State v. Ford
| Citation | 185 S.E.2d 328,13 N.C.App. 34 |
| Decision Date | 15 December 1971 |
| Docket Number | No. 7121SC764,7121SC764 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Donnie L. FORD, alias Ronald Ford. |
Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore, Jr., for the State.
Curtiss Todd, Winston-Salem, for defendant appellant.
The record contains no exceptions or assignments of error. It affirmatively appears from the record that the defendant, represented by counsel, freely, understandingly and voluntarily entered a plea of Nolo contendere to a valid bill of indictment, and the prison sentence imposed by the judgment is within the limits prescribed for a violation of the statute.
In the defendant's trial in the superior court, we find no error.
No error.
The record contains no exceptions or assignments of error. Defendant does not attack his plea of nolo contendere, nor does he contend that the record fails to adequately show that the plea was voluntarily and understandingly made. Therefore, I do not think we are required, on our own motion, to inquire into the question of whether the plea was in fact voluntarily and understandingly made, or whether the record sufficiently shows that it was.
Where an appeal contains no assignment of error, the judgment will be sustained unless error appears on the face of the record proper. State v. Smith, 279 N.C. 505, 183 S.E.2d 649. The record proper in a criminal case ordinarily consists of (1) the organization of the court, (2) the charge (information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669. While the plea and arraignment are parts of the record proper, in my opinion, evidence concerning the circumstances under which the plea was entered is not.
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the Supreme Court of the United States reversed three capital convictions on the ground the record failed to affirmatively disclose that defendant voluntarily and understandingly entered his pleas of guilty. There, as here, defendant did not raise this question in his brief. (Apparently the question was argued on oral argument.) The Supreme Court nevertheless concluded that the matter was properly before it because of an Alabama statute requiring the reviewing court to comb the entire record in capital cases for "any error prejudicial to the appellant, even though not called to our attention in brief of counsel." The instant case is not a capital case and therefore is distinguishable from Boykin.
Since Boykin, we have held that the failure of the record to affirmatively show that a plea of guilty was voluntarily and understandingly entered entitles a defendant to replead. State v. Harris, 10 N.C.App. 553, 180 S.E.2d 29. However, I do not interpret Boykin, or Harris, to mean that in a non-capital case, an appellate court must search the record to determine if it sufficiently shows that a plea was voluntarily and understandingly made where the defendant has raised absolutely no question with respect thereto.
In my opinion no error appears on the face of the record proper. I therefore vote to find no error without further inquiry.
Counsel for the defendant in this appeal has brought forward no assignments of error but says in his brief that the following question is raised: 'Were any of defendant's constitutional or other legal rights abridged by the trial court?' The Attorney General asserts that he has searched the record and can find no error. The indictment properly charged the crime of felonious escape, and the two-year sentence was within the statutory limits. G.S. § 148--45. Nevertheless, the defendant's appeal does present the question whether error appears on the face of the record proper. State v. Roberts, 279 N.C. 500, 183 S.E.2d 647 (1971); State v. Moore, 6 N.C.App. 596, 170 S.E.2d 568 (1969). In State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971), it is said:
'* * * Ordinarily, in criminal cases the record proper consists of (1) the organization of the court, (2) the charge (information, warrant or indictment), (3) the Arraignment and plea, (4) the verdict, and (5) the judgment.' (Emphasis added.)
See also State v. Roberts, Supra. That which occurs during the arraignment and entry of the plea is a part of the record proper. In my opinion, error does appear on the face of this record proper. At the time of the arraignment and entry of the plea of nolo contendere, as shown by this record, neither the trial judge nor anyone else actually informed the defendant of the nature of such plea or of the possible consequences. The trial judge did not make an adjudication that the plea was freely, understandingly and voluntarily made, and in my...
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State v. Lindsey
...was voluntary. However, it is better practice to always do so. State v. Johnson, 7 N.C.App. 53, 171 S.E.2d 106 (1969); State v. Ford, 13 N.C.App. 34, 185 S.E.2d 328 (1971). The plea will not be disturbed on appeal. State v. Abernathy, 1 N.C.App. 625, 162 S.E.2d 114 (1968); State v. McKinnon......
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State v. Blake
...Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Ford, N.C., 187 S.E.2d 741 (1972); and State v. Ford, 13 N.C.App. 34, 185 S.E.2d 328 (1971), as well as the provisions of G.S. § 7A--457(b) relating to pleas of guilty by indigents. The defendant was told he cou......