State v. Wagner

• Decision Date: 19 February 2002
• Docket Number: No. COA01-144.,COA01-144.
• Citation: 148 NC App. 658,560 S.E.2d 174
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Belvin E. WAGNER.

560 S.E.2d 174

148 NC App. 658

STATE of North Carolina v. Belvin E. WAGNER.

No. COA01-144.

Court of Appeals of North Carolina.

February 19, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

J. Clark Fischer, Winston-Salem, for defendant-appellant.

WALKER, Judge.

Defendant appeals his conviction and sentence as an habitual felon for attempted possession of cocaine and felonious possession of drug paraphernalia. The pertinent facts are as follows: On 18 July 1998, officers of the Winston-Salem Police Department's Street Drug Enforcement Unit conducted an undercover operation designed to target drug buyers. As part of this operation, an officer posed as a street drug dealer and sold counterfeit crack cocaine to soliciting customers. At approximately 5:00 p.m. that day, defendant approached an undercover officer and asked for some "breaks" (a street term for a small piece of crack cocaine broken from a larger piece). The officer displayed three counterfeit pieces and asked defendant, "How much?" Defendant responded that he had $30, and a sale of three counterfeit pieces resulted. Defendant was searched and officers retrieved the three counterfeit pieces and a chrome pipe commonly used for smoking crack cocaine. Defendant was arrested for attempted possession of cocaine and possession of drug paraphernalia.

At the time of defendant's arrest, the Forsyth County District Attorney's Office had procedures in place which sought to expedite repeat offenders' cases by offering them a mitigated sentence if they agreed early in the process to plead guilty. Pursuant to a plea agreement, on 17 August 1998, defendant appeared before the trial court and, based on a bill of information, entered a guilty plea to attempted possession of cocaine while having a status as an habitual felon. He then received a mitigated sentence of 101 to 131 months.

Approximately one year later, defendant filed a Motion for Appropriate Relief (MAR) alleging an error in the calculation of his sentence. On 2 May 2000, the trial court granted defendant's MAR, vacating his guilty plea and setting aside his sentence. Thereafter, defendant's case was assigned to another prosecutor, who, after reviewing the file, obtained indictments which charged defendant with attempted possession of cocaine, felonious possession of drug paraphernalia, and being an habitual felon. This prosecutor then offered defendant a second plea agreement which would have resulted in a sentence identical to the one he had previously received. However, defendant rejected the offer and moved to dismiss the indictment for felonious possession of drug paraphernalia. The trial court denied defendant's motion and he was convicted of both charges. After defendant was determined to have the status of habitual felon on each charge, he received consecutive sentences of 135 to 171 months.

With his appeal, defendant raises two issues: (1) whether his being indicted for felonious possession of drug paraphernalia was the result of prosecutorial vindictiveness; and (2) whether his being sentenced to consecutive terms of 135 to 171 months violates the expressed provisions of N.C. Gen.Stat. § 15A-1335.

I. Prosecutorial Vindictiveness

Defendant first contends his being indicted for felonious possession of drug paraphernalia violates his right to due process in that it was the result of prosecutorial vindictiveness. He maintains that since the indictment was only intended to punish him for having successfully challenged his prior sentence, it should have been dismissed.

Defendant bases his argument on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a U.S. Supreme Court case which arose out of this State. Pearce and its progeny form the framework from which a court is to determine whether a defendant has been unconstitutionally penalized for exercising a protected statutory or constitutional right. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)

; Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); and Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). In Pearce, the Court held due process of law requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725,

89 S.Ct. at 2080,

23 L.Ed.2d at 669. Accordingly, in cases involving allegations of prosecutorial vindictiveness, a defendant is constitutionally entitled to relief from judgment if he can show through objective evidence that either: (1) his prosecution was actually motivated by a desire to punish him for doing what the law clearly permits him to do, or (2) the circumstances surrounding his prosecution are such that a vindictive motive may be presumed and the State has failed to provide affirmative evidence to overcome the presumption. See Goodwin, 457 U.S. at 374-76,

102 S.Ct. at 2490,

73 L.Ed.2d at 81-82; see also United States v. Wilson, 262 F.3d 305, 314 (4th Cir.2001). Here, defendant concedes he has no direct evidence of actual vindictiveness on the part of the prosecutor. Rather, he urges this Court to presume a vindictive motive from the circumstances leading up to his felonious possession of drug paraphernalia indictment.

