State v. Wilson, No. COA07-144 (N.C. App. 9/4/2007)
| Decision Date | 04 September 2007 |
| Docket Number | No. COA07-144,COA07-144 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. BILLY WILSON. |
Geoffrey W. Hosford, for defendant-appellant.
On 23 October 2006, Billy Wilson ("defendant ") pled guilty to assault inflicting serious bodily injury . In exchange for his plea, the State agreed to dismiss a charge of assault with a deadly weapon inflicting serious injury. Defendant further stipulated to having six prior record level points and being a Level III offender. The plea agreement also included the following:
The State seeks and does not oppose and the Defendant consents to a sentence of a minimum of 21 months, maximum of 26 months, suspended and an intermediate sentence upon such terms and conditions as the court deems just and proper but specifically including a task assessment and completion of the DART Cherry program.
The State and the Defendant further stipulate, understand and agree that the preceding language is not to be construed as an arrangement concerning sentencing and that this plea is entered pursuant to the provisions of N.C.G.S. 15A-1023(c) and sentencing shall be in the sound discretion of the court.
At the plea hearing, the trial court sentenced defendant to an active term of imprisonment, rather than suspend the sentence as proposed in the plea agreement. Defendant filed timely notice of appeal.
Defendant contends that when the trial court declined to sentence him in accordance with the plea agreement, it should have provided him with the opportunity to withdraw his guilty plea. See N.C. Gen. Stat. § 15A-1024 (2005). Defendant further argues that the trial court, upon deciding not to accept the plea agreement, should have continued the matter until the next session of court. See id. We disagree.
Preliminarily, we note that "'a challenge to the procedures followed in accepting a guilty plea does not fall within the scope of N.C. Gen. Stat. § 15A-1444 (2003), specifying the grounds giving rise to an appeal as of right.'" State v. Carriker, ___ N.C. App. ___, ___, 637 S.E.2d 557, 558 (2006) (quoting State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004)). However, this Court has held that "it is permissible for this Court to review pursuant to a petition for writ of certiorari during the appeal period a claim that the procedural requirements of Article 58 were violated." Rhodes, 163 N.C. App. at 194, 592 S.E.2d at 733 . Accordingly, in our discretion, we deny the State's motion to dismiss and allow defendant's petition for writ of certiorari. On appeal, defendant claims that the trial court erred in not following the procedural safeguards established by North Carolina General Statutes, section 15A-1024. We disagree.
Section 15A-1024 provides that
[i]f at the time of sentencing, the judge for any reason determines to impose a sentence other than provided for in a plea arrangement between the parties, the judge must inform the defendant of that fact and inform the defendant that he may withdraw his plea. Upon withdrawal, the defendant is entitled to a continuance until the next session of court.
N.C. Gen. Stat. § 15A-1024 (2005). As our Supreme Court has explained,
[t]he [] unambiguous language of 15A-1024 discloses that this statute applies in cases in which the trial judge does not reject a plea arrangement when it is presented to him but hears the evidence and at the time for sentencing determines that a sentence different from that provided for in the plea arrangement must be imposed. Under the express...
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