State v. Chery, 203 N.C. App. 310 (Apr. 6, 2010)

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.