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State v. Whitehurst

Court of Appeals of North Carolina

May 2, 2017

STATE OF NORTH CAROLINA, Plaintiff,
v.
ROCKY DARYL WHITEHURST, JR., Defendant.

          Heard in the Court of Appeals 3 April 2017.

         Appeal by defendant from judgment entered 5 August 2015 by Judge J. Carlton Cole in Pasquotank County Superior Court Pasquotank County, No. 15 CRS 144.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith Clayton, for the State.

          Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.

          ZACHARY, Judge.

         Rocky Daryl Whitehurst, Jr. (defendant) appeals from the judgment entered upon his entry of a plea of guilty to the offense of obtaining property by false pretenses. On appeal, defendant argues that the trial court erred by denying his motion to withdraw his guilty plea. We conclude that the trial court did not err by denying his motion. Defendant also argues, and the State agrees, that the trial court erred by ordering defendant to pay $200 in restitution when no evidentiary support was offered for the amount of restitution. We conclude that the trial court erred in entering its restitution award.

         I. Background

         On 9 March 2015, the Grand Jury for Pasquotank County returned an indictment charging defendant with obtaining property by false pretenses and possession of stolen property. Defendant was arrested for these offenses on 24 April 2015, and was placed in custody. On 8 June 2015, defendant appeared before the trial court. Defendant asked to have counsel appointed to represent him on the instant charges, and expressed a wish to resolve the case on that day if possible. Accordingly, the trial court appointed counsel for defendant and held the case open.

         Later that day, defendant again appeared before the court. Defendant's attorney informed the trial court that defendant would plead guilty to one count of obtaining property by false pretenses, pursuant to a plea arrangement. The trial court asked defendant the questions on the plea transcript form, and defendant answered under oath. Defendant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 37-39, 27 L.Ed.2d 162, 171-72 (1970), which held that a defendant may enter a guilty plea containing a protestation of innocence when the defendant intelligently concludes that a guilty plea is in his best interest. Defendant acknowledged that under the terms of the plea arrangement he would plead guilty to one count of obtaining property by false pretenses and receive a probationary sentence, and that the State would dismiss the charge of possession of stolen property. After the plea transcript was completed, the prosecutor summarized the factual basis for the charge against defendant. Defendant did not object to the prosecutor's summary of the factual support for the charges. Prior to sentencing, the trial court adjourned for the day. The next day, 9 June 2015, defendant appeared in court for sentencing. His counsel asked for a continuance and the trial court continued defendant's sentencing until 5 August 2015.

         On 3 August 2015, defendant filed a motion asking the trial court to allow him to withdraw his plea of guilty. The trial court conducted a sentencing proceeding on 5 August 2015, at which defendant's counsel asked the court to set aside defendant's plea. After hearing from defense counsel and the State, the trial court denied defendant's motion to withdraw his plea of guilty, sentenced defendant to a suspended term of 8 to 19 months' imprisonment, and placed defendant on 36 months of supervised probation. Defendant appealed to this Court.

         II. Denial of Defendant's Motion to Withdraw Guilty Plea

         A. Standard of Review

         "In reviewing a trial court's denial of a defendant's motion to withdraw a guilty plea made before sentencing, 'the appellate court does not apply an abuse of discretion standard, but instead makes an independent review of the record.' " State v. Robinson, 177 N.C.App. 225, 229, 628 S.E.2d 252, 254 (2006) (quoting State v. Marshburn, 109 N.C.App. 105, 108, 425 S.E.2d 715, 718 (1993)). "There is no absolute right to withdraw a plea of guilty, however, a criminal defendant seeking to withdraw such a plea before sentencing is 'generally accorded that right if he can show any fair and just reason.' " Marshburn, 109 N.C.App. at 107-08, 425 S.E.2d at 717 (quoting State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990)). "The defendant has the burden of showing that his motion to withdraw is supported by some fair and just reason." Marshburn at at 108, 425 S.E.2d at 717 (internal quotation omitted). "There is no established rule in North Carolina governing the standard by which a judge is to decide a motion to withdraw a plea of guilty prior to sentencing." Handy, 326 N.C. at 538, 391 S.E.2d at 162. However:

[s]ome of the factors which favor withdrawal include whether the defendant has asserted legal innocence, the strength of the State's proffer of evidence, the length of time between entry of the guilty plea and the desire to change it, and whether the accused has had competent counsel at all relevant times. Misunderstanding of the consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for consideration.

Handy at 539, 391 S.E.2d at 163.

         B. ...


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