State v. Robinson

• Decision Date: 18 April 2006
• Docket Number: No. COA05-499.,COA05-499.
• Citation: 628 S.E.2d 252
• Parties: STATE of North Carolina v. Michale Greylen ROBINSON, Defendant.
• Court: North Carolina Court of Appeals

Page 252

628 S.E.2d 252

STATE of North Carolina v. Michale Greylen ROBINSON, Defendant.

No. COA05-499.

Court of Appeals of North Carolina.

April 18, 2006.

Appeal by Defendant from judgment entered 5 November 2004 by Judge J. Gentry Caudill in Superior Court, Catawba County. Heard in the Court of Appeals 6 March 2006.

Attorney General Roy Cooper, by Assistant Attorney General Ashby T. Ray, for the State.

Anne Bleyman, Chapel Hill, for defendant-appellant.

WYNN, Judge.

A criminal defendant seeking to withdraw a guilty plea before sentencing is "generally accorded that right if he can show any fair and just reason." State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (citation omitted). In this case, Defendant argues that the trial court should have allowed him to withdraw his guilty plea because there was confusion as to the terms of the plea agreement. Because the written terms of the plea agreement were clear and Defendant testified to his understanding of the terms of the agreement, we hold that Defendant presented no fair or just reason to allow the withdrawal of his guilty plea.

The State's evidence tended to show the following: In August 2001, law enforcement found between 200 and 400 grams of cocaine at Defendant's residence pursuant to a search warrant. In September 2002, Defendant's brother, Eric Wimbush, was indicted on federal drug charges. Shortly thereafter, the United States Attorney's office served Defendant with a target letter identifying him as a target, in the same case as his brother, on conspiracy charges involving the sale of cocaine.

Christopher Patrick LaCarter, a sergeant for the Hickory Police Department and a member of the Federal Bureau of Investigation's Catawba Valley Drug Task Force, interviewed Defendant on 9 December 2002. During the interview, Defendant stated he had purchased crack cocaine from Wimbush and had seen Wimbush sell crack cocaine to other people and provided their names. Sergeant LaCarter provided this information to the Assistant United States Attorney handling Wimbush's case.

On 10 February 2003, Defendant was indicted by the State of North Carolina for trafficking in cocaine by possession of more than 200 grams but less than 400 grams of cocaine; feloniously maintaining a place for controlled substances; and, misdemeanor possession of drug paraphernalia. On 12 July 2004, Defendant pled guilty to the charge of trafficking pursuant to a plea agreement with the State and the remaining charges were dismissed. The transcript of plea agreement included the following terms and conditions:

Sentencing shall be continued. The [defendant] shall testify truthfully if called upon to do so in the case US v. Wimbush. The State stipulates that said testimony shall be considered "substantial assistance" at sentencing.

Before entry of the plea, the phrase "[Defendant] will testify truthfully [and] consistent w[ith] prior statements to law enforcement" was added to the terms and conditions of the transcript of plea and was initialed by Defendant, defense counsel, and the prosecutor. The trial judge entered a judgment accepting Defendant's plea and deferring sentencing until the 1 November 2004 Criminal Session to give Defendant the opportunity to provide substantial assistance to law enforcement in the federal government's case against Wimbush.

Approximately one month before Wimbush's trial was scheduled to begin, Assistant United States Attorney Matt Martens met with Defendant in preparation for the trial. During this meeting, Defendant denied most of the key elements of his 2002 statements to Sergeant LaCarter, including any personal knowledge of Wimbush's involvement in cocaine distribution. Mr. Martens attempted to meet with Defendant again before trial, but Defendant would not agree to meet with him. Defendant testified that he was unable to meet with Mr. Martens due to a job interview. Defendant stated that he would testify truthfully if called as a witness, but refused to tell Mr. Martens what his testimony would be until he was under oath on the witness stand. Mr. Martens did not call Defendant as a witness in the Wimbush case although Defendant was present for the duration of the trial pursuant to a subpoena.

At Defendant's sentencing hearing on 5 November 2004, Defendant moved to withdraw his guilty plea to trafficking in cocaine prior to sentencing. In support of his motion, defense counsel argued:

When we pled guilty, the substantial assistance that my client was to render was to testify at his brother's federal trial, Your Honor, and testify truthfully. It was to testify truthfully at that trial and also consistently with his earlier statement. And I think the evidence will come out that my client was willing to testify truthfully at his brother's trial. However, in doing so, it may have been inconsistent with his earlier statement, which put him in a position where he could not comply with what he had agreed to do because if he testified truthfully it may have been inconsistent with his earlier statement.

