Opinion
No. COA12–772.
2013-05-21
STATE of North Carolina v. Stevie Lynn WILSON.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Kevin P. Bradley for defendant-appellant.
Appeal by defendant from judgment entered 13 January 2012 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 13 November 2012. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Kevin P. Bradley for defendant-appellant.
BRYANT, Judge.
Because the factual basis provided in connection with defendant's guilty plea to the charge of felonious breaking and entering supported the entry of judgment against defendant on that charge, we find no error in the trial court's acceptance of defendant's guilty plea. Because the essential elements of defendant's habitual felon indictment gave notice to defendant of the prior felony convictions to be admitted before the trial court in support of defendant's guilty plea to attaining habitual felon status, we find no error in the trial court's acceptance of defendant's guilty plea to that charge. Where defendant has failed to establish that he lacked notice of the imposition of court costs or an opportunity to be heard as to such an imposition, we find no error in the trial court's imposition of court costs.
On 7 March 2011, defendant was indicted on charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. Defendant was also indicted on the charge of having obtained habitual felon status. On 13 January 2012, defendant entered into a plea agreement with the State, wherein defendant agreed to plead guilty to the charge of felonious breaking and entering and attaining habitual felon status. The agreement also provided for an active sentence of a minimum of ninety months to a maximum of 117 months.
A hearing to consider defendant's guilty plea was held during the Criminal Session of Randolph County Superior Court beginning 9 January 2012, the Honorable Vance Bradford Long, Judge presiding. Defendant was informed of his right to remain silent, and answered “No” when asked whether he was under the influence of an intoxicant. Defendant stated that he understood the nature of the charges against him and that his attorney had discussed possible defenses with him.
THE COURT: Sir, do you understand that you have the right to plead not guilty and be tried by a jury in this matter?
THE DEFENDANT: Yes, sir.
...
THE COURT: ... Do you understand that by pleading guilty, you give up the valuable constitutional rights that you and I have just talked about, as well as other valuable constitutional rights that we have not discussed, all of which pertain to your right to a trial by jury? Do you understand that you're giving up your rights associated with a jury trial by pleading guilty?
THE DEFENDANT: Yes, sir.
THE COURT: ... Sir, do you understand that by pleading guilty, you may limit your right to appeal this case?
THE DEFENDANT: Yes, sir.
...
THE COURT: ... All right, sir, do you understand that in case 10 55679 you are pleading guilty to felonious breaking or entering, Class H felony, maximum possible punishment 30 months' confinement?
THE DEFENDANT: Yes, sir.
THE COURT: Sir, do you understand that in case 11 CRS 52, you are pleading guilty to obtaining [sic] the status of being an habitual felon, which raises the punishment for 10 55679 to Class C punishment or two hundred-a maximum of 228 consecutive months?
THE DEFENDANT: Yes, sir.
THE COURT: Do you now personally plead guilty to the charges I have just described in the record?
THE DEFENDANT: Yes, sir.
...
THE COURT: Listen carefully. Here are the terms of the plea that have been given to me:
“Defendant to plead to felony breaking and entering and habitual felon status. Defendant to receive active sentence in the mitigated range, 90 to 117 months. Felony breaking and entering consolidated. Mitigating factor: Defendant accepts responsibility for his criminal conduct.”
Sir, is the plea just read into describing your between yourself Carolina? arrangement that I have the record correct as describing your full plea arrangement and the State of North Carolina?
THE DEFENDANT: Yes, sir.
...
THE COURT: Do you enter this plea of your own free will, fully understanding what you are doing?
THE DEFENDANT: Yes, sir.
THE COURT: Do you now personally accept the terms of this plea arrangement?
THE DEFENDANT: Yes, sir.
...
THE COURT: Sir, do you agree that there's a factual basis to support the entry of your guilty plea, and do you consent to the district attorney summarizing the evidence related to the factual basis?
( [Defense counsel] conferred with the defendant.)
THE DEFENDANT: Yeah. Yes, sir.
