Opinion
No. COA10-1468
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgment dated 4 May 2010 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 27 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State. Lisa Skinner Lefler for Defendant.
Halifax County Nos. 07 CRS 50954, 56290-91.
On 16 April 2007, Defendant Joshua Lee Watson ("Watson") was indicted on one count of felony fleeing to elude arrest. On that same day, Watson was also indicted for having attained the status of habitual felon. On 10 December 2007, Watson was indicted on one count each of possession of cocaine with intent to sell or deliver, felony possession of cocaine, possession of marijuana with intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, and maintaining a dwelling used for keeping and selling controlled substances.
At a 4 May 2010 hearing in Halifax County Superior Court, the Honorable Alma L. Hinton presiding, pursuant to a plea agreement, Watson pled guilty to the charges of possession of cocaine with intent to sell or distribute, maintaining a dwelling used for keeping and selling controlled substances, and felony speeding to elude arrest. By the terms of the plea agreement, Watson agreed to plead guilty to the foregoing charges and agreed to be sentenced as an habitual felon in exchange for the State's agreement to dismiss the remaining charges and to recommend "that the charges be consolidated for one judgment and that [Watson] be sentenced at the low end of the mitigated range of sentencing for his level."
Following the usual plea colloquy, the trial court found that there was a factual basis for the entry of Watson's guilty plea and thereupon accepted the plea. The trial court then accepted the State's recommendations to consolidate the charges for judgment and to find mitigating factors. However, the court declined to accept the State's recommendation to sentence Watson "at the low end of the mitigated range" and stated that the court instead would sentence Watson in the presumptive range. Following a brief discussion between trial counsel and the court, the court sentenced Watson to 125 to 159 months imprisonment — a sentence that was in the presumptive range — and closed the proceedings. On 6 May 2010, Watson returned to the trial court to enter oral notice of appeal.
Initially, we note that because Watson pled guilty to the charges and was sentenced within the presumptive range, Watson is not entitled to appellate review of this matter under section 15A-1444 of our General Statutes. N.C. Gen. Stat. § 15A-1444 (2009) (enumerating the circumstances under which a defendant may appeal following a plea of guilty). However, according to our decision in State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004), "it is permissible for this Court to review pursuant to a petition for writ of certiorari during the appeal period a claim that the procedural requirements of Article 58 [of the North Carolina General Statutes] were violated." Id. at 193-94, 592 S.E.2d at 732-33 (citing State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987)).
In this case, Watson contends that the trial court failed to follow the procedural requirements of Article 58 (entitled "Procedures Relating to Guilty Pleas in Superior Court"). Further, Watson has requested that this Court treat his appellate brief and the record on appeal as a petition for writ of certiorari. In order to address the merits of Watson's appeal regarding the alleged violations of Article 58, we elect to grant Watson's petition.
Watson first argues that the trial court violated section 15A-1024 by sentencing him in the presumptive range when the plea agreement recommended a sentence at the low end of the mitigated range. We are unpersuaded.
Section 15A-1024 provides as follows:
If at the time of sentencing, the judge for any reason determines to impose a sentence other than provided for in a plea arrangement between the parties, the judge must inform the defendant of that fact and inform the defendant that he may withdraw his plea. Upon withdrawal, the defendant is entitled to a continuance until the next session of court.
N.C. Gen. Stat. § 15A-1024 (2009) (emphasis added).
In this case, the plea arrangement provided that "[t]he State recommends . . . that [Watson] be sentenced at the low end of the mitigated range of sentencing for his level." (Emphasis added). Watson contends that when the trial court imposed the presumptive-range sentence — a sentence Watson contends was "other than provided for" in the plea agreement — the trial court was required, yet failed, to inform Watson of that fact and advise him that he may withdraw his plea. The State, on the other hand, argues that the plea agreement only recommended a sentence, but did not "provide for" a sentence. Therefore, argues the State, the trial court's imposition of the sentence in the presumptive range was not a "sentence other than provided for" in the plea agreement such that the requirements of section 15A-1024 apply. The issue before this Court is whether a "recommended" sentence is a "provided for" sentence as contemplated by section 15A-1024. We conclude it is not.
