State v. Whitehurst , 2017 N.C. App. LEXIS 311 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1021
Filed: 2 May 2017
Pasquotank County, No. 15 CRS 144
STATE OF NORTH CAROLINA, Plaintiff,
v.
ROCKY DARYL WHITEHURST, JR., Defendant.
Appeal by defendant from judgment entered 5 August 2015 by Judge J. Carlton
Cole in Pasquotank County Superior Court. Heard in the Court of Appeals 3 April
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith
Clayton, for the State.
Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.
ZACHARY, Judge.
Rocky Daryl Whitehurst, Jr. (defendant) appeals from the judgment entered
upon his entry of a plea of guilty to the offense of obtaining property by false
pretenses. On appeal, defendant argues that the trial court erred by denying his
motion to withdraw his guilty plea. We conclude that the trial court did not err by
denying his motion. Defendant also argues, and the State agrees, that the trial court
erred by ordering defendant to pay $200 in restitution when no evidentiary support
was offered for the amount of restitution. We conclude that the trial court erred in
entering its restitution award.
STATE V. WHITEHURST
Opinion of the Court
I. Background
On 9 March 2015, the Grand Jury for Pasquotank County returned an
indictment charging defendant with obtaining property by false pretenses and
possession of stolen property. Defendant was arrested for these offenses on 24 April
2015, and was placed in custody. On 8 June 2015, defendant appeared before the
trial court. Defendant asked to have counsel appointed to represent him on the
instant charges, and expressed a wish to resolve the case on that day if possible.
Accordingly, the trial court appointed counsel for defendant and held the case open.
Later that day, defendant again appeared before the court. Defendant’s
attorney informed the trial court that defendant would plead guilty to one count of
obtaining property by false pretenses, pursuant to a plea arrangement. The trial
court asked defendant the questions on the plea transcript form, and defendant
answered under oath. Defendant entered a plea of guilty pursuant to North Carolina
v. Alford, 400 U.S. 25, 37-39, 27 L. Ed. 2d 162, 171-72 (1970), which held that a
defendant may enter a guilty plea containing a protestation of innocence when the
defendant intelligently concludes that a guilty plea is in his best interest. Defendant
acknowledged that under the terms of the plea arrangement he would plead guilty to
one count of obtaining property by false pretenses and receive a probationary
sentence, and that the State would dismiss the charge of possession of stolen
property. After the plea transcript was completed, the prosecutor summarized the
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factual basis for the charge against defendant. Defendant did not object to the
prosecutor’s summary of the factual support for the charges. Prior to sentencing, the
trial court adjourned for the day. The next day, 9 June 2015, defendant appeared in
court for sentencing. His counsel asked for a continuance and the trial court
continued defendant’s sentencing until 5 August 2015.
On 3 August 2015, defendant filed a motion asking the trial court to allow him
to withdraw his plea of guilty. The trial court conducted a sentencing proceeding on
5 August 2015, at which defendant’s counsel asked the court to set aside defendant’s
plea. After hearing from defense counsel and the State, the trial court denied
defendant’s motion to withdraw his plea of guilty, sentenced defendant to a
suspended term of 8 to 19 months’ imprisonment, and placed defendant on 36 months
of supervised probation. Defendant appealed to this Court.
II. Denial of Defendant’s Motion to Withdraw Guilty Plea
A. Standard of Review
“In reviewing a trial court’s denial of a defendant’s motion to withdraw a guilty
plea made before sentencing, ‘the appellate court does not apply an abuse of discretion
standard, but instead makes an independent review of the record.’ ” State v. Robinson,
177 N.C. App. 225, 229, 628 S.E.2d 252, 254 (2006) (quoting State v. Marshburn, 109
N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993)). “There is no absolute right to
withdraw a plea of guilty, however, a criminal defendant seeking to withdraw such a
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plea before sentencing is ‘generally accorded that right if he can show any fair and
just reason.’ ” Marshburn, 109 N.C. App. at 107-08, 425 S.E.2d at 717 (quoting State
v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990)). “The defendant has the
burden of showing that his motion to withdraw is supported by some fair and just
reason.” Marshburn at at 108, 425 S.E.2d at 717 (internal quotation omitted). “There
is no established rule in North Carolina governing the standard by which a judge is
to decide a motion to withdraw a plea of guilty prior to sentencing.” Handy, 326 N.C.
at 538, 391 S.E.2d at 162. However:
[s]ome of the factors which favor withdrawal include
whether the defendant has asserted legal innocence, the
strength of the State’s proffer of evidence, the length of
time between entry of the guilty plea and the desire to
change it, and whether the accused has had competent
counsel at all relevant times. Misunderstanding of the
consequences of a guilty plea, hasty entry, confusion, and
coercion are also factors for consideration.
