State v. Handy, 248A87

• Decision Date: 10 May 1990
• Docket Number: No. 248A87,248A87
• Citation: 391 S.E.2d 159,326 N.C. 532
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Kenneth HANDY.

Page 159

391 S.E.2d 159

326 N.C. 532

STATE of North Carolina v. William Kenneth HANDY.

No. 248A87.

Supreme Court of North Carolina.

May 10, 1990.

Lacy H. Thornburg, Atty. Gen. by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

After careful consideration of the record and briefs and hearing oral argument, we conclude that defendant should have been allowed to withdraw his plea of guilty in this capital case, that defendant's sentence of death entered upon his guilty plea must be vacated, and that there must be a new disposition of the case upon the entry of a new plea. We set out only those facts necessary to an understanding of our decision.

During the course of investigation into the 3 November 1986 stabbing death of Eugene Michael Morgan, defendant told the investigating officer that Morgan had made a homosexual advance towards defendant and that he became enraged, hit Morgan, then stabbed him to death. Defendant stated he then took Morgan's wallet to make the stabbing look like a robbery.

After his arrest, defendant made two more written statements. The first repeated defendant's initial description of events. In the second statement, which was a transcript of a question and answer session between defendant and an investigating officer, defendant stated he stabbed Morgan in order to rob him. The last statement contained no mention of a homosexual advance.

At his arraignment for murder on 27 January 1987 defendant pled "not guilty." During final pretrial motions on 31 March 1987, defendant moved to withdraw his "not guilty" plea and tendered a plea of "guilty" to felony murder, with the charge of armed robbery being the underlying felony. After conducting the required statutory inquiry, the trial court accepted and recorded defendant's guilty plea. N.C.G.S. § 15A-1022 (1988). Jury selection for the capital sentencing hearing began on the same day following a luncheon recess. Court recessed without having completed jury selection and therefore before impaneling the sentencing jury.

On the following morning, 1 April 1987, before the proceedings reconvened, defense counsel made a motion to withdraw the plea of guilty. The trial judge treated this request as a motion for appropriate relief under N.C.G.S. §§ 15A-1401 to -1420. He denied the motion in a seven-page order containing findings and conclusions to the effect that defendant's plea of guilty was his informed choice, made freely, voluntarily, and understandingly; that there was a factual basis for the plea; and that defendant's evidence to the contrary was unbelievable. The trial judge further noted that, to the extent the court had any discretion to allow or deny the right to withdraw the plea previously entered, the court, in its discretion, denied defendant's motion. We hold that the trial court applied the wrong standard.

We note as an initial matter that there is no conflict between N.C.G.S. § 15A-1444(e) ("except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest ...") and N.C.G.S. § 7A-27(a) (appeal as of right in murder cases where the sentence is life imprisonment or death). Defendant may appeal as of right since the trial judge denied his motion to withdraw his plea of guilty. Compare State v. Dickens, 299 N.C. 76, 79, 261 S.E.2d 183, 185 (1980) (denial of motion to withdraw plea) with State v. Taylor, 308 N.C. 185, 186, 301 S.E.2d 358, 359 (1983) (defendant receiving life sentence "has no appeal of right since he entered pleas of guilty and no contest").

The trial judge erred in treating defendant's motion made prior to verdict as a motion for appropriate relief. A motion for appropriate relief is a post-verdict motion (or a post-sentencing motion where there is no verdict) made to correct errors occurring prior to, during, and after a criminal trial. N.C.G.S. § 15A-1411 (1988); Bailey, Trial Stage and Appellate Procedure Act: An Overview, 14 Wake Forest L.Rev. 899, 905-06 (1978). A party may make the motion "[a]fter the verdict but not more than 10 days after entry of judgment." N.C.G.S. § 15A-1414(a) (1988). "Entry of [j]udgment" occurs "when sentence is pronounced." N.C.G.S. § 15A-101(4a) (1988). A verdict is "the answer of the jury concerning any matter of fact submitted to [it] for trial." State v. Jernigan, 255 N.C. 732, 736, 122 S.E.2d 711, 714 (1961) (emphasis added). "[I]n a strict sense only a jury can render a verdict, and the term does not include findings by a court." 76 Am.Jur. 2d Trial § 1111, at 90 (1975); see State v. Branner, 149 N.C. 559, 563, 63 S.E. 169, 171 (1908) ("verdict" of judge is a "legal anomaly"). A motion for appropriate relief is not proper where made prior to sentencing when there is no jury verdict.