It is clear that under Article 58, the sentence set forth in a plea agreement is never more than a recommendation by the State. State v. Wallace, 345 N.C. 462, 465, 480 S.E.2d 673, 675 (1997) ("A plea agreement involving a sentence recommendation by the State must first have judicial approval before it can be effective; it is merely an executory agreement until approved by the court."). Regardless of whether the plea agreement states that "in exchange for X, defendant will be sentenced to Y" or that "in exchange for X, the State will recommend defendant be sentenced to Y," the trial court is free to approve the plea and sentence, reject the plea and sentence, or approve the plea and impose some other sentence. See N.C. Gen. Stat. § 15A-1023(b) (2009) ("Before accepting a plea pursuant to a plea arrangement in which the prosecutor has agreed to recommend a particular sentence, the judge must advise the parties whether he approves the arrangement and will dispose of the case accordingly."); N.C. Gen. Stat § 15A-1024 (stating that "the judge for any reason" may "impose a sentence other than provided for in a plea arrangement between the parties"); see also N.C. Gen. Stat. § 15A-1023, Official Commentary (stating that the statute "requires the judge in open court . . . to tell the defendant whether he will abide by the recommendation as to sentence. If the judge refuses to go along, the parties can either renegotiate or the defendant may withdraw his plea and secure a continuance as a matter of right. See [N.C. Gen. Stat. § ] 15A-1024.").
However, while the difference in the wording of the two examples — "defendant will be sentenced to Y" and "the State will recommend defendant be sentenced to Y" — has no bearing on the trial court's authority to impose a sentence, the difference has a clear impact on the extent of the State's obligation to the defendant pursuant to the agreement. In the first example, the State must secure for the defendant sentence Y; else the State has failed to satisfy its obligation under the agreement. In the second example, however, the State need only recommend sentence Y to satisfy its obligation. By the clear terms of this second example, the defendant agrees to accept the State's mere recommendation to the trial court subject to the trial court's authority to impose some different sentence. Therefore, in the second example, the plea agreement only "provides for" a recommendation to be made to the court, and does not actually "provide for" any sentence.
Such is the case with Watson's plea agreement. The wording of the agreement that the State "recommends" sentencing in the mitigated range "provides for" no sentence that the State was obligated to secure. Therefore, the trial court's decision to reject the State's recommendation cannot constitute a determination "to impose a sentence other than provided for in a plea arrangement." Accord State v. Blount, ___ N.C. App. ___, ___, 703 S.E.2d 921, 925-26 (2011) (holding that plea agreement language that the State "shall not object to punishment in the mitigated range of punishment" does not "provide for a mitigated-range sentence" such that "[t]here was no agreed-upon sentence for the trial court to reject." (emphasis omitted)). Accordingly, we conclude that the trial court did not violate the requirements of section 15A-1024 when it sentenced Watson in the presumptive range.
Watson further argues that the trial court violated section 15A-1022 "in determining there was a factual basis for [his] guilty plea and admission to the status of habitual felon." We disagree.
Section 15A-1022 provides that a 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) (2009).
To support a finding that there exists a factual basis to accept a plea, the information before the trial court must sufficiently establish the essential elements of the charged offense. State v. Poore, 172 N.C. App. 839, 841-42, 616 S.E.2d 639, 641 (2005). Section 14-7.1 defines habitual felon status and provides as follows:
Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon.
N.C. Gen. Stat. § 14-7.1 (2009).
In this case, prior to accepting Watson's plea, the trial court was presented with the habitual felon indictment, which listed six felony convictions in North Carolina between 1992 and 2002, and the transcript of Watson's plea, in which Watson acknowledged his status as an habitual felon. This information provided sufficient evidence of Watson's status as an habitual felon. Therefore, the trial court's acceptance of Watson's plea was not in violation of section 15A-1022.
Based on the foregoing, we conclude that the trial court's acceptance of Watson's plea and the imposition of a sentence in the presumptive range was not error. Accordingly, the judgment of the trial court is
Watson also argues on appeal that he was denied effective assistance of counsel based on trial counsel's failure to "object or otherwise advocate for their client's rights" when the trial court failed to follow the procedures outlined in section 15A-1024. Because we have already determined that the trial court's actions were not in violation of section 15A-1024, we conclude there is no merit to Watson's ineffective assistance claim. Accordingly, we decline to grant certiorari to address this issue. Cf. House of Raeford Farms, Inc. v. City of Raeford, 104 N.C. App. 280, 284, 408 S.E.2d 885, 888 (1991) (holding that a party moving for the issuance of a writ of certiorari must demonstrate merit to its petition).
AFFIRMED.
Judges STEELMAN and HUNTER, ROBERT N., JR. concur.
Report per Rule 30(e).