Following defendant's acknowledgement that there was a factual basis to support the entry of his guilty plea, the State provided a summary of the facts in support of defendant's guilty pleas to the charges of felonious breaking and entering and attaining habitual felon status. Following the recitation of facts, defendant stated only, “Your Honor please, I'd ask the Court to accept the plea.” The trial court accepted defendant's guilty pleas and entered judgment against defendant for felonious breaking and entering and attaining habitual felon status. In accordance with the plea agreement, the trial court sentenced defendant as a Class C felon with a prior record level of 6 for felony sentencing purposes but found that defendant was entitled to be sentenced in the mitigated range and imposed an active term of between ninety and 117 months. Defendant now petitions this Court for a review of the proceedings below.
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On appeal, defendant raises the following three issues: whether the trial court erred in (I) accepting defendant's guilty plea to the charge of felony breaking or entering; (II) sentencing defendant as an habitual felon; and (III) imposing court costs.
Petition for writ of certiorari
Defendant entered guilty pleas on the charges of felony breaking and entering and attaining habitual felon status. The trial court accepted defendant's guilty pleas and entered judgment in accordance with the plea arrangement, sentencing defendant to an active term of a minimum of ninety months to a maximum of 117 months. Defendant now seeks appellate review of the proceedings below.
Defendant petitions for a writ of certiorari to review the factual basis given for the charge of felony breaking and entering and attaining habitual felon status. As to the issue of whether the trial court erred in imposing court costs, defendant contends that he is entitled to appeal this issue as a matter of right, or in the alternative, he petitions for a writ of certiorari as to that issue as well.
Pursuant to North Carolina General Statutes, section 15A1444,
[a] defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.
N.C. Gen.Stat. § 15A–1444(a1) (2011).
As to the issue of whether there was a factual basis sufficient to warrant the trial court's acceptance of defendant's guilty plea to the charges of felony breaking or entering and attaining habitual felon status, we grant defendant's petition for a writ of certiorari. See State v. Agnew, 361 N.C. 333, 643 S.E.2d 581 (2007) (determining whether there was a factual basis for defendant's guilty plea); State v. Rhodes, 163 N.C.App. 191, 194, 592 S.E.2d 731, 733 (2004) (“[I]t 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 [ (Procedures Relating to Guilty Pleas in Superior Court) ] were violated.”).
On the issue of the trial court's imposition of court costs, we grant defendant's petition for a writ of certiorari.
I
Defendant argues that the record does not provide a factual basis sufficient to support the trial court's acceptance of defendant's guilty plea to the charge of felony breaking and entering. Specifically, defendant contends that that the prosecutor's statement of facts failed to include any showing that defendant acted with criminal intent. We disagree.
“Because a guilty plea waives certain fundamental constitutional rights such as the right to a trial by jury, our legislature has enacted laws to ensure guilty pleas are informed and voluntary.” Agnew, 361 N.C. at 335, 643 S.E.2d at 583. Pursuant to North Carolina General Statutes, section 15A–1022,
[t]he judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:
(1) A statement of the facts by the prosecutor.
(B) A written statement of the defendant.
(C) An examination of the presentence report.
(4) Sworn testimony, which may include reliable hearsay.
(5) A statement of facts by the defense counsel.
N.C. Gen.Stat. § 15A–1022(c) (2011).
Defendant entered a plea of guilty to the charge of felony breaking and entering. “Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.” N.C. Gen.Stat. § 14–54(a) (2011).
As to the charge of felony breaking and entering, the prosecutor made the following statement of facts before the trial court:
This one occurred, like I said, September 28, 2010, at the residence where Susan Pember—Patterson in Ramseur lived. There was a storage building at that location. She and another individual, Your Honor, were—the victim and another person were across the street doing some-something, and they noticed that this vehicle was near her house. She noticed two individuals loading material, which was scrap metal, some batteries from the storage buildings. This is where the tractors—area are kept. They went over, confronted the two individuals, Your Honor.
They asked, “What are you doing?” They said that an individual named Keith said that they could take some metal from this building. She was the owner of this facility, Your Honor. She doesn't give anyone any permission.
