in the Court of Appeals 3 April 2017.
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.
Smith & Norris, P.A., by Kirby H. Smith, III, for
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
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
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.
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.
Denial of Defendant's Motion to Withdraw Guilty Plea
Standard of Review
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.