Opinion
No. 07-1183.
Filed 20 May 2008.
Iredell County Nos. 06CRS56006, 06CRS56009.
Appeal by defendant from judgment entered 24 April 2007 by Judge Susan C. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 5 May 2008.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. Terry F. Rose for defendant appellant.
Defendant appeals from a judgment entered upon his guilty plea. Because we find a sufficient factual basis for the plea, we affirm.
Defendant was indicted for assault with a deadly weapon with intent to kill and possession of a firearm by a felon. He entered into a written plea agreement with the State, allowing him to plead guilty to the reduced charge of assault with a deadly weapon in exchange for his guilty plea to possession of a firearm by a felon. At his plea hearing, defendant affirmed under oath that he was pleading guilty, that he was guilty, and that he entered his plea of his "own free will, fully understanding" his decision. Hestipulated to the existence of a factual basis for his plea and consented to the prosecutor's summary of the evidence. The prosecutor stated that defendant struck Adam Santiago in the head with the butt of a handgun during a fight that occurred on 2 January 2006. Defendant also pointed the gun in Santiago's face and pulled the trigger; but it did not fire. Defendant fled the scene in a red vehicle. The police were called and took statements from Santiago and other eyewitnesses. The prosecutor noted that defendant had been convicted of a felony in 1995.
Defense counsel announced that defendant "would dispute some of the facts" in the prosecutor's summary, "but not enough of them to change the fact that he is, of course, entering the plea of guilty and does admit to having committed this offense." Counsel conveyed that defendant "did hit [Santiago] with the gun . . . [but] denies having attempted to fire the gun." The defense then submitted a written report prepared by Appropriate Punishment Options. After hearing the parties' arguments as to sentencing, the court questioned defendant about the assault. Defendant told the court that he struck Santiago with an unloaded BB gun, which only "look[ed] like" a .45 caliber handgun. Defendant also denied pointing the gun at Santiago. The prosecutor advised the court that police never found the gun.
After reviewing the statements given to police by Santiago and witnesses Yolanda Norman and Keisha Summers, the court accepted defendant's guilty plea "based on the statements of Adam Santiago and the two women. . . . [T]hose three statements all say . . . they saw him point the gun and try to fire it." Defendant did not object or move to withdraw his plea. The court consolidated the offenses for judgment and sentenced defendant to an active prison term of twenty to twenty-four months.
On appeal, defendant asserts that the trial court erred, finding a factual basis for his guilty plea under N.C. Gen. Stat. § 15A-1022(c) (2007), absent any evidence to show the weapon he used to assault Santiago was a firearm or deadly weapon. He notes that he denied possessing a firearm and informed the court that the gun used in the assault was a BB gun. Because the gun was not recovered, defendant contends that the State offered no proof of its character as a firearm or deadly weapon. Defendant also claims that the court abused its discretion by imposing an active sentence in lieu of probation.
The State moves to dismiss defendant's appeal on the grounds that (1) the record on appeal does not contain a notice of appeal as required by N.C. R. App. P. 4(a)(1)(2) (2007), and (2) the issues raised by defendant do not fall within his limited appeal of right from a guilty plea under N.C. Gen. Stat. § 15A-1444(a1)-(a2), (e) (2007). In his response to the State's motion, defendant attaches a form he sent from jail to the clerk of superior court requesting an appeal on 26 April 2006, two days after his conviction. He also provides a notarized letter from a deputy clerk, confirming his submission of the notice of appeal on the form provided by his jailors. Although she presented the document to the trial judge, who signed appellate entries and appointed counsel to represent defendant on appeal, the deputy clerk made no official entry in the court's records, explaining that "[w]hen a defendant gives notice of appeal after being sentenced, this is a normal practice for me to follow." Defendant's counsel states that she did not recognize the document as a notice of appeal while assembling the proposed record on appeal.
A criminal appeal may be taken by "(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within 14 days after entry of judgment[.]" N.C. R. App. P. 4(a)(1)-(2). The record on criminal appeal must contain "a copy of the notice of appeal or an appropriate entry or statement showing appeal taken orally[.]" N.C. R. App. P. 9(a)(3)(h).
