Dawson v. State

Campbell, J.

A defendant, prior to the 1969 statute, G.S. 7A-451 (b) (4), did not have a right to an attorney at a preliminary hearing. State v. Gasque, 271 N.C. 323, 156 S.E. 2d 740 (1967), cert. denied, 390 U.S. 1030. This assignment of error is without merit.

It does not appear to this Court wherein the defendant has been prejudiced by the reduction of his sentence. The first sentence provided that the 3-year sentence for felonious assault was to begin at the end of a 5- to 7-year sentence for felonious breaking and entering. Thereafter, on motion of defendant’s counsel, a reduction was made in the first sentence so as to make it a 3- to 7-year sentence, rather than 5 to 7 years. There is no suggestion in this record that the sentences were ever to run concurrently, as defendant contends. This assignment of error is without merit.

Felonious breaking and entering is a lesser included offense to first-degree burglary. State v. Gaston, 4 N.C. App. 575, 167 S.E. 2d 510 (1969), cert. denied, 275 N.C. 500. This assignment of error is without merit.

The fourth matter presented to us for review was not presented to Judge Shaw. Nevertheless, we have considered the contention of the defendant to the effect that he was coerced into pleading guilty to felonious breaking and entering in order to avoid the possibility of the death penalty upon conviction of first-degree burglary. There is no merit in this position. The record discloses that the defendant freely, understandingly and voluntarily entered the plea of guilty before Judge Crissman on 3 June 1968. The Supreme Court of the United States handed down three opinions during the week of 4 May 1970 which set forth criteria for attacking a guilty plea as being involuntary. Brady v. United States, 38 L.W. 4366; Parker v. North Carolina, 38 L.W. 4371; McMann v. Richardson, 38 L.W. 4379. These cases hold that when a defendant has voluntarily authorized his attorney to enter a plea of guilty, he may not later attack the plea as being involuntary.

We have carefully reviewed the record in this case and find that the defendant has received a fair trial and a careful review upon a post-conviction hearing, and we find no error.

Affirmed.

PARKER and VaughN, JJ., concur.