State v. Zubiena

796 S.E.2d 40, 251 N.C. App. 477, 2016 N.C. App. LEXIS 1350, 2016 WL 7976108
Court of Appeals of North Carolina·Decided December 30, 2016·No. COA16-316·Published·Cited by 2 cases

Opinions

DAVIS, Judge.

*477Ashley Meredith Zubiena ("Defendant") appeals from her conviction for assault by strangulation. On appeal, she contends that the trial *478court erred in (1) denying her post-sentencing motion to withdraw her guilty plea; and (2) ordering her to pay a $1,000 fine as part of her sentence. After careful review, we affirm.

Factual and Procedural Background

On 30 October 2015, a bill of information was filed charging Defendant with assault by strangulation of her two-year-old daughter.1 Defendant subsequently entered into a plea agreement with the State, which was set forth in a transcript of plea. The "Plea Arrangement" section of that document provided as follows:

Defendant shall plead guilty to one count of assault by strangulation. Pursuant to plea, the State shall dismiss the remaining *43charges delineated hereafter in this transcript.
Parties stipulate Defendant is a level III for felony sentencing with 6 points.

On 2 November 2015, a plea hearing was held before the Honorable William H. Coward in Buncombe County Superior Court. At the hearing, the trial court conducted a plea colloquy pursuant to N.C. Gen. Stat. § 15A-1022, which included the following:

THE COURT: All right. Miss Zubiena, have the charges been explained to you by your lawyer, and do you understand the nature of the charges, and do you understand every element of each charge?
THE DEFENDANT: Yes, sir.
THE COURT: Have you and your lawyer discussed the possible defenses, if any, to the charges?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with your lawyer's legal services?
THE DEFENDANT: Yes, your Honor.
....
THE COURT: Do you understand that you're pleading guilty to the charge of assault by strangulation which *479occurred on May 22, 2014 which is a Class H felony for which the maximum punishment is 39 months?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you now personally plead guilty to the charge that I just described?
THE DEFENDANT: Yes, your Honor.
THE COURT: Are you, in fact, guilty?
THE DEFENDANT: Yes, your Honor.
....
THE COURT: You understand that the Courts have approved the practice of plea arrangements, and you can discuss your plea arrangement with me without fearing my disapproval?
THE DEFENDANT: Yes, your Honor.
THE COURT: Have you agreed to plead guilty as part of a plea arrangement?
THE DEFENDANT: Yes, your Honor.
THE COURT: The Prosecutor and your lawyer have informed the Court these are all the terms and conditions of your plea. Defendant shall plead guilty to one count of assault by strangulation. Pursuant to plea, the State shall dismiss the remaining charges delineated hereafter in this transcript. Parties stipulate that Defendant is a Level Three for felony sentencing with six points. Charges to be dismissed are misdemeanor child abuse and driving while license revoked not impaired revocation. So is the plea arrangement as set forth within this transcript and as I've just described it to you correct as being your full plea arrangement?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you now personally accept this arrangement?
THE DEFENDANT: Yes, your Honor.
THE COURT: Other than the plea arrangement has anyone promised you anything or has anyone threatened *480you in any way to cause you to enter this plea against your wishes?
THE DEFENDANT: No, your Honor.
THE COURT: Do you enter this plea of your own free will, fully understanding what you're doing?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you agree that there are facts to support your plea and do you consent to the Court hearing a summary of the evidence?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. Miss Zubiena, do you have any questions about what I've just said to you or about anything else connected to your case?
THE DEFENDANT: No, your Honor.

(Emphasis added.)

After conducting a sentencing hearing, the trial court sentenced Defendant to 10-21 months imprisonment, suspended the sentence, placed her on 36 months supervised probation, imposed as special probation a five-month active term of imprisonment, and imposed a $1,000 fine. Defendant was also ordered to pay court costs and miscellaneous fees.

*44After the trial court announced its sentence in open court, the following exchange took place:

[DEFENSE COUNSEL]: Your Honor, the client would motion to strike her plea.
THE COURT: Denied. You have any grounds? You don't like the sentence?
[DEFENSE COUNSEL]: We like [sic] to take it to trial.
THE COURT: I don't think that's a grounds [sic] for striking a plea.
[DEFENSE COUNSEL]: Yes, sir.

Defendant gave timely notice of appeal.

*481Analysis

Defendant makes two arguments on appeal. First, she argues that the trial court erred in denying her motion to withdraw her guilty plea given that the plea agreement and plea colloquy contained no indication that a fine could be imposed as part of her punishment. Second, she contends that the fine violated the excessive fines clauses of the federal and state constitutions or, in the alternative, that the trial court abused its discretion in imposing the fine.

I. Appellate Jurisdiction

We must first determine whether this Court has jurisdiction to hear Defendant's appeal. N.C. Gen. Stat. § 15A-1444(e) provides, in pertinent part, the following:

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State v. Zubiena, 796 S.E.2d 40, 251 N.C. App. 477, 2016 N.C. App. LEXIS 1350, 2016 WL 7976108 (N.C. Ct. App. 2016).

796 S.E.2d 40 (State v. Zubiena) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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