Because it appears that defendant used the only means available to give notice of appeal from jail, and that he did so in a timely manner two days after entry of judgment, we shall amend the record on appeal ex mero motu to include defendant's notice of appeal. See State v. Dayberry, 131 N.C. App. 406, 407-08, 507 S.E.2d 587, 588 (1998).
We agree with the State that none of defendant's assignments of error presents a cognizable claim for relief on appeal from a guilty plea under N.C. Gen. Stat. § 15A-1444(a1), (a2), (e). State v. Dickson, 151 N.C. App. 136, 137-38, 564 S.E.2d 640, 640-41 (2002). As explained in State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004), however, this Court may issue a writ of certiorari to review the factual basis for a guilty plea, when the defendant raises the issue on appeal. Therefore, as to defendant's first two assignments of error challenging the factual basis for his plea, "`[w]e choose to treat defendant's appeal as a petition for writ of certiorari, which we now allow.'" State v. Poore, 172 N.C. App. 839, 841, 616 S.E.2d 639, 640 (2005) (quoting Rhodes, 163 N.C. App. at 193, 592 S.E.2d at 732). Because defendant was sentenced within the presumptive range for his offense and prior record level, we have no authority to review his sentence on appeal or by writ of certiorari. State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d 867, 872, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002); see also N.C. Gen. Stat. § 15A-1340.17(c), (e) (2007). Accordingly, as to defendant's third assignment of error, we allow the State's motion to dismiss.
Under N.C. Gen. Stat. § 15A-1022(c), the trial court "may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea." The court may base its finding of a factual basis upon, inter alia, the following:
(1) A statement of the facts by the prosecutor.
(2) A written statement of the defendant.
(3) An examination of the presentence report.
(4) Sworn testimony, which may include reliable hearsay.
(5) A statement of facts by the defense counsel.
Id. "A trial court's findings of fact are binding on appeal when supported by competent evidence. Inconsistencies or conflicts in the testimony do not necessarily undermine the trial court's findings, since such contradictions in the evidence are for the finder of fact to resolve." State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992) (citations omitted). Moreover, a defendant may plead guilty to an offense while affirmatively denying his guilt, provided there is evidence of a factual basis for the plea. See North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 167 (1970); see also State v. McClure, 280 N.C. 288, 294, 185 S.E.2d 693, 697 (1972) (noting "that in Alford defendant continuously denied his guilt of any crime" while pleading guilty).
In challenging the factual basis for his plea, defendant argues that the State adduced no evidence that the weapon he used in the assault was either a firearm or a deadly weapon. See N.C. Gen. Stat. §§ 14-33(c)(1),-415.1(a) (2007). For purposes of § 14-415.1(a), a firearm is defined as "any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive[.]" Although a BB gun may be deemed a deadly weapon in certain circumstances, State v. Pettiford, 60 N.C. App. 92, 99, 298 S.E.2d 389, 393 (1982), it does not qualify as a firearm. Cf. N.C. Gen. Stat. § 14-269.2(b) (2007) (distinguishing between "firearm" and "BB gun, stun gun, air rifle, or air pistol").
We find no error in the trial court's finding a factual basis for defendant's plea. In addition to pleading guilty and admitting his guilt in open court, defendant both stipulated to the existence of a factual basis and allowed the prosecutor to present a summary of the evidence in lieu of a formal tender. The prosecutor recounted witness statements depicting defendant's possession and use of a handgun to assault Santiago. The court conducted its own review of the witness statements and noted that the victim and two eyewitnesses described defendant's use of a handgun during the assault. While he denied that the gun in question was a firearm, defendant did not produce the gun or otherwise refute the State's proffer. Absent conclusive proof to the contrary, the prosecutor's proffer was sufficient to permit an inference that the gun, according to the witnesses, appeared to be a firearm. See State v. Joyner, 312 N.C. 779, 783-84, 324 S.E.2d 841, 844-45 (1985). The fact that the gun was not recovered does not preclude this inference. State v. Spellman, 167 N.C. App. 374, 391, 605 S.E.2d 696, 707 (2004), appeal dismissed, disc. review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). The court was entitled to resolve this conflict in the evidence in its capacity as finder of fact.
Affirmed.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).