Handy at 539, 391 S.E.2d at 163.
B. Record on Appeal
It is well-established that “[t]he appellate courts can judicially know only what
appears of record.” State v. Price, 344 N.C. 583, 593, 476 S.E.2d 317, 323 (1996)
(internal quotation omitted). Thus, “[t]his Court’s review on appeal is limited to what
is in the record or in the designated verbatim transcript of proceedings. Rule 9(a),
N.C. Rules App. Proc. An appellate court cannot assume or speculate that there was
prejudicial error when none appears on the record before it.” State v. Moore, 75 N.C.
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Opinion of the Court
App. 543, 548, 331 S.E.2d 251, 254 (1985). In this case, defendant’s appellate
arguments are largely based upon certain assertions which, upon examination of the
record, we determine to be inaccurate. As a result, we find it necessary to clarify the
factual history of this case, as reflected by the record on appeal.
The transcript of defendant’s appearance in court on 8 June 2015 establishes
that defendant asked to have counsel appointed and expressed a wish to resolve the
pending charges that day if possible, as indicated in the following dialogue:
THE COURT: Mr. Whitehurst, your new court date will be
August 3rd.
DEFENDANT: Is there any way I can handle it today? I
was supposed to already have a lawyer.
PROSECUTOR: We can see if anyone is able to talk to Mr.
Whitehurst.
On appeal, defendant asserts that on 8 June 2015 he asked “if he could handle
his case that day, so he could get out of jail,” and that he “clearly stated when he was
brought to court on 8 June 2015, that he wanted to handle his case that day, so he
could get out of jail.” On the basis of these contentions, defendant argues that
defendant entered a plea of guilty “for the express purpose of getting out of jail” and
that there is “no doubt that [defendant] would not have entered a guilty plea” had he
not been in custody. (emphasis added). There is no support in the record for the
assertion that defendant informed the trial court that he wanted to resolve his case
promptly “so he could get out of jail.” A review of the transcript shows that defendant
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Opinion of the Court
neither mentioned the fact of his incarceration nor shared any other information
related to his motivation for seeking a prompt resolution of the charges against him,
and we disregard defendant’s appellate contentions to the contrary.
As discussed above, the proceedings concluded on 8 June 2015 after defendant
had pleaded guilty to obtaining property by false pretenses, but before defendant had
been sentenced. Defendant contends on appeal that the court recessed overnight
because defendant “objected as the State was presenting the factual basis for his
plea,” and that “[w]ith [defendant] disputing the factual basis for his plea, the trial
court decided to adjourn court for the day[.]” Defendant further asserts that “[w]hen
[defendant] disputed the factual basis for his plea, the court halted the proceedings
and ordered [defendant] returned to the jail until the following day.”
However, the record does not support this assertion. The transcript includes
no statements by defendant or his counsel indicating that defendant disputed the
accuracy of the prosecutor’s factual summary. We note that the prosecutor’s summary
included a recitation of items that had been stolen and were later sold to a pawn shop
by defendant and two codefendants. After the prosecutor listed the stolen objects, the
following dialogue took place:
PROSECUTOR: Two shovels, a Pepsi hat, toys and bottles,
a Pepsi thermometer and a Pepsi carton. And that would
be the showing.
THE COURT: Mr. Sellers?
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Opinion of the Court
DEFENSE COUNSEL: Yes, your Honor.
THE COURT: Anything as to the facts?
DEFENSE COUNSEL: Your Honor, Mr. Whitehurst was
aware of at least one thermometer. (indiscernible).
THE COURT: Bring him back tomorrow. Mr. Sheriff, if
you will adjourn us.