She contacted police. They took the tag number because they left. Later they did find out who it was, Your Honor. It was [defendant] and Randall Wilson. The victim did pick them out from a lineup as the person that she saw at the truck and at-at her storage building.
Also, Your Honor, the same day, Randall Wilson pawned this stuff in Siler City, Your Honor, some material that was similar to the stuff that was taken that day. So then they were both charged.
On appeal, defendant argues that “[t]he information provided by the prosecutor is entirely consistent with Defendant leaving the area believing he was authorized to take the items and have them pawned.” We view defendant's assertion as an argument presented in the light most favorable to defendant; however, the factual basis presented is fully consistent with a conclusion that defendant removed the property from the storage shed with the intent to commit a larceny. Compare State v. Keller, 198 N.C.App. 639, 646, 680 S.E.2d 212, 216 (2009) (“Without a factual basis that defendant confined, removed, or restrained [the decedent] while he was alive, the trial court erred in accepting defendant's guilty plea to first degree kidnapping.”). Moreover, defendant's interpretation is more properly an argument to be made at a trial on the merits before a factfinder, where the State's theory of the case can be challenged. See Agnew, 361 N.C. at 335, 643 S.E.2d at 583 (“a guilty plea waives certain fundamental constitutional rights such as the right to a trial by jury....”).
The statement of facts provides sufficient basis for the trial court to find that defendant broke and entered Susan Patterson's storage shed with the intent to commit a larceny therein. SeeN .C.G.S. § 14–54(a). Therefore, the trial court did not err in accepting defendant's guilty plea to the charge of felony breaking and entering. Accordingly, defendant's argument is overruled.
II
Next, defendant argues that the trial court erred in accepting his plea of guilty to the charge of attaining habitual felon status. Specifically, defendant contends that because the one prior felony convictions provided in the prosecutor's statement of facts was distinct from any of the prior felony convictions stated in the habitual felon indictment, the trial court erred in accepting defendant's plea of guilty on the charge of having obtained habitual felon status. We disagree.
Pursuant to North Carolina General Statutes, section 14–7.3,
[a]n indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.
N.C. Gen.Stat. § 14–7.3 (2011).
Defendant's habitual felon indictment states the following:
Steve Lynn Wilson aka Stevie Lynn Wilson is an habitual felon in that on or about May 12, 1990 Steve Lyn Wilson aka Stevie Lynn Wilson did commit the felony of larceny of motor vehicle in violation of G.S. 14–72(a) and that on or about December 6, 1990 Steve Lynn Wilson aka Stevie Lynn Wilson was convicted of the felony larceny of motor vehicle in the Superior Court of Randolph County, North Carolina; and that on or about May 7, 1993 Steve Lynn Wilson aka Stevie Lynn Wilson did commit the felon of breaking and or entering in violation of G.S. 14–54(a) and that on or about July 22, 1994 Steve Lynn Wilson aka Stevie Lynn Wilson was convicted of the felony of breaking and or entering in the Superior Court of Randolph County, North Carolina; and that on or about October 2, 2000 Steve Lynn Wilson aka Stevie Lynn Wilson did commit the felony of financial card theft in violation of G.S. 14–113.9 and that on or about June 7, 2001 Steve Lynn Wilson aka Stevie Lynn Wilson was convicted of the felony of financial card theft in the Superior Court of Randolph County, North Carolina.
At the plea hearing, in attempting to establish a factual basis supporting defendant's plea of guilty to the charge of attaining habitual felon status, the State provided the following along with certified copies of each judgment:
The habitual status, Your Honor, occurs that [defendant] was convicted of assault with a deadly weapon inflicting serious injury May 12th, 1990, conviction date of December 6, 1990, Randolph County. The second one is breaking and entering May 7th, 1993, also in Randolph County; conviction date was July 22nd, 1994. And the third one was also in Randolph County, financial card theft, felony level, October 2nd, 2000; conviction was June 7th, 2001. I do have certified copies of the judgments, Your Honor. May I approach?