In Blackledge, the U.S. Supreme Court noted "the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal but only by those that pose a realistic likelihood of `vindictiveness.'" Blackledge, 417 U.S. at 27, 94 S.Ct. at 2102, 40 L.Ed.2d at 634. Consequently, prosecutorial vindictiveness is to be presumed only where the circumstances reasonably suggest a conclusion that the charges brought were likely the result of a retaliatory motive. Goodwin, 457 U.S. at 375, 102 S.Ct. at 2490, 73 L.Ed.2d at 82. Further, the prophylactic nature of the presumption is such that its imposition is warranted only when it is applicable to all cases which present the same circumstances. Id. at 381, 102 S.Ct. at 2493, 73 L.Ed.2d at 85; see also Wilson, 262 F.3d at 315

. For example, Blackledge holds a presumed motive of vindictiveness exists in all cases where a defendant appeals a misdemeanor conviction, entitling him to a trial de novo, and the state subsequently charges him with a felony for the same conduct. Blackledge, 417 U.S. at 28-29,

94 S.Ct. at 2103,

40 L.Ed.2d at 634-35. The Court reasoned the presumption is warranted since, under the circumstances, the State, when it brought the subsequent felony charge, was operating within the same general considerations as it had when it brought the misdemeanor charge. Thus, absent any other explanation, the difference in charges was presumed to have been vindictively motivated. Id. at 27, 94 S.Ct. at 2102,

40 L.Ed.2d at 634.

However, in Smith, the U.S. Supreme Court held the mere fact that a defendant received a greater sentence following a trial after he had successfully challenged a guilty plea did not warrant a similar presumption. Smith, 490 U.S. at 795, 109 S.Ct. at 2202, 104 L.Ed.2d at 870. There, the Court reasoned that in many such cases the greater sentence was more likely attributed to factors which were not considered at the time of the guilty plea but had been following a trial. Id. at 801, 109 S.Ct. at 2206, 104 L.Ed.2d at 873-74. With this background in mind, we turn to whether the circumstances presented in this case present a realistic likelihood of vindictiveness for all similarly situated cases. Defendant relies on two facts which he contends are sufficient to support such a presumption: (1) the State did not proceed on the charge of felonious possession of drug paraphernalia in the plea agreement but only after he successfully challenged his guilty plea, and (2) the present indictment was based upon facts known by the State for more than two years.

At its core, defendant's argument centers on the timing of his indictment for felonious possession of drug paraphernalia. Although the State could have originally sought an indictment for this offense after his arrest, it did so only after he successfully challenged his guilty plea. This timing, by itself, does not necessarily lead to a conclusion that the indictment was likely to have been brought for a retaliatory purpose. When a guilty plea is set aside, the State is entitled to evaluate all of the facts and circumstances in order to determine what charges it should proceed with against a defendant. Therefore, the decision to bring an additional indictment is likely to be attributable to this evaluation process rather than to a retaliatory motive. See generally Goodwin, 457 U.S. at 381,

102 S.Ct. at 2493,

73 L.Ed.2d at 85.

Defendant's case reflects this proposition. The initial prosecutor, desiring to expedite the case, elected to forego indicting defendant but instead proceeded on a bill of information. A plea agreement was then offered to defendant by which he would only plead guilty to the charge of attempted possession of cocaine. After defendant successfully challenged his guilty plea, a second prosecutor evaluated the evidence and determined that defendant should be indicted for felonious possession of drug paraphernalia, attempted possession of cocaine, and being an habitual felon. He then offered defendant a plea agreement with terms whereby the sentence would not exceed the previous sentence. These actions on the part of the State cannot be said to have likely been the product of a vindictive motive but rather the result of an evaluation of the evidence and how defendant's case should proceed to trial. This is especially true in light of our criminal justice system's respect for the exercise of prosecutorial discretion which itself enjoys a "background presumption" of regularity. See generally United States...