in the Court of Appeals 13 March 2019.
by Defendant from judgment entered 29 November 2017 by Judge
Claire V. Hill in Cumberland County No. 15CRS063852 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Scott Stroud, for the State.
Kimberly P. Hoppin for the Defendant.
Boyd Douglas Marsh appeals the trial court's denial of
his motion to withdraw his guilty plea. Alternatively, he
appeals the sentence imposed by the trial court, alleging
that it was inconsistent with the sentence outlined in his
plea agreement with the State. After careful review, we
vacate the trial court's judgment and remand for further
was charged with multiple counts of rape, kidnapping, and a
number of related offenses, involving multiple victims and
occurring between 1998 and 2015. In March 2017, Defendant was
tried by a jury.
third day of trial, Defendant negotiated a plea agreement
with the State whereby he pleaded guilty to a number of
offenses. Based on the plea agreement, Defendant would
receive a single, consolidated active sentence of two hundred
ninety (290) to four hundred eight (408) months imprisonment.
the next four weeks, and prior to sentencing, Defendant wrote
two letters to the trial court. In them, he proclaimed his
innocence to some of the charges and suggested his desire to
withdraw from his plea agreement. The trial court
acknowledged receipt of the letters and forwarded them to
months later, in November 2017, Defendant appeared before the
trial court for sentencing. During the hearing, he formally
moved to withdraw his guilty plea. The trial court denied
Defendant's motion. The trial court, then, proceeded with
sentencing. Though the plea agreement called for a single,
consolidated judgment imposing a single sentence, the trial
court entered two judgments, one for the 2015
offenses and one for the 1998 offenses, based on the fact
that the sentencing grid in use in 1998 was different from
the grid in use in 2015. Specifically, the trial court
entered a judgment, sentencing Defendant to a term of two
hundred ninety (290) to four hundred eight (408) months for
the 2015 offenses, a sentence which matched the sentence
Defendant agreed to in his plea agreement with the State. And
for the 1998 offenses, the trial court entered a separate
judgment with a slightly shorter sentence of two hundred
eighty-eight (288) to three hundred fifty-five (355) months
imprisonment. The trial court did, though, order that the two
sentences would run concurrently, such that Defendant would
not actually serve any longer than contemplated in his plea
agreement with the State.
gave oral notice of appeal in open court.
makes two arguments on appeal. First, Defendant argues that
the trial court erred by denying his motion to withdraw his
guilty plea prior to being sentenced. Defendant made it known
to the trial court quickly that he did not like the plea
agreement into which he had entered. But his attorney did not
formally move on his behalf to withdraw the plea until much
later. Our Supreme Court has instructed that a
defendant's burden is low when his motion is made soon
after entering his plea. See State v. Handy, 326
N.C. 532, 539, 391 S.E.2d 159, 162-63 (1990). In ...