State v. Marsh

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-808
Filed: 4 June 2019
Cumberland County, No. 15CRS063852
STATE OF NORTH CAROLINA
v.
BOYD DOUGLAS MARSH, Defendant.
Appeal by Defendant from judgment entered 29 November 2017 by Judge
Claire V. Hill in Cumberland County Superior Court. Heard in the Court of Appeals
13 March 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott
Stroud, for the State.
Kimberly P. Hoppin for the Defendant.
DILLON, Judge.
Defendant Boyd Douglas Marsh appeals the trial court’s denial of his motion
to withdraw his guilty plea. Alternatively, he appeals the sentence imposed by the
trial court, alleging that it was inconsistent with the sentence outlined in his plea
agreement with the State. After careful review, we vacate the trial court’s judgment
and remand for further proceedings.
I. Background
STATE V. MARSH
Opinion of the Court
Defendant was charged with multiple counts of rape, kidnapping, and a
number of related offenses, involving multiple victims and occurring between 1998
and 2015. In March 2017, Defendant was tried by a jury.
On the third day of trial, Defendant negotiated a plea agreement with the State
whereby he pleaded guilty to a number of offenses. Based on the plea agreement,
Defendant would receive a single, consolidated active sentence of two hundred ninety
(290) to four hundred eight (408) months imprisonment.
Over the next four weeks, and prior to sentencing, Defendant wrote two letters
to the trial court. In them, he proclaimed his innocence to some of the charges and
suggested his desire to withdraw from his plea agreement. The trial court
acknowledged receipt of the letters and forwarded them to Defendant’s attorney.
Several months later, in November 2017, Defendant appeared before the trial
court for sentencing. During the hearing, he formally moved to withdraw his guilty
plea. The trial court denied Defendant’s motion. The trial court, then, proceeded
with sentencing. Though the plea agreement called for a single, consolidated
judgment imposing a single sentence, the trial court entered two judgments, one for
the 2015 offenses and one for the 1998 offenses, based on the fact that the sentencing
grid in use in 1998 was different from the grid in use in 2015. Specifically, the trial
court entered a judgment, sentencing Defendant to a term of two hundred ninety
(290) to four hundred eight (408) months for the 2015 offenses, a sentence which
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STATE V. MARSH
Opinion of the Court
matched the sentence Defendant agreed to in his plea agreement with the State. And
for the 1998 offenses, the trial court entered a separate judgment with a slightly
shorter sentence of two hundred eighty-eight (288) to three hundred fifty-five (355)
months imprisonment. The trial court did, though, order that the two sentences
would run concurrently, such that Defendant would not actually serve any longer
than contemplated in his plea agreement with the State.
Defendant gave oral notice of appeal in open court.1
II. Analysis
Defendant makes two arguments on appeal. First, Defendant argues that the
trial court erred by denying his motion to withdraw his guilty plea prior to being
sentenced. Defendant made it known to the trial court quickly that he did not like
the plea agreement into which he had entered. But his attorney did not formally
move on his behalf to withdraw the plea until much later. Our Supreme Court has
instructed that a defendant’s burden is low when his motion is made soon after
entering his plea. See State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 162-63
1 Defendant’s oral notice of appeal adequately preserved his arguments with respect to the
trial judge’s denial of his motion to withdraw his guilty plea. See N.C. R. App. P. 4(a). However,
Defendant failed to object to any portion of the trial judge’s sentencing at trial, and further did not
make any reference to sentencing procedures in his notice of appeal. Contemporaneous with this
appeal, Defendant filed a motion for writ of certiorari asking that we address his arguments as to
sentencing despite errors in preservation. We elect to grant Defendant’s motion to reach the merits of
Defendant’s appeal.
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STATE V. MARSH
Opinion of the Court
(1990). In any event, because we conclude that Defendant is entitled to relief based
on his second appellate argument, we do not need to decide this first issue.
In his second argument, Defendant contends that the trial court erred in
imposing a sentence inconsistent with the sentence set out in his plea agreement
without informing Defendant that he had a right to withdraw his guilty plea. For the
following reasons, since we conclude that the concurrent sentences imposed by the
trial court differed from the single sentence agreed to by Defendant in his plea
agreement, we agree with Defendant.
Section 15A-1024 of our General Statutes provides that a defendant must be
informed and allowed to withdraw his plea where the sentence to be imposed differs
from what was agreed upon:
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.
N.C. Gen. Stat. § 15A-1024 (2017) (emphasis added).
Here, Defendant’s plea arrangement for all his 1998 and 2015 offenses which
stated, in relevant part, that Defendant would “receive a consolidated active sentence
of 290 to 408 months.” The trial court judge, though, determined that Defendant’s
1998 offenses fell under a different sentencing grid than his 2015 offenses, where the
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STATE V. MARSH
Opinion of the Court
1998 offenses warranted lesser minimum and maximum sentences. In an apparent
effort to accommodate this difference, the judge entered two separate, but concurrent,
sentences.
