State v. Murphy, ___ N.C. App. __, 819 S.E.2d 604 (Aug. 21, 2018)

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.”