We discern nothing in this colloquy to indicate that defendant disputed the
State’s proffer of a factual basis for the charges. In fact, his counsel acknowledged
that defendant was “aware of at least one thermometer” among the stolen items. We
conclude that the record does not establish that defendant objected to the prosecutor’s
summary of the evidence and that the transcript does not indicate a specific reason
for the court’s decision to resume the proceedings on the following day. In considering
the merits of defendant’s appellate arguments, we will disregard his contention that
defendant objected to the State’s summary of the factual basis for the charges.
Defendant has also mischaracterized in two respects the proceedings that
occurred on 9 June 2015. First, defendant repeatedly states on appeal that when he
appeared in court on 9 June 2015, “the trial court refused to hear” his case because
he “was dressed inappropriately for court[,]” that he “was unable to enter the
courtroom due to being inappropriately dressed,” and that the trial court “would not
hear [his] motion on June 9, 2015, because [he] was not dressed appropriately for
court.” The transcript, however, reflects that at the outset of the hearing on 9 June
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Opinion of the Court
2015, defendant’s counsel noted that defendant was wearing shorts because he had
just been released from custody, and asked that the sentencing be continued. When
the prosecutor indicated that the parties might have a disagreement regarding the
amount of restitution, the trial court granted the continuance that had been
requested by defendant. The trial court neither “refused to hear” defendant’s
sentencing proceeding nor made any comment concerning defendant’s appearance.
This assertion is simply not supported by the record.
In addition, defendant repeatedly asserts that during defendant’s brief
appearance before the trial court on 9 June 2015, he “moved to withdraw his Alford
plea entered the previous day[.]” Defendant contends that he “promptly” moved to set
aside his plea, on the grounds that on the day after pleading guilty defendant
“immediately came to court and asked to withdraw his Alford plea[.]” However, a
review of the transcript of the court proceedings conducted on 9 June 2015 shows that
neither defendant nor his trial counsel asked to withdraw his guilty plea or made any
statements concerning defendant’s satisfaction with the terms of the plea
arrangement. In addition, the written motion for withdrawal of the guilty plea was
filed on 3 August 2015, approximately 55 days after defendant entered his plea,
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Opinion of the Court
rather than the next morning as defendant alleges. We conclude that there is no
evidence that defendant moved to withdraw his plea of guilty prior to 3 August 2015.1
In sum, the record establishes the following: (1) On 8 June 2015, defendant
expressed a desire to resolve the case on that day, but neither stated that he was
motivated by a wish to be released from jail nor indicated any other specific reason
for this course of action; (2) At the plea hearing conducted on 8 June 2015, defendant
did not object to the prosecutor’s summary of the factual support for the charges
against defendant; (3) On 9 June 2015, the trial court did not express an opinion
regarding defendant’s clothing or refuse to consider defendant’s sentencing hearing
because of defendant’s “inappropriate” attire; and (4) On 9 June 2015, defendant did
not move to withdraw his plea of guilty or make any other representation regarding
his satisfaction with the plea arrangement.
C. Discussion
On appeal, defendant argues that the trial court erred by denying his motion
to withdraw his plea of guilty on the grounds that at the hearing on 5 August 2015
he offered a “fair and just reason” for withdrawal. We disagree.
1 On 16 April 2016, eight months after defendant’s sentencing hearing, the trial court signed
a written order denying defendant’s motion to withdraw his guilty plea, which included a finding that
defendant moved to withdraw his guilty plea on 9 June 2015. We conclude that this finding, which is
contradicted by the transcript of the 9 June 2015 hearing, was erroneously included in the written
order.
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STATE V. WHITEHURST
Opinion of the Court
Defendant maintains that he “hastily entered his Alford plea while he was
under duress.” Defendant has not identified any evidence that his plea was entered
in haste and defendant does not dispute that he was arrested on the present charges
in April, 2015, and entered a plea of guilty more than a month later. We conclude
that there is no evidence that defendant’s plea was entered “hastily.” Defendant’s
assertion that he entered a plea “under duress” is supported solely by the fact that
defendant was in custody when he pleaded guilty. Defendant appears to suggest that
any guilty plea entered while a defendant is incarcerated is entered under duress,
because there is “no stronger form of coercion or duress than being held in jail against
one’s will.” Defendant cites no authority for the proposition that the fact that a
defendant is incarcerated is per se evidence of coercion, and we decline to adopt the
position proposed by defendant.
