Opinion
No. COA14–472.
02-17-2015
STATE of North Carolina v. Malique Ishmael O'NEIL.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas C. Woomer–Deters, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas C. Woomer–Deters, for defendant-appellant.
CALABRIA, Judge.
Malique Ishmael O'Neil (“defendant”) appeals from the trial court's judgment entered upon his plea of guilty to felony larceny. We affirm.
I. Background
On 1 January 2013, defendant attended a party at the home of Taylor Plemmons (“Plemmons”). During the party, Plemmons observed defendant with her laptop computer. The next morning, Plemmons discovered the laptop was missing. Other individuals who attended the party informed law enforcement that defendant had taken the laptop. The laptop was recovered and returned to Plemmons, but her software had been deleted.
On 1 April 2013, defendant was charged by information with felony larceny in McDowell County District Court. On the advice of his appointed counsel, defendant entered into a plea arrangement whereby he would plead guilty to felony larceny and in exchange defendant would be admitted into the first offender program, which would defer prosecution for 12 months (“the first offender agreement”). The trial court accepted defendant's guilty plea and approved the first offender agreement. Pursuant to N.C. Gen.Stat. § 15A–1341 (a1), defendant was placed on supervised probation for 12 months. Defendant agreed to perform 72 hours of community service and pay Plemmons $2,148.74 in restitution.
On 31 July 2013, defendant filed a “motion for appropriate relief” (“MAR”) seeking to have his guilty plea set aside because he did not realize at the time of his plea that the plea would disqualify him from playing high school football. The MAR was heard on 4 November 2013, and at the conclusion of the hearing the trial court denied the motion in open court. The State then prayed judgment against defendant because he had failed to comply with the terms of the first offender agreement. The trial court sentenced defendant to a minimum of 5 months to a maximum of 15 months in the North Carolina Division of Adult Correction. That sentence was suspended and defendant was placed on supervised probation for 24 months. Defendant appeals.
II. Motion to Withdraw Guilty Plea
Defendant argues that the trial court erred in denying his MAR because there were fair and just reasons for allowing him to “set aside” his plea. We disagree.
As an initial matter, we note that although defendant styled his motion as a “motion for appropriate relief,” his motion was made prior to the imposition of his sentence. Consequently, defendant's MAR was, in actuality, a motion to withdraw his guilty plea. See State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (“A motion for appropriate relief is not proper where made prior to sentencing when there is no jury verdict.”). As the HandyCourt explained,
A motion to withdraw a guilty plea made before sentencing is significantly different from a post-judgment or collateral attack on such a plea, which would be by a motion for appropriate relief. A fundamental distinction exists between situations in which a defendant pleads guilty but changes his mind and seeks to withdraw the plea before sentencing and in which a defendant only attempts to withdraw the guilty plea after he hears and is dissatisfied with the sentence. This distinction creates the need for differing legal standards for adjudicating such motions to withdraw guilty pleas, a distinction recognized by most courts.
Id.(citation omitted). Thus, we review defendant's motion under the standard of review established by our Courts for motions to withdraw a guilty plea prior to sentencing.
When reviewing a decision of the trial court to deny defendant's motion to withdraw, the appellate court does not apply an abuse of discretion standard, but instead makes an “independent review of the record.” Id.at 539, 391 S.E.2d at 163. Thus, “the appellate court must itself determine, considering the reasons given by the defendant and any prejudice to the State, if it would be fair and just to allow the motion to withdraw.” State v. Marshburn, 109 N.C.App. 105, 108, 425 S.E.2d 715, 718 (1993). Our Supreme Court has established the following non-exclusive list of factors to consider when determining whether to allow the withdrawal of a guilty plea:
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, 326 N.C. at 539, 391 S.E.2d at 163 (internal citation omitted).
In the instant case, defendant argues that his motion to withdraw should have been granted because the State's proffer of evidence was weak, the plea was entered hastily, and he did not fully understand the consequences of his plea. However, based upon our review of the record, we cannot conclude that the trial court erred in determining that these reasons did not warrant allowing withdrawal of the plea.
First, defendant never asserted that he was not guilty of larceny of Plemmons's laptop. Moreover, although defendant pled guilty on 1 April 2013, he did not file a motion to withdraw the plea until 31 July 2013, almost four months later. “This Court has placed heavy reliance on the length of time between a defendant's entry of the guilty plea and motion to withdraw the plea.” State v. Robinson, 177 N.C.App. 225, 299, 628 S.E.2d 252, 255 (2006). In Robinson,this Court held that the defendant's delay of more than three months in filing his motion to withdraw his plea, a period similar to the delay in the instant case, supported the denial of the motion. Id.at 230, 628 S.E.2d at 255.
Additionally, defendant's motion relied heavily on his contention that he did not understand that his plea would preclude him from playing football at his high school. However, “to be relevant, defendant must show that the misunderstanding related to the direct consequencesof his plea, not a misunderstanding regarding the effect of the plea on some collateral matter.” Marshburn, 109 N.C.App. at 109, 425 S.E.2d at 718. Defendant's ineligibility to play football was merely a collateral consequence of his guilty plea, and thus, we cannot consider it as part of our analysis. Finally, defendant was represented by counsel, and during his plea colloquy he affirmatively represented to the trial court that he was satisfied with his attorney's services. In light of these factors, the trial court properly denied defendant's motion to withdraw his guilty plea. This argument is overruled.
III. Factual Basis for Plea
Defendant also argues that the trial court erred in accepting his guilty plea because the State presented an inadequate factual basis to support a conviction for felony larceny. However, as conceded by defendant, his guilty plea precludes appellate review of that issue. See State v. Keller, 198 N.C.App. 639, 641, 680 S.E.2d 212, 213 (2009). Nevertheless, defendant has filed a petition for writ of certiorariwith this Court seeking appellate review of the factual basis for his plea. In our discretion, we grant defendant's petition. See State v. Demaio, 216 N.C.App. 558, 563, 716 S.E.2d 863, 866 (2011) (granting certiorarito review whether the trial court erred in accepting the defendant's guilty plea because of an inadequate factual basis); State v. Keller, 198 N.C.App. 639, 642, 680 S.E.2d 212, 214 (2009) (granting certiorarito review the factual basis of a guilty plea “[d]ue to the fundamental nature of the errors asserted by [the] defendant”).
“The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea.” N.C. Gen.Stat. § 15A–1022(c) (2013). The determination that there is a factual basis to support a plea may be based upon “[a] statement of the facts by the prosecutor.” Id.
“Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony.” N.C. Gen.Stat. § 14–72(a) (2013). In the instant case, defendant contends that the State failed to present a sufficient factual basis to allow the trial court to determine that Plemmons's laptop had a value of more than $1,000. However, during defendant's plea hearing, the State presented facts that Plemmons possessed “unique and special” software on her laptop, and that she paid $2,148.74 to reload the software back onto her laptop after it was returned to her. Accordingly, defendant agreed to pay that amount as restitution in the first offender agreement. The prosecutor's statement was sufficient to establish that the value of Plemmons's laptop with her software loaded onto it exceeded $1,000. Therefore, there was a factual basis to support defendant's guilty plea to felony larceny. This argument is overruled.
IV. Conclusion
Defendant failed to establish that there were fair and just reasons for allowing him to withdraw his guilty plea. Moreover, the State presented an adequate factual basis to support defendant's plea. The trial court's judgment, entered upon defendant's plea, is affirmed.
Affirmed.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 4 November 2013 by Judge Laura A. Powell in McDowell County District Court. Heard in the Court of Appeals 24 September 2014.