in the Court of Appeals 12 February 2019.
by Defendant from judgment entered 13 February 2018 by Judge
Michael D. Duncan in Wilkes County, No. 17 CRS 050494-95, 17
CRS 000434 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Rory Agan, for the State.
Adelle Jones for defendant-appellant.
defendant moves to withdraw his plea of guilty or no contest
before sentencing but after he has been informed of his
sentence by the presiding judge, such motion need only be
granted where a trial court's denial would result in a
manifest injustice. Here, Defendant, Benjamin Curtis
Lankford, moved to withdraw his plea of no contest more than
two months after he was told his sentence by the trial court.
The trial court's denial of Defendant's motion did
not result in a manifest injustice, and is affirmed.
was indicted for fleeing to elude arrest, speeding, driving
left of center, driving while license revoked, and attaining
the status of habitual felon. On 3 February 2018, Defendant
entered a plea of no contest to the charges of fleeing to
elude arrest, driving while license revoked, and attaining
habitual felon status. Nine other charges were dismissed in
exchange for his plea. At this hearing, Defendant was advised
that he would "be sentenced as a habitual felon at a
Class D, prior record level VI, at the lowest end of the
mitigated range not less than 77 months nor more than 105
months in the North Carolina Department of Adult
Corrections." Defendant was granted pretrial release,
and the matter was continued until 2 April 2018, when
judgment was to be entered. Defendant failed to appear for
his scheduled sentencing hearing, and an order for his arrest
was issued on 9 April 2018.
May 2018, Defendant appeared before the Superior Court on a
motion to withdraw his no contest plea. Defendant explained
that he believed his plea agreement included a provision that
allowed him to amend his plea "if there was any evidence
that was brought forth of this case[, ]" and that he
wished to withdraw his plea. Defendant also told the trial
court, "I'm not guilty of these charges that
they've charged me with[.]" Defendant's counsel
asked to respond to his client's statements and argued
"the State could prove absolutely and without a doubt in
[trial counsel's] opinion" that Defendant was guilty
as charged. Defendant's counsel explained that Defendant
was not claiming innocence regarding the charges he had pled
to, but was "talking about the possession of a firearm
by a felon [charge], one of the cases that would be dismissed
[under his plea agreement]." Counsel further expressed
that he had advised Defendant against filing a motion to
withdraw his plea, and that, if the trial court granted the
motion, counsel would need to withdraw his representation
because there would be "a conflict that couldn't
never [sic] be solved."
trial court found that Defendant had received competent legal
representation and had not been coerced into entering his
original plea of no contest. Subsequently, the trial court
concluded there was no fair and just reason that Defendant
should be permitted to withdraw his plea and denied
Defendant's motion to do so. The trial court entered
judgment upon the plea of no contest and sentenced Defendant,
as previously announced, to an active term of 77 to 105
only argument on appeal, Defendant argues the trial court
erred in denying his motion to withdraw his plea of no
contest. Defendant contends the trial court was required to
grant his motion because he presented a fair and just reason
for withdrawal and the State did not allege or show any
substantial prejudice which would have been caused by the
there is no absolute right to withdrawal of a guilty plea,
withdrawal motions made prior to sentencing, and especially
at a very early stage of the proceedings, should be granted
with liberality[.]" State v. Handy, 326 N.C.
532, 537, 391 S.E.2d 159, 161-62 (1990) (internal citations
In a case where the defendant seeks to withdraw his guilty
plea before sentence, he is generally accorded that right if
he can show any fair and just reason. On the other hand,
where the guilty plea is sought to be withdrawn by the
defendant after ...