State v. McGill

791 S.E.2d 702, 250 N.C. App. 121, 2016 N.C. App. LEXIS 1061
CourtCourt of Appeals of North Carolina
DecidedOctober 18, 2016
Docket16-296
StatusPublished

This text of 791 S.E.2d 702 (State v. McGill) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McGill, 791 S.E.2d 702, 250 N.C. App. 121, 2016 N.C. App. LEXIS 1061 (N.C. Ct. App. 2016).

Opinion

ENOCHS, Judge.

*122 Ottis McGill ("Defendant") appeals from the trial court's order denying his motion to withdraw his guilty plea and his convictions for two counts of common law robbery and attaining the status of an habitual felon. On appeal, he contends that the trial court erred in denying his motion to withdraw his guilty plea and erred in finding that a sufficient factual basis existed for accepting his guilty plea. After careful review, we affirm the trial court's order denying Defendant's motion to withdraw his guilty plea and find no error.

Factual Background

On 21 August 2013, Defendant entered a Western Union in Wilmington, North Carolina and demanded money from Calethea Smith ("Smith") who was working at the front counter. Smith gave Defendant *123 approximately $6,403.00 and Defendant fled the premises. The entire exchange between Defendant and Smith was captured on audio and video surveillance.

Several days later on 6 September 2013, Defendant entered New Bridge Bank in Wilmington and demanded that James Taylor ("Taylor") and Lynn Creech ("Creech")-who *704 were working as tellers at the bank at the time-give him all of the money in their cash drawers. Taylor and Creech complied and gave Defendant approximately $2,250.00. Defendant then fled.

Detectives David Timken ("Detective Timken") and K.J. Tully ("Detective Tully") with the Wilmington Police Department were assigned to investigate the robberies. They consulted with Jeff Martens with the U.S. Marshal Task Force, who informed them that he had been looking for Defendant whom he believed was in the Wilmington area and could have perpetrated the robberies. The detectives obtained a photograph of Defendant, and Detective Timken included Defendant's picture in photographic lineups he administered to Smith, Taylor, and Creech, all of whom positively identified Defendant as the man who had committed the robberies. Defendant was subsequently located and arrested.

On 23 June 2014, Defendant was indicted on two counts of common law robbery and obtaining the status of an habitual felon. Shortly thereafter, the State offered him a plea agreement that would have required him to plead guilty to these charges in exchange for concurrent-as opposed to consecutive-prison sentences.

Defendant declined this plea agreement and trial was scheduled for 30 March 2015. Prior to trial, Defendant moved to suppress the results of the photographic lineups. The trial court denied this motion.

On 30 March 2015, Defendant's case was called for trial before the Honorable Phyllis M. Gorham in New Hanover County Superior Court. Shortly after the jury was empaneled, however, Defendant informed the trial court that he did, in fact, want to enter into a plea deal with the State.

After a discussion with his attorney and the State during a recess in the proceedings, Defendant informed the trial court that he wished to plead guilty to the charges against him and proceeded to do so, signing a transcript of plea. In exchange for his guilty plea, Defendant received a prayer for judgment continued-seemingly so he could provide the State with information he possessed concerning an unrelated criminal case in exchange for a potentially more lenient prison sentence.

*124 During the time period following the entry of his guilty plea and prior to sentencing, Defendant engaged in several interviews with the State concerning the unrelated criminal matter. The State ultimately determined not to use Defendant as a witness in that case, however, and declined to recommend a reduction of his sentence to the trial court.

On 9 April 2015, Defendant filed a pro se motion for appropriate relief wherein he requested to withdraw his guilty plea on the ground that his trial counsel had erroneously informed him that if he entered into the guilty plea his sentence would run concurrently with sentences he was set to receive in connection with unrelated criminal convictions in Robeson and Bladen Counties. He further alleged the existence of an undefined conspiracy amongst court appointed attorneys generally to trick their clients into taking unfavorable plea bargains, stating that "[t]his manner of dispensing with criminal cases has become so profound that many lawyers of the Public Defenders [sic] Office and Court appointed Attorney's [sic] have little to no actual trial experience. Rather, these lawyers trick, manipulate and threateningly coerce defendants to enter guilty plea [sic]. Such a conspiracy has taken place in this case."

On 20 April 2015, Defendant was appointed counsel to represent him regarding his motion for appropriate relief. On 24 August 2015, Defendant's newly appointed counsel filed an amended motion for appropriate relief stating that "Defendant asserts his intention to withdraw his plea, but under a Motion to Withdraw a Guilty Plea and not under a Motion for Appropriate Relief."

On 17 and 22 September 2015, an evidentiary hearing was held on Defendant's motion before the Honorable W. Allen Cobb, Jr. in New Hanover County Superior Court. On 6 October 2015, Judge Cobb entered an order concluding that based on the evidence presented, Defendant's motion to withdraw his guilty plea should be denied.

*705 That same day, a sentencing hearing was held before Judge Cobb who sentenced Defendant to two consecutive sentences of 117 to 153 months imprisonment. At the conclusion of the hearing, Defendant's trial counsel attempted to enter oral notice of appeal on Defendant's behalf but was repeatedly interrupted by Defendant in the following exchange:

THE COURT: Anything further, Mr. Moore?
MR. MOORE: Judge, Mr. McGill would give notice-
THE DEFENDANT: No, no, I would like to file a motion for appropriate relief.
*125 MR. MOORE: Okay. He would like to give-
THE DEFENDANT: No, no, no, Your Honor, excuse me. I would like to file these motions for appropriate relief. I have already wrote the State Bar on Mr. Moore and that was a couple-that was a while back, you know, and I already done wrote another letter, you know, I've been writing Mr. Moore constantly.
THE COURT: Let the record reflect that the Court, based on the representations of his lawyer, enters notice of appeal to the North Carolina Court of Appeals. The Court appoints the Appellate Defender to perfect his appeal. There will be no appeal bond and if in fact the Court of Appeals affirms anything that may have been done here, then he is free to file any appropriate motion for appropriate relief.
He'll be in your custody, Mr. Sheriff.
THE DEFENDANT: Your Honor, I would like to file this motion for appropriate relief, sir. So you're denying me the right to file the motion?

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Bluebook (online)
791 S.E.2d 702, 250 N.C. App. 121, 2016 N.C. App. LEXIS 1061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgill-ncctapp-2016.