On certiorari to review order of Lee, Judge, entered 24 March 1981 denying defendant's motion for appropriate relief. The motion was heard at the 12 January 1981 Criminal Session of Cumberland Superior Court.
Britt, Justice. Justice Exum dissenting. Justices Carlton and Mitchell join in this dissent.
Although defendant has listed 27 assignments of error based on 23 exceptions, he states that the sole question presented is whether his guilty plea was "unintelligent, unknowing, involuntary, and the result of ineffective assistance of counsel." All of his exceptions relate to certain findings of fact and the conclusions of law made by Judge Lee.
First, we consider the law governing this appeal. G.S. 15A-1415 lists the grounds for appropriate relief which may be asserted by a defendant after verdict and without limitation as to time. Clearly, defendant bases his motion on G.S. 15A-1415(b)(3), contending that his "conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina." G.S. 15A-1420 sets out the procedure on motions for appropriate relief and subsection (c)(5) provides
If an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion.
Prior to 1 July 1978, the effective date of Chapter 711 of the 1977 Session Laws which includes the enactments now codified as G.S. 15A-1415 and 1420, the relief which defendant seeks in this cause would have been by virtue of former G.S. 15-217 et seq.*fn4, often referred to as the North Carolina postconviction hearing act. In reviewing orders entered pursuant to that act, this court held that the findings of fact of the trial judge were binding upon
the petitioner if they were supported by evidence. See Branch v. State, 269 N.C. 642, 153 S.E.2d 343 (1967); State v. Graves, 251 N.C. 550, 112 S.E.2d 85 (1960); and Miller v. State, 237 N.C. 29, 74 S.E.2d 513, cert. denied, 345 U.S. 930 (1953).
We now apply the same test in reviewing findings of fact made by the trial court pursuant to hearings on motions for appropriate relief. This test is applicable even though the evidence is conflicting, see State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), and notwithstanding defendant's testimony at the hearing to the contrary, see State v. Bullock, 268 N.C. 560, 151 S.E.2d 9 (1966).
Our inquiry therefore, is to determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.
After considering each of defendant's exceptions to the findings of fact, and the evidence presented at the hearing, we conclude that there is no merit in any of them. We will address the exceptions seriatim.
Exception No. 1 is to that part of finding (7) in which the trial court found that Attorney Nimocks conferred with Randy Gregory, Assistant District Attorney, who was assigned to prosecute this case, and that defendant was advised by Nimocks of his right to plead not guilty and to have a jury trial. This finding is supported by Nimocks' testimony at the hearing (T p 261) and Nimocks' affidavit (R pp 48-49).
Exception No. 2 is to that part of finding (8) that Nimocks was employed by defendant for the purpose of entering pleas of guilty to the armed robbery charges in this case and in the two other armed robbery cases for a fee of $1,500.00; and that Nimocks advised that they should seek to enter a plea of guilty to one count of armed robbery, offer defendant as a state's witness, and seek to have the other two counts against him dismissed. This finding is supported by Nimocks' testimony (T pp 251-354, particularly pages 254, 259, 261 and 263).
Exception No. 3 is to that part of finding (10) indicated with brackets as follows:
(10) That an Application for Writ of Habeas Corpus was filed herein on September 19, 1977, signed by the petitioner and by John Taylor, law partner of Stephen H. Nimocks. [That in said document the Petitioner, John Finton Stevens, alleged that he had made a confession to Officers Byrd and Conerly, that he desired to plead guilty to one count of armed robbery, that he desired to testify truthfully for the State in all three cases, that he understood that he could be sentenced to life imprisonment on a plea of guilty to one count of armed robbery and that he fully understood that the State would no doubt seek a lengthy active sentence, and that notwithstanding all of that he still desired to plead guilty.]
This finding is supported by the following paragraphs from defendant's signed application for a writ of habeas corpus (R pp 7-8):
That your petitioner has volunteered and desires to testify in behalf of the State of North Carolina and that he will truthfully testify in behalf of the State as to all facts and matters surrounding the charges which have been brought against him;
That petitioner has made a confession to Officers Conerly and Byrd and that said confession was made truthfully and voluntarily without any threat or promise of reward to your petitioner;
That your petitioner is informed and knows that the maximum sentence he can receive from his plea of guilty to one count of armed robbery is life imprisonment and that your petitioner is informed and believes that the District Attorney for the Twelfth Judicial District of the State of North Carolina would in all probability now argue that he would serve a lengthy active sentence and that in spite of this it is his desire still to plead guilty and to testify in behalf of the state; . . . .
Exception No. 4 is to that part of finding (12) indicated with brackets as follows:
(12) That Petitioner appeared in this Court with his attorney, Stephen H. Nimocks, on October 10, 1977, before the Honorable Giles R. Clark, Judge Presiding, in the morning session of that court. That Randy Gregory, Assistant District Attorney, was present representing the State and that the Courtroom Clerk was Mrs. Linda Nichols, now Mrs. Linda Kerik, Assistant Clerk of Superior Court. [That Petitioner appeared for the purpose of entering a plea of guilty to the charges in this case, and that a plea of guilty was tendered to the Court by Petitioner through his counsel. That Transcript of Plea was taken and that Judge Clark examined the Petitioner personally with regard to the questions appearing on the Transcript of Plea. That Petitioner would not sign that transcript, that Judge Clark would not sign that transcript, and because of questions raised by the Petitioner as to questions nine and ten on the transcript] Judge Clark ordered that that plea and that transcript be stricken and that Mrs. Nichols wrote or caused to written across the face of said transcript the word "Stricken."
This finding is supported by the testimony of defendant (T pp 33-34); Mrs. Kerik, an assistant clerk of superior court who had been present (T pp 240-242); Randy Gregory (T p 114); and Nimocks (T pp 265-268). See also First Transcript of Plea, October 10, 1977 (R p 14).
Exception No. 4 is to that part of finding (13) indicated with brackets as follows:
(13) [That later on the same day, October 10, 1977, in the afternoon session, Petitioner and his attorney, Mr. Stephen H. Nimocks, and Mr. Gregory for the State appeared before Judge Clark again and tendered to the Court a plea of guilty. That Judge Clark personally examined Petitioner with regard to the questions appearing on the Transcript of Plea. That the Petitioner stated to Judge Clark that he was, in fact, guilty and that at no time during that session did he state to Judge Clark that he was not guilty. That this transcript was signed by Petitioner and sworn to by Petitioner in the presence of Mrs. Linda Nichols, but that it was not signed by Judge Clark.]
This finding is supported by the transcript of plea itself (R p 16) and the testimony of Mrs. Kerik (T pp 241-243).
Exception No. 6 is to that part of finding (15) "that evidence was presented by the Petitioner on October 31, 1977, and thereafter that prayer for judgment was continued until later in that session, to wit, until November 4, 1977." This finding is supported by the "Judgment or other Disposition" entered by Judge Clark on 31 October 1977 (R p 37).
Exception No. 7 is to that part of finding (20) "that in that letter Petitioner did not express any dissatisfaction with the legal services he had received from Nimocks." Finding of fact (20) relates to a letter which defendant allegedly wrote Nimocks from prison on or about 17 November 1977. This letter ...