At the same hearing, the State presented a letter dated 4 November 2004 from Mr. Martens to Officer Bryan Adams informing him that "[a]ny claim by [Defendant] to have provided assistance to the United States would be absolutely false."

After holding an evidentiary hearing at which Sergeant LaCarter testified as a witness for the State and Defendant testified on his own behalf, the trial court denied Defendant's motion to withdraw his guilty plea. The trial court found that Defendant had not provided substantial assistance to law enforcement and sentenced Defendant to seventy to eighty-four months imprisonment and ordered him to pay a fine in the sum of $100,000.00. Defendant appeals.

On appeal, Defendant argues that the trial court (1) erred in denying his motion to withdraw his guilty plea and (2) abused its discretion by finding he had not provided substantial assistance to law enforcement.

First, Defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because there was confusion regarding his plea agreement. We disagree.

In reviewing a trial court's denial of a defendant's motion to withdraw a guilty plea made before sentencing, "the appellate court does not apply an abuse of discretion standard, but instead makes an `independent review of the record.'" State v. Marshburn, 109 N.C.App. 105, 108, 425 S.E.2d 715, 718 (1993) (citation omitted). There is no absolute right to withdraw a plea of guilty, however, a criminal defendant seeking to withdraw such a plea before sentencing is "generally accorded that right if he can show any fair and just reason." Handy, 326 N.C. at 536, 391 S.E.2d at 161 (citation omitted). The defendant has the burden of showing his motion to withdraw his guilty plea is supported by some "fair and just reason." State v. Meyer, 330 N.C. 738, 743, 412 S.E.2d 339, 342 (1992). Our Supreme Court has set out the following factors for consideration of plea withdrawals:

[1] whether the defendant has asserted legal innocence, [2] the strength of the State's proffer of evidence, [3] the length of time between entry of the guilty plea and the desire to change it, [4] and whether the accused has had competent counsel at all relevant times. [5] Misunderstanding of the consequences of a guilty plea, [6] hasty entry, [7] confusion, and [8] coercion are also factors for consideration.

Handy, 326 N.C. at 539, 391 S.E.2d at 163 (internal citation omitted).

This Court has placed heavy reliance on the length of time between a defendant's entry of the guilty plea and motion to withdraw the plea. See State v. Graham, 122 N.C.App. 635, 637-38, 471 S.E.2d 100, 101-02 (1996) (denying the defendant's motion to withdraw guilty plea made more than one month after its entry); Marshburn, 109 N.C.App. at 109, 425 S.E.2d at 718 (denying the defendant's motion to withdraw guilty plea made at least eight months after entry of the guilty plea). In Marshburn, this Court elaborated,

This context [referring to the eight month period between entry of the plea and the motion to withdraw] requires that the reasons given by a defendant must have considerably more force than would be the case if the motion comes only a day or so after the plea was entered or if the defendant did not have competent counsel at the time he entered the plea.

Id. (internal quotations and citations omitted).

Here, Defendant moved to withdraw his guilty plea approximately three and one-half months after its entry. This delay is similar to the facts in Marshburn and Graham where relief from the plea was denied, and distinguishes Handy which allowed the plea withdrawal where the plea had been entered twenty-four hours earlier. See Handy, 326 N.C. at 534-35, 391 S.E.2d at 160; Marshburn, 109 N.C.App. at 109, 425 S.E.2d at 718-19.

Moreover, Defendant asserted neither legal innocence nor lack of representation by counsel at all relevant times. See Handy, 326 N.C. at 539-40, 391 S.E.2d at 163 (in seeking to withdraw his guilty plea the defendant asserted his legal innocence). Nor has Defendant argued misunderstanding of the consequences of a guilty plea, hasty entry of the plea, or coercion. See id. at 539, 391 S.E.2d at 163.

The sole factor Defendant asserts is confusion over the conditions of the plea agreement. Defendant cites to State v. Deal, 99 N.C.App. 456, 393 S.E.2d 317 (1990), to support his argument that his guilty plea should have been withdrawn due to confusion. In Deal, this Court found that the defendant had low intellectual abilities and had a "basic...