State v. Ford

• Decision Date: 12 April 1972
• Docket Number: No. 50,50
• Citation: 187 S.E.2d 741,281 N.C. 62
• Parties: STATE of North Carolina v. Donnie L. FORD, alias Ronald Ford.
• Court: North Carolina Supreme Court

Page 741

187 S.E.2d 741

281 N.C. 62

STATE of North Carolina v. Donnie L. FORD, alias Ronald Ford.

No. 50.

Supreme Court of North Carolina.

April 12, 1972.

Atty-Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore for the State.

Curtiss Todd, Winston-Salem, for defendant appellant.

BOBBITT, Chief Justice.

The question is whether the plea of Nolo contendere and the judgment entered thereon should be vacated and the cause remanded to the superior court to permit defendant to replead to the bill of indictment. If not, the decision of the majority of the panel of the Court of Appeals must be affirmed.

In State v. Woody, 271 N.C. 544, 157 S.E.2d 108 (1967), this Court affirmed judgments based on pleas of guilty entered in behalf of defendant by his counsel. On appeal, defendant assigned as error the acceptance of the pleas 'without ascertaining whether or not the defendant personally wished to enter' them. An excerpt from the opinion of Chief Justice Parker is quoted below:

'(D)ue to the ever-increasing burden placed upon this Court to rule upon the countless petitions for review of the constitutionality of criminal convictions, it would be well, though not mandatory, for every trial judge in this State to interrogate, as most of our trial judges do, every defendant who enters a plea of guilty in order to be sure that he has freely, voluntarily and intelligently consented to and authorized the entry of such plea. However, we wish to make it clear that any failure on the part of the trial judge to follow this recommended procedure in cases of this nature would not be fatal to the conviction.'

G.S. § 7A--457(b), as amended by Chapter 1243, Session Laws of 1971, provides: 'If an indigent person waives counsel as provided in subsection (a), and pleads guilty to any offense, the court shall inform him of the nature of the offense and the possible consequences of his plea, and as a condition of accepting the plea of guilty the court shall examine the person and shall ascertain that the plea was freely, understandably (sic) and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency.' (Our italics.) In the present case, defendant was represented by counsel who tendered the plea in open court in defendant's presence and in his behalf.

When a defendant Who is represented by counsel tenders a plea of guilty or a plea of Nolo contendere, the law as declared in State v. Woody, supra, has not been modified by any subsequent decision of this Court or by any North Carolina statute. However, our law has been affected by the decision of the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Since Boykin was decided, and based thereon, panels of the North Carolina Court of Appeals have held consistently that, notwithstanding a defendant who is represented by counsel enters a plea of guilty or a plea of Nolo contendere, it must appear affirmatively in the record that he did so voluntarily and understandingly. State v. Harris, 10 N.C.App. 553, 180 S.E.2d 29 (1971); State v. Treadway, 12 N.C.App. 167, 182 S.E.2d 638 (1971); State v. Atkins, 12 N.C.App. 169, 182 S.E.2d 595 (1971). In each of these cases the defendant's plea and the judgment entered thereon were vacated and the case was remanded to the superior court to permit the defendant to replead to the bill of indictment. In Harris, Judge Brock said: 'The failure of the record in this case to affirmatively show that defendant was aware of the consequences of his pleas of guilty and to affirmatively show that his pleas were voluntarily and understandingly entered entitles the defendant to have his pleas of guilty vacated and entitles him to replead to the charges.' Supra 10 N.C.App. at 561, 180 S.E.2d at 34.

In Boykin v. State, 281 Ala. 659, 207 So.2d 412 (1968), the defendant, represented by court-appointed counsel, entered a plea of guilty to each of five indictments for common-law robbery. It was provided by statute that '(a) ny person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.' Alabama Code, Title 14, § 415 (1959). It was also provided by statute: 'If he pleads guilty, . . . the court must cause the punishment to be determined by a jury. . . .' Alabama Code, Title 15, § 277 (1959). In Case No. 15520, the jury returned the following verdict: 'We, the Jury, find the defendant guilty of Robbery, as charged in the indictment, on his plea of guilty, and further find that he shall suffer death by electrocution.' On appeal, the judgment was affirmed by the Supreme Court of Alabama. (Note: Although the appeal relates specifically to No. 15520 and to the jury's verdict therein, the dissenting opinion states that '(b)y agreement, all five cases were presented to the same jury.') Three of the seven Justices of the Supreme Court of Alabama dissented on the ground that 'the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.' The Supreme Court of the United States granted Certiorari. 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).

The Supreme Court of the United States reversed. This excerpt from the opinion of Mr. Justice Douglas indicates the basis of decision: 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record. What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.' Boykin v. Alabama, 395 U.S. 238, 243--244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279--280. Decision was based on the ground that "the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty." Id. at 244, 89 S.Ct. at 1713, 23 L.Ed.2d at 280 (quoting the dissent in Boykin v. State, supra).

A dissenting opinion by Mr. Justice Harlan, with whom Mr. Justice Black joined, stated that '(t)he Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure.' Although Rule 11 is not mentioned in Mr. Justice Douglas's opinion for the Court, there is substantial justification for Mr. Justice Harlan's statement. See, 'Criminal Procedure--Requirements for Acceptance of Guilty Pleas,' 48 N.C.L.Rev. 352 (1970).

Rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C. Appendix (1971), provides: 'A defendant may plead not guilty, guilty or, with the consent of the court, Nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of Nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'

In Boykin, Mr. Justice Douglas quotes with approval from McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), a decision based solely on the Court's interpretation of Rule 11. In McCarthy, the Court held that, in a criminal prosecution in the United States District Court, the trial judge could not accept a plea of guilty unless, in addition to all other requirements, he determined that there was a factual basis for the plea.

Boykin involved death sentences. Nothing in the opinions of the Supreme Court of Alabama and of the Supreme Court of the United States indicates that the trial judge made Any inquiry of the defendant or of his counsel with reference to whether the pleas of guilty were voluntarily and understandingly entered. Nothing in the opinions of the Court of Appeals in Harris, Treadway and Atkins indicates that the trial judge made Any inquiry of the defendant or of his counsel with reference to whether the pleas of guilty were voluntarily and understandingly entered. The question before us is whether the present record discloses sufficiently that defendant's plea of Nolo contendere was entered voluntarily and understandingly.

Although the record contains no exception or assignment of error, defendant's appeal...