Had defendant waited to challenge his plea of guilty until after the jury had recommended and the trial court had imposed a sentence, it would have required the filing of a motion for appropriate relief. ¹ 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. See N.C.G.S. § 15A-1420 (1988); see generally State v. Dickens, 299 N.C. 76, 261 S.E.2d 183 (discussing a post-judgment motion to withdraw a guilty plea). 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.

In a case where the defendant seeks to withdraw his guilty plea before sentence, he is generally accorded that right if he can show any fair and just reason.

On the other hand, where the guilty plea is sought to be withdrawn by the defendant after sentence, it should be granted only to avoid manifest injustice.

State v. Olish, 164 W.Va. 712, 715, 266 S.E.2d 134, 136 (1980) (citations omitted); see State v. Copple, 218 Neb. 837, 359 N.W.2d 782 (1984); see generally Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927). Compare United States v. Hancock, 607 F.2d 337 (10th Cir.1979) (withdrawal before sentencing) with United States v. Tiler, 602 F.2d 30, 35 (2d Cir.1979) (withdrawal after sentencing). Olish recognized three reasons for this distinction:

First, once sentence is imposed, the defendant is more likely to view the plea bargain as a tactical mistake and therefore wish to have it set aside. Second, at the time the sentence is imposed, other portions of the plea bargain agreement will often be performed by the prosecutor, such as the dismissal of additional charges or the return or destruction of physical evidence, all of which may be difficult to undo if the defendant later attacks his guilty plea. Finally, a higher post-sentence standard for withdrawal is required by the settled policy of giving finality to criminal sentences which result from a voluntary and properly counseled guilty plea.

These considerations are not present where the defendant seeks to withdraw the guilty plea prior to sentencing.

State v. Olish, 164 W.Va. at 716, 266 S.E.2d at 136 (citation omitted).

While there is no absolute right to withdrawal of a guilty plea, State v. McClure, 280 N.C. 288, 294, 185 S.E.2d 693, 697 (1972); State v. Branner, 149 N.C. at 561, 63 S.E. at 170; see also People v. Zaleski, 375 Mich. 71, 79, 133 N.W.2d 175, 179 (1965); Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973); Libke v. State, 60 Wis.2d 121, 126, 208 N.W.2d 331, 334 (1973), withdrawal motions made prior to sentencing, and especially at a very early stage of the proceedings, should be granted with liberality, e.g., People v. Zaleski, 375 Mich. at 79, 133 N.W.2d at 179; Commonwealth v. Forbes, 450 Pa. at 190, 299 A.2d at 271; Com. v. Jones, 389 Pa.Super. 159, ---, 566 A.2d 893, 894 (1989); Libke v. State, 60 Wis.2d at 127-28, 208 N.W.2d at 334-35. "It should be easier to withdraw a plea before sentence than after." Libke v. State, 60 Wis.2d at 124, 208 N.W.2d at 333. Rule derived from case law: e.g., Kercheval v. United States, 274 U.S. at 224, 47 S.Ct. at 583, 71 L.Ed. at 1012 (dictum); Jordan v. United States, 350 A.2d 735, 737 (D.C.1976); State v. Smith, 61 Haw. 522, 606 P.2d 86 (1980) (per curiam); People v. Zaleski, 375 Mich. at 79, 133 N.W.2d at 179; State v. Olish, 164 W.Va. 712, 266 S.E.2d 134. Rule established by legislative enactment or Rule of Criminal Procedure: e.g., Wahl v. State, 691 P.2d 1048 (Alaska App.1984); State v. Carrasco, 117 Idaho 295, ---, 787 P.2d 281, 284 (1990); State v. DeZeler, 422 N.W.2d 32, 36 (Minn.App.), aff'd, 427 N.W.2d 231 (Minn.1988); State v. Harlow, 346 S.E.2d 350 (W.Va.1986). Rule derived by reference to the American Bar Association Standards for Criminal Justice § 14-2.1(a) (2d ed. 1980) or its draft predecessors: e.g., State v. Copple, 218 Neb. 837, 359 N.W.2d 782; Commonwealth v. Forbes, 450 Pa. at 191, 299 A.2d at 271; Libke v. State, 60 Wis.2d 121, 208 N.W.2d 331. The Federal Rules of Criminal Procedure also permit a defendant to withdraw a guilty plea prior to sentencing for "any fair and just reason." Fed.R.Crim.P. 32(d). We find only one jurisdiction that applies a higher standard when a defendant moves to withdraw a plea prior to sentencing, that standard being set by an express rule of criminal procedure (manifest injustice regardless of the stage at which the motion is made). State v. Taylor, 83 Wash.2d 594, 521 P.2d 699 (1974).

There is no...