Defendant argues next that he “promptly moved to withdraw his Alford guilty
plea the next day” after its entry. We have concluded that the record shows that
defendant moved to withdraw his plea of guilty on 3 August 2015, rather than on “the
next day” after he pleaded guilty. On appeal, defendant does not explain his delay or
offer any argument that his motion of 3 August 2015 should be treated as one that
was made promptly after the entry of the plea. We conclude that defendant has failed
to establish any right to relief on the basis of the timing of his motion to withdraw his
plea of guilty.
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Opinion of the Court
Defendant also contends that the “State’s case against [him] was weak.” The
basis for this assertion is not entirely clear. On 8 June 2015, the prosecutor
summarized the factual basis for the charges against defendant. The prosecutor
stated that certain items were reported stolen by their owner; that defendant and two
others pawned the items in a local pawn shop; and that the items were recovered at
the pawn shop. The prosecutor’s summary, which defendant does not challenge,
indicates that the case against defendant was simple and straightforward.
Defendant does not identify evidentiary issues as to the identity of either the stolen
items or the individuals who pawned them, and does not contend that the case
presented complex legal or forensic issues. We conclude that defendant has failed to
effectively challenge the strength of the State’s evidence against him.
In addition, defendant maintains that he “asserted his legal innocence by
contesting the factual basis for his plea” and by entering an Alford plea. As discussed
above, there is no evidence that defendant challenged the factual basis for his plea.
Defendant also argues that his decision to enter an Alford guilty plea is evidence of
his assertion of innocence. Defendant supports this contention with a quotation from
State v. Chery, 203 N.C. App. 310, 314, 691 S.E.2d 40, 44 (2010), in which we held
that, for purposes of analyzing the defendant’s motion to withdraw his guilty plea,
“there is no material difference between a no contest plea and an Alford plea.”
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Opinion of the Court
However, in Chery this Court rejected the defendant’s argument that his entry of an
Alford plea established his assertion of legal innocence:
As one of the bases for his motion to withdraw his plea,
defendant relies heavily upon the fact that he entered a no
contest/Alford plea rather than pleading guilty to the
conspiracy charge. . . . [Defendant] assert[s] that his plea,
in and of itself, equated to a conclusive assertion of
innocence. . . . We hold the fact that the plea that defendant
seeks to withdraw was a no contest or an Alford plea does
not conclusively establish the factor of assertion of legal
innocence for purposes of the Handy analysis.
Chery, 203 N.C. App. at 314-15, 691 S.E.2d at 44. We conclude that defendant has
failed to show that he has asserted his legal innocence. As a result, we do not consider
this contention as a basis for withdrawal of his guilty plea.
Defendant also asserts that the withdrawal of his guilty plea would not have
prejudiced the State. However, defendant has not shown that the factors identified
in Handy support withdrawal of his plea, and we conclude that defendant has failed
to establish that he had a fair and just reason to withdraw his plea of guilty. “[T]he
burden does not shift to the State to show prejudice until the defendant has
established a fair and just reason existed to withdraw his plea. Because defendant
has failed to meet his burden of showing a fair and just reason existed to withdraw
his plea, we do not address prejudice against the State.” Chery, 203 N.C. App. at 318,
691 S.E.2d at 46-47 (citations omitted).
III. Restitution
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STATE V. WHITEHURST
Opinion of the Court
Defendant next argues, and the State agrees, that the trial court erred by
ordering him to pay restitution in the absence of any evidence to support the amount
of restitution. We conclude that this argument has merit.
“The amount of restitution recommended by the trial court must be supported
by evidence adduced at trial or at sentencing. The unsworn statement of the
prosecutor is insufficient to support the amount of restitution ordered.” State v.
Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (internal quotation and
citation omitted).
In this case, the trial court signed an order directing defendant to pay $200 in
restitution on 8 June 2015. No testimony was adduced as to the amount of restitution
on 8 June 2015, and the record does not include any other evidence, such as a sworn
affidavit, upon which the trial court could have based its restitution order. We
conclude that the restitution order must be vacated and remanded to the trial court.
III. Conclusion
For the reasons discussed above, we conclude that the trial court did not err by
denying defendant’s motion to withdraw his plea of guilty. We further conclude that
the trial court erred in entering its restitution order.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Chief Judge McGEE and Judge HUNTER concur.
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