State v. Wilson

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-969 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Cleveland County Nos. 11 CRS 1130-31, 86 ROBERT LEWIS WILSON, JR.

On writ of certiorari from judgment entered 23 January 2013

by Judge Linwood O. Foust in Superior Court, Cleveland County.

Heard in the Court of Appeals 29 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General Ryan C. Zellar, for the State.

Diepenbrock Law Office, P.A., by J. Thomas Diepenbrock, for Defendant-Appellant.

McGEE, Judge.

Robert Lewis Wilson, Jr. (“Defendant”) pleaded guilty to

possession with intent to sell or deliver a schedule II

controlled substance, sale or delivery of a schedule II

controlled substance, possession with intent to sell or deliver

cocaine, sale or delivery of cocaine, and attainment of habitual

felon status. The trial court consolidated the convictions and -2- sentenced Defendant on 23 January 2013 to incarceration for a

term of 92 to 120 months.

Defendant filed a petition for writ of certiorari on 25

October 2013. In this petition, counsel for Defendant

acknowledged that Defendant may not have given timely notice of

appeal and that counsel could not identify an issue that could

properly be raised on appeal. Counsel asked this Court to issue

a writ of certiorari to review the issue of whether the trial

court properly determined there was a factual basis for

Defendant’s plea to attaining the status of habitual felon.

Four days later, Defendant filed an amended petition for writ of

certiorari which is identical to the first petition except for

the addition of a verification. The petition as amended has

been referred to this panel for decision.

In our discretion, we allow the petition and consider

Defendant’s argument that the trial court erred in determining

that a factual basis supported Defendant’s admission to

attaining the status of habitual felon.

“The judge may not accept a plea of guilty or no contest

without first determining that there is a factual basis for the

plea.” N.C. Gen. Stat. § 15A-1022(c) (2013).

This determination may be based upon information including but not limited to: -3-

(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.

In the present case, the habitual felon indictment lists

three prior felony convictions entered during three different

sessions of court based upon offenses committed on 20 August

1992, 7 May 2004, and 9 February 2005. At the plea hearing,

Defendant verbally stated there were facts to support his plea,

that he stipulated to a factual basis for the plea, and that he

consented to the State summarizing the evidence relating to the

factual basis. The State subsequently narrated the facts

supporting Defendant’s habitual felon status arising out of

Defendant’s commission of felony offenses committed in August

1992, May 2004, and February 2005.

Defendant contends that the trial court’s determination

that there was a factual basis for Defendant’s admission to

habitual felon status “is not supported in the record” and that -4- the “State’s summary did not provide the factual basis.” For

support, Defendant cites State v. Sinclair, 301 N.C. 193, 270

S.E.2d 418 (1980), and State v. Agnew, 361 N.C. 333, 643 S.E.2d

581 (2007).

In Sinclair, our Supreme Court concluded that a

“defendant’s bare admission of guilt . . . does not provide the

‘factual basis’ contemplated by G.S. 15A-1022(c).” Sinclair,

301 N.C. at 199, 270 S.E.2d at 421. “The statute, if it is to

be given any meaning at all, must contemplate that some

substantive material independent of the plea itself appear of

record which tends to show that [the] defendant is, in fact,

guilty.” Id. at 199, 270 S.E.2d at 421-22.

In Agnew, our Supreme Court considered the same issue and

concluded that “the transcript, defense counsel’s stipulation,

and the indictment taken together did not contain enough

information for an independent judicial determination of [the]

defendant’s actual guilt in the instant case.” Agnew, 361 N.C.

at 337, 643 S.E.2d at 584.

The crux of Defendant’s argument is that the prosecutor for

the State “identified one of the three convictions used for

[habitual felon] status as being the 5 August 2004 conviction

for the sale or delivery of cocaine” and subsequently -5- “contradicted her summary of the convictions utilized for the

habitual felon status” when she made the following statement:

And, as to his prior record, the State counted his points for Assault on a Female from 2002, Cleveland County, and Assault on a Female from 2003, Cleveland County as Class 1 misdemeanors. A series of felony breaking and enterings and larcenies that do not include the habitual one from October 15, 1992 here in Cleveland County.

A felonious possession of stolen goods from May 16, of 2000 here in Cleveland County and the G felony being sell and delivery of cocaine August 5, 2004 right here in Cleveland County.

The offense that was used to elevate him to habitual for that date was for possession and not the sell.

However, as the State points out, the prosecutor’s statement

served only to make “clear that the August 5, 2004 charge that

was used to elevate Defendant to habitual felon status . . . was

different from the charge used on [D]efendant’s prior record

level worksheet[.]” Indeed, the record shows that the habitual

felon indictment lists “the felony offense of Possession With

Intent to Sell or Deliver Cocaine” with a conviction date of 5

August 2004. The prior record level worksheet shows a

conviction for “sell/deliver cocaine” on 5 August 2004. The

record does not indicate that the prosecutor contradicted her

summary of the convictions utilized for the habitual felon -6- status when she made the foregoing statement. Defendant has not

shown error on this basis.

Affirmed.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).