Defendant notes that his conviction for assault with a deadly weapon inflicting serious injury stated during the recitation of facts was not listed as one of the three underlying felonies supporting defendant's habitual felon indictment.
We note that in accordance with General Statutes, section 14–7.3, the defendant's habitual felon indictment includes the necessary elements that defendant did commit a felony “on or about May 12, 1990” and that defendant was convicted of that felony on 6 December 1990 in Randolph County Superior Court. SeeN.C.G.S. § 14–7.3; see also, State v. Bollinger, 192 N.C.App. 241, 246, 665 S.E.2d 136, 139 (2008) (“[A]n indictment is sufficient if it charges the substance of the offense, puts the defendant on notice of the crime, and alleges all essential elements of the crime. Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.” (citations and quotations omitted)). At the hearing to accept defendant's plea of guilty on the charge of attaining habitual felon status, the State informed the trial court that “[defendant] was convicted of assault with a deadly weapon inflicting serious injury May 12th, 1990, conviction date of December 6, 1990, Randolph County.” And, according to the transcript of the proceeding, the trial court was presented with a certified copy of the judgment entered against defendant for this conviction.
[The State:] I do have certified copies of the judgments, Your Honor. May I approach?
THE COURT: Yes, sir.
[The State]: [Defense counsel], do you want to see these?
[Defense Counsel]: (No response.)
...
[The State]: I believe that—that would be the evidence, Your Honor.
THE COURT: Thank you. [Defense counsel]?
[Defense Counsel]: Your Honor please, I'd ask the Court to accept the plea.
Because defendant's habitual felon indictment complied with General Statutes, section 14–7.3, giving notice of the essential elements of an underlying felony committed on 12 May 2009 as it relates to establishing defendant's habitual felon status and because the factual basis provided to the trial court during the hearing on defendant's plea of guilty to the charge of attaining habitual felon status was consistent with the essential elements of the 12 May 2009 felony offense listed in indictment, the trial court did not err in accepting the felony conviction entered 6 December 2009 in Randolph County Superior Court for a felony offense committed 12 May 2009 as a basis for establishing defendant's habitual felon status. Therefore, the trial court did not err in accepting defendant's plea of guilty to the charge of attaining habitual felon status. Accordingly, defendant's argument is overruled.
III
Defendant next argues that he was denied notice and an opportunity to be heard regarding the imposition of court costs in the amount of $3,084.50. We disagree.
“In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected.” N.C. Gen.Stat. Ann. § 7A–304(a) (2011). “[A] defendant who receives an active sentence is [ ] required to be assessed court costs unless the trial court specifically makes a written finding of just cause to waive these costs.” State v. Patterson, ––– N.C.App. ––––, ––––, 735 S.E.2d 602, 604 (2012) (citing 2011 N.C. Sess. Law 145 § 32.6). “A convicted defendant is entitled to notice and an opportunity to be heard before a valid judgment for costs can be entered.” State v. Webb, 358 N.C. 92, 101–02, 591 S.E.2d 505, 513 (2004) (citation omitted).
Here, the trial court accepted defendant's plea of guilty and entered judgment against him for felonious breaking or entering and having obtained habitual felon status. Defendant was sentenced as a Class C felon, with a prior record level of six for felony sentencing purposes. The trial court found that defendant was entitled to be sentenced in the mitigated range and sentenced defendant to an active term for a minimum of ninety months and a maximum of 117 months. The transcript of the hearing is silent as to the imposition of court costs; however, in the judgment entered, the trial court imposed upon defendant court costs in the amount of $3,084.50.
Where General Statutes, section 7A–304, states that “[i]n every criminal case in the superior ... court, wherein the defendant ... enters a plea of guilty ... costs shall be assessed and collected[,]” N.C.G.S. § 7A–304(a), and where defendant was present before the trial court during the entry of his guilty plea and sentencing, defendant has failed to establish on appeal that he was not afforded notice and an opportunity to be heard as to the imposition of court costs. Accordingly, we overrule defendant's argument.
No error. Judges McGEE and ERVIN concur.
Report per Rule 30(e).