The State contends that, though the sentences entered were objectively
different than the sentence described in the plea agreement, any possible error was
harmless because the judge’s sentence was practically the same. That is, the time
Defendant will serve under the concurrent sentences is the same as he would have
served if he had received the single sentence contemplated in his agreement with the
State.
Much of our precedent where relief has been granted under Section 15A-1024
involves instances where the sentence imposed by the judge was significantly
different from or more severe than that agreed upon in the defendant’s plea
agreement.2 However, our precedent is clear that any change by the trial judge in
the sentence that was agreed upon by the defendant and the State, even a change
benefitting the defendant, requires the judge to give the defendant an opportunity to
withdraw his guilty plea. For instance, our Supreme Court has suggested the
2See e.g., State v. Puckett, 299 N.C. 727, 730-31, 264 S.E.2d 96, 98-9 (1980) (vacating the trial
court’s sentence because the court inappropriately sentenced the defendant to two consecutive two-
year sentences, inconsistent with the plea deal agreeing to a sentence of no more than two years total);
State v. Carricker, 180 N.C. App. 470, 471-72, 637 S.E.2d 557, 558-59 (2006) (vacating the trial court’s
sentence because it revoked the defendant’s nursing license, where her plea agreement did not include
license revocation); State v. Rhodes, 163 N.C. App. 191, 195, 592 S.E.2d 731, 733 (2004) (vacating the
sentence because the trial court sentenced the defendant to an active sentence of twenty-one (21) to
twenty-six (26) months incarceration, inconsistent with the plea agreement for a sentence of twenty-
one (21) to twenty-six (26) months incarceration to be suspended for three years).
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STATE V. MARSH
Opinion of the Court
meaning of Section 15A-1024 to include situations where the sentence imposed is
merely “different from” the sentence agreed to:
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.
State v. Williams, 291 N.C. 442, 446-47, 230 S.E.2d 515, 517-18 (1976) (emphasis
added).
And our Court has held that Section 15A-1024 is implicated even where the
sentence imposed may be more favorable to the defendant that that which he had
agreed to. State v. Wall, 167 N.C. App. 312, 316, 605 S.E.2d 205, 208 (2004). In Wall,
the trial judge sentenced the defendant to a sentence less than the sentence described
in the defendant’s plea agreement. Id. Our Court held that the plain language of
Section 15A-1024 applied when any sentence “different from” the plea agreement was
imposed and vacated the defendant’s judgment accordingly. Id. at 317-18, 605 S.E.2d
at 208-09. Further, in Wall, we noted that the Official Commentary to Section 15A-
1024 demonstrates that our General Assembly intended for the statute “to apply if
there is any change at all concerning the substance[]” of the sentence imposed,
rejecting to use the phrase “more severe than” in the statutory language. Wall, 167
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STATE V. MARSH
Opinion of the Court
N.C. at 316, 605 S.E.2d at 208 (quoting N.C. Gen. Stat. § 15A-1024) (emphasis
added)).
We conclude that the two separate judgments/sentences imposed by the trial
judge are different than the single, consolidated judgment/sentence that Defendant
had agreed to. See State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247
(2002) (“A plea agreement is treated as contractual in nature[.]”). Though the total
amount of time served in the concurrent sentences is materially the same as the
single consolidated sentence in Defendant’s plea agreement, Defendant is still liable
for two separate judgments and two separate sentences. This is not what he agreed
to. And, for example, if for any reason one of the judgments was later vacated,
Defendant would still be left with an outstanding judgment and corresponding
sentence.
We recognize that, ordinarily, “[a] judgment will not be disturbed because of
sentencing procedures unless there is a showing of abuse of discretion, procedural
conduct prejudicial to defendant, circumstances which manifest inherent unfairness
and injustice, or conduct which offends the public sense of fair play.” State v. Pope,
257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962). However, our review of the case law
shows no instances where a harmless or prejudicial error standard has been applied
in cases involving Section 15A-1024, as plea arrangements are contractual in nature.
III. Conclusion
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STATE V. MARSH
Opinion of the Court
We hold that the trial court was required to inform Defendant of his right to
withdraw his guilty plea pursuant to Section 15A-1024. We, therefore, must vacate
the trial court’s judgments and remand the matter for further proceedings consistent
with this opinion. Since Defendant was entitled to withdraw his plea based on the
sentencing, we conclude that Defendant is no longer bound by the plea arrangement;
but neither is the State. See Puckett, 299 N.C. at 731, 264 S.E.2d at 99 (remanding
under Section 15A-1024 with instructions “that the judgments of the trial court be
vacated, that defendant's plea of guilty be stricken, and that the cases be reinstated
on the trial docket”). On remand, the State and Defendant are, of course, free to enter
into a new plea arrangement.
VACATED AND REMANDED.
Judges BRYANT and ARROWOOD concur.
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