State v. Williams , 291 N.C. 442 ( 1976 )

230 S.E.2d 515 (1976) 291 N.C. 442

STATE of North Carolina
v.
Lewis WILLIAMS.

No. 65.

Supreme Court of North Carolina.

December 21, 1976.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Henry H. Burgwyn, Raleigh, for the State.

Don H. Bumgardner, Gastonia, for defendant.

BRANCH, Justice.

Defendant contends that he was entitled to a continuance as a matter of right when the trial judge rejected his negotiated plea on the ground that the punishment therein provided was too little in view of the pending offenses.

G.S. 15A-1023, in pertinent part, provides:

(a) If the parties have agreed upon a plea arrangement pursuant to G.S. 15A-1021 in which the solicitor has agreed to recommend a particular sentence, they must disclose the substance of their agreement to the judge at the time the defendant is called upon to plead.

(b) Before accepting a plea pursuant to a plea arrangement in which the solicitor has agreed to recommend a particular sentence, the judge must advise the parties whether he approves the arrangement and will dispose of the case accordingly. If the judge rejects the arrangement, he must so inform the parties, refuse to accept the defendant's plea of guilty or no contest, and advise the defendant personally that neither the State nor the defendant is bound by the rejected arrangement. The judge must advise the parties of the reasons he rejected the arrangement and afford them an opportunity to modify the arrangement accordingly. A decision by the judge disapproving a plea arrangement is not subject to appeal.

The official commentary at this point contains the following language:

. . . If the judge refuses to go along, the parties can either renegotiate or the defendant may withdraw his plea and secure a continuance as a matter of right. See § 15A-1024.

G.S. 15A-1024 provides:

If at the time of sentencing, the judge for any reason determines to impose a sentence other than provided for in a plea arrangement between the parties, the judge must inform the defendant of that fact and inform the defendant that he may withdraw his plea. Upon withdrawal, the defendant is entitled to a continuance until the next session of court.

When the district attorney and defense counsel presented their proposed plea arrangement to the trial judge, he rejected it and stated his reasons therefor. Although the record does not affirmatively show that the trial judge "advised the defendant personally that neither the State nor the defendant is bound by the rejected arrangement," his action in permitting defendant to withdraw his plea was equivalent to the giving of such advice. Defendant does not contend that he was not afforded an opportunity to modify the plea arrangement or that he needed additional time to prepare for trial. His position is that G.S. 15A-1023 and G.S. 15A-1024 must be construed together so as to entitle him to a continuance as a matter of right.

It is a cardinal rule of statutory construction that the intent of the legislature controls the interpretation of statutes. Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22; Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67. It is also well settled that statutes dealing with the same subject matter must be construed in pari materia and harmonized to give effect to each other. Utilities Commission v. Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663; Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E.2d 19. Yet, when the language of a statute is clear and unambiguous there is no room for judicial construction and the court must give the statute its plain and definite meaning without superimposing provisions or limitations not contained within the statute. State v. Camp, 286 N.C. 148, 209 S.E.2d 754; Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643.

§ 350.5(4) of the A.L.I. Model Code of Pre-Arraignment Procedure is nearly identical to our G.S. 15A-1023(b). In Part III—Commentary of the Model Code, at page 624, we find the following comment:

If the parties do not reach a new agreement after the judge rejects the first one, and the case then proceeds to trial, the trial should be had wherever feasible before a different judge so as to eliminate any possible prejudice.

§ 350.6 of the Model Code is the counterpart of our G.S. 15A-1024 except for the striking difference that it does not contain the following language: "Upon withdrawal, the defendant is entitled to a continuance until the next session of court."

Although we are not bound by these commentaries, we have no quarrel with the conclusions therein contained. The legislature might well have enacted a statute providing for a continuance as a matter of right when the trial judge rejects a plea arrangement at any stage of the proceedings. This the legislature did not do. Instead the legislature enacted two separate and distinct statutes on the same day. The unambiguous language of G.S. 15A-1023(b) makes it clear that its provisions are activated when the trial judge rejects a negotiated plea arrangement before actual arraignment of defendant and before the introduction of evidence. This statute does not provide for a continuance as a matter of right.

The equally unambiguous language of 15A-1024 discloses that this statute applies in cases in which the trial judge does not reject a plea arrangement when it is presented to him but hears the evidence and at the time for sentencing determines that a sentence different from that provided for in the plea arrangement must be imposed. Under the express provisions of this statute a defendant is entitled to withdraw his plea and as a matter of right have his case continued until the next term.

There is no conflict in the language of the statutes requiring that they be harmonized or construed. Rather, it clearly appears that the legislature intended that these separate statutes be independent and apply to entirely different, carefully delineated factual situations. Under these circumstances, it is not within our power to interpolate the right to a continuance into the provisions of G.S. 15A-1023(b).

The provisions of G.S. 15A-1023(b) govern the factual situation presented by this appeal and, therefore, the defendant was not entitled to a continuance as a matter of right. Having so decided, we also hold that there has been no showing of abuse in the trial judge's discretionary ruling on defendant's motion to continue. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526.

Finally, we find no merit in defendant's argument that the trial judge erred by denying his motion for judgment as of nonsuit. Defendant takes the position that since the witness Lawrence knew that defendant endorsed the wrong name on the check there was no evidence of fraud.

An intent to defraud is an essential element of forgery. However, it is not essential that any person be actually defrauded or that any act be done other than the fraudulent making or altering of the instrument. State v. Hall, 108 N.C. 776, 13 S.E. 189.

Here the State's evidence to the effect that defendant, without the payee's authorization or consent, endorsed the payee's name to the check and negotiated the check was sufficient to repel defendant's motion for judgment as of nonsuit. See State v. Coleman, 253 N.C. 799, 117 S.E.2d 742.

The decision of the Court of Appeals is Reversed.