but did not enter a plea to that effect. The trial court’s colloquy with the defendant failed to comply with G.S. 15A-1022.

Based on the trial court’s colloquy with the defendant, the court rejected the defendant’s challenge to the knowing and voluntary nature of his plea. The defendant had argued that the trial court did not adequately explain that judgment may be entered on his plea to assault on a handicapped person if he did not successfully complete probation on other charges.

The defendant’s plea was not constitutionally valid where the trial judge misinformed the defendant of the maximum sentence he would receive. The trial court told the defendant that the maximum possible sentence would be 168 months' imprisonment when the maximum sentence (and the maximum ultimately imposed) was 171 months. The court rejected the State’s argument that the defendant was not prejudiced by this error.

The court rejected the defendant’s argument that his guilty plea was not knowing and voluntary because it was the result of unreasonable and excessive pressure by the State and the trial court. The defendant asserted that the trial court pressured him to accept the plea during a 15 minute recess, denying him the time he needed to reflect on the decision. However, the plea offer was made some days earlier and the trial judge engaged in an extensive colloquy with the defendant, beyond statutory mandates, to ensure that the plea was knowing and voluntary.

The defendant’s plea to habitual felon was valid based on the totality of the circumstances. Although the trial court informed the defendant that the plea would elevate punishment for the underlying offenses from Class H to Class C, it did not inform the defendant of the minimum and maximum sentences associated with habitual felon status.

The inclusion of an incorrect file number on the caption of a transcript of plea was a clerical error that did not invalidate a plea to obtaining property by false pretenses where the plea was taken in compliance with G.S. 15A-1022 and the body of the form referenced the correct file number. The incorrect file number related to an armed robbery charge against the defendant.

The defendant, who had entered an Alford plea, was not prejudiced by the trial judge’s failure to inform him of his right to remain silent, the maximum possible sentence, and that if he pleaded guilty he would be treated as guilty even if he did not admit guilt. (In addition to the trial court’s failure to verbally inform the defendant of the maximum sentence, a worksheet attached to the signed Transcript of Plea form incorrectly stated the maximum sentence as 89 months; the correct maximum was 98 months). The court further held that based on the questions that were posed, the trial judge properly determined that the plea was a product of the defendant’s informed choice.

Following Bare (discussed above).

State v. Bare, 197 N.C. App. 461 (June 16, 2009)

When taking a plea, a judge is not required to inform a defendant of possible imposition of sex offender satellite-based monitoring (SBM). Such a statement is not required by G.S. 15A-1022. Nor is SBM a direct consequence of a plea.

The prosecutor’s offer of a package deal in which the defendant’s wife would get a plea deal if the defendant pleaded guilty did not constitute improper pressure within the meaning of G.S. 15A-1021(b). Although special care may be required to determine the voluntariness of package deal pleas, the court’s inquiry into voluntariness was sufficient in this case.

State v. Wagoner, 199 N.C. App. 321 (Sept. 1, 2009) aff’d, 364 N.C. 422 (Oct 8 2010)

In a case in which there was a dissenting opinion, the court rejected the defendant’s argument that the trial court erred in imposing SBM when SBM was not addressed in the defendant’s plea agreement with the State.

State v. Bare, 197 N.C. App. 461 (June 16, 2009)

When taking a plea, a judge is not required to inform a defendant of possible imposition of sex offender SBM. Such a statement is not required by G.S. 15A-1022. Nor is SBM a direct consequence of a plea.

Although the trial court erred by ordering the defendant to pay restitution for pecuniary losses arising from his alleged perpetration of charges in three indictments dismissed by the State pursuant to a plea agreement, the plea agreement need not be set aside. The defendant asserted that because he agreed to pay the invalid restitution as part of the plea deal, the appropriate remedy is to set aside the plea agreement. Although agreeing that the restitution order was improper, the court disagreed with the defendant that the plea agreement needed to be set aside. According to the transcript of plea, the plea arrangement provided that “‘[defendant] will plea to 7 counts of breaking and/or entering in lieu of the charges listed on the back of this transcript[,]’ and defendant checked the following box in that same section: ‘The defendant stipulates to restitution to the party(ies) in the amounts set out on ‘Restitution Worksheet, Notice And Order (Initial Sentencing)’ (AOC-CR-611).’” In a plea colloquy with the defendant the trial court specified: “And the plea bargain is that upon your plea of guilty to these seven charges the State will dismiss all other charges,” to which the defendant responded, “Yes, sir.” The court found that despite the defendant’s stipulation to restitution as provided in the State’s restitution worksheet, the defendant never agreed to pay restitution as part of the plea agreement. Rather, as described in the transcript of plea and explained during the plea colloquy, the essential and fundamental terms of the plea agreement were that the defendant would plead to seven counts of felony breaking or entering, and the State would drop the remaining charges. It concluded: “As defendant never agreed to pay restitution as part of the plea agreement, the invalidly ordered restitution was not an ‘essential or fundamental’ term of the deal. Accordingly, we hold the proper remedy here is not to set aside defendant’s entire plea agreement but to vacate the restitution order and remand for resentencing solely on the issue of restitution.”

State v. Thompson, ___ N.C. App. ___, 809 S.E.2d 340 (Jan. 2, 2018) vacated on other grounds, ___ N.C. ___, 822 S.E.2d 616 (Feb 1 2019)

Where the record was inconsistent and unclear as to whether the defendant pled guilty to felony possession of marijuana, the court vacated a judgment for that offense and remanded, directing the trial court to “take the necessary steps to resolve the discrepancy between the transcript of plea and the written judgment.” The court rejected the defendant’s argument that the issue was simply a clerical error, finding: “on the basis of the record as presently constituted, it is not possible to determine whether judgment was properly entered on the charge of felony possession of marijuana.” A dissenting judge asserted that judgment should “simply be arrested as to [the possession] charge, or the matter should be remanded for correction of the clerical error.”

In a rape case, any error made by the trial court regarding the maximum possible sentence did not entitle the defendant to relief. The trial court’s statement was made in connection with noting for the record—on defense counsel’s request—that the defendant had rejected a plea offer by the State. The court rejected the defendant’s argument that the provisions of G.S. 15A-1022 should apply, noting that statute only is applicable when the defendant actually pleads guilty; a trial court is not required to make an inquiry into a defendant’s decision not to plead guilty.

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