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State v. Marsh

Court of Appeals of North Carolina

June 4, 2019

STATE OF NORTH CAROLINA
v.
BOYD DOUGLAS MARSH, Defendant.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by Defendant from judgment entered 29 November 2017 by Judge Claire V. Hill in Cumberland County No. 15CRS063852 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott Stroud, for the State.

          Kimberly P. Hoppin for the Defendant.

          DILLON, Judge.

         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 proceedings.

         I. Background

         Defendant 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.

         On the 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.

         Over 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 Defendant's attorney.

         Several 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.

         Defendant gave oral notice of appeal in open court.[1]

         II. Analysis

         Defendant 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 ...


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