STATE OF NORTH CAROLINA v. ROBERT LEE BAKER, JR.

On 15 August 2012, defendant, a former Winston-Salem police officer, was

charged with two counts of obtaining property by false pretenses, with the offenses

committed between 17 June 2011 and 27 July 2012. These charges arise out of

numerous instances over a period of months relating to defendant’s practice of billing

and receiving payment for off-duty security jobs that he did not actually work. For

instance, on 27 July 2012, defendant billed several hours of work to the Winston

Salem Housing Authority and Development Management when, as determined by a

Winston-Salem detective, defendant was actually at home. After the detective

confronted defendant, he confessed to leaving off-duty locations early while still

billing hours for the work. The Winston-Salem Police Department determined that

defendant engaged in this behavior from at least June 2011 through 27 July 2012.

Pursuant to N.C. Gen. Stat. § 7A-272(c), defendant pled guilty in district court

on 1 February 2013 to two counts of obtaining property by false pretenses in exchange

for the State entering into a deferred prosecution arrangement with him. The district

court accepted and recorded defendant’s guilty plea by a transcript of plea.

Defendant’s plea arrangement specifically stated: “The Defendant will be allowed to

participate in the Deferred Prosecution program. If he successfully completes the

program, the charges will be dismissed. If he does not successfully complete [the]

program, judgment will be entered.” The district court completed and filed a deferred

prosecution form, placing defendant on supervised probation for 12 months and

requiring him to complete 50 hours of community service during the first 180 days of

the deferral period. The trial court then continued the case until 30 January 2014

and adjourned the proceedings.

On 29 August 2013, defendant’s probation officer filed a violation report

alleging that defendant had violated the terms of the deferred prosecution agreement.

The report alleged that defendant had violated the following conditions of his

probation: (1) defendant failed to make payments towards the amount due for court

costs, restitution, and a community service fee, (2) defendant failed to make any

payments towards his monthly probation fee, and (3) defendant had been charged

with carrying a concealed gun, first degree burglary, and communicating threats. In

addition, the report noted that “the defendant signed an agreement and order to

participate in the deferred prosecution program on 2/1/2013. A requirement of such

agreement is not to commit any criminal offenses. On 8/14/13 the defendant was

charged and arrested for first degree burglary, carrying cocealed [sic] gun (M) and

communicating threats file number 13CR058335 as well as robbery with a dangerous

weapon, second degree kidnapping, and impersonate [sic] law enforcement file

number 13CR058338.”

Defendant’s probation violation case was called in Forsyth County District

Court on 2 October 2014. On the same day, defendant filed a “Motion to Set Aside

Plea Entry” in which he asserted that “the act of the Court in accepting the guilty

plea and ordering it recorded removed any such authority from the state” to dismiss

the charges. This result, defendant asserted, rendered the deferred prosecution

agreement “null and void” because it “deprived the defendant of the benefit of his

bargain making the plea therefor not a knowing and voluntary one.”

At the hearing, defendant’s counsel objected to the entry of judgment and

argued that defendant’s guilty plea should be set aside on the grounds set forth in the

motion. The trial court, classifying defense counsel’s arguments as an objection,

“overruled” this objection and subsequently consolidated the two charges of obtaining

property by false pretenses for judgment, sentencing defendant to a presumptive

range term of nine to 20 months imprisonment. Defendant timely appealed to this

Court. In addition, defendant has also filed a petition for writ of certiorari.

Basis for Appellate Jurisdiction

Before addressing the merits of defendant’s appeal, we first must examine

whether we have jurisdiction to hear his appeal from district court, whether

defendant has a proper appeal as a matter of right to this Court, and, if not, whether

to grant his petition for writ of certiorari. The State contends that defendant’s appeal

and his petition for writ of certiorari should be dismissed.

Generally, “[t]he superior court has ‘exclusive, original jurisdiction’ to try

defendants accused of felonies.” State v. Bell, 121 N.C. App. 700, 701, 468 S.E.2d 484,

485 (1996) (quoting N.C. Gen. Stat. § 7A-271(a) (1995)). However, “[w]ith the consent

of the presiding district court judge, the prosecutor, and the defendant, the district

court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H

or I felony . . . .” N.C. Gen. Stat. § 7A-272(c) (2015). Also, generally, “[a]ppeals by . . .

the defendant from the district court are to the superior court.” N.C. Gen. Stat. § 7A

271(b) (2015). On the other hand, N.C. Gen. Stat. § 7A-272(d) specifies that

“[p]rovisions in Chapter 15A of the General Statutes apply to a plea [of guilty to a

Class H or I felony] as if the plea had been entered in superior court, so that a district

court judge is authorized to act in these matters in the same manner as a superior

court judge would be authorized to act if the plea had been entered in superior court,

and appeals that are authorized in these matters are to the appellate division.”

(Emphasis added.)

The State argues that this Court does not have jurisdiction over defendant’s

appeal, citing State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004). In Hooper, the

Supreme Court held that N.C. Gen. Stat. § 7A-272(d), which allows appeal directly to

the Court of Appeals, applies only to appeals from guilty pleas and does not apply to

appeals from decisions in district court revoking probation. 358 N.C. at 125, 591

S.E.2d at 516. The Court concluded, id., that for probation revocation appeals, a

defendant must appeal to superior court pursuant to N.C. Gen. Stat. § 15A-1347(a)

(2015), which provides: “[W]hen a district court judge, as a result of a finding of a

violation of probation, activates a sentence or imposes special probation, the

defendant may appeal to the superior court for a de novo revocation hearing.”

However, our Supreme Court emphasized that N.C. Gen. Stat. § 7A-272(d) “expressly

governs a separate and distinctly different situation -- an appeal from a plea to a

Class H or I felony taken in district court.” Hooper, 358 N.C. at 125, 591 S.E.2d at

516.

Although defendant sought to have his motion to set aside his guilty plea heard

at a probation revocation hearing in district court, defendant is not appealing the

revocation of his probation, but rather is appealing the denial of his motion to set

aside his guilty plea. Consequently, N.C. Gen. Stat. § 15A-1347 is not applicable to

this appeal. Rather, we hold that N.C. Gen. Stat. § 7A-272(d) applies and, therefore,

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the provisions of Chapter 15A determine whether we have jurisdiction to hear

defendant’s appeal.

Whether defendant’s motion to set aside his guilty plea is a proper motion to

withdraw a guilty plea or whether this motion is a collateral attack on the judgment

of the trial court, which would be properly presented pursuant to a motion for

appropriate relief (“MAR”) is the next issue we will address. See State v. Handy, 326

N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (“A motion to withdraw a guilty plea made

before sentencing is significantly different from a post-judgment or collateral attack

on such a plea, which would be by a motion for appropriate relief.”). However,

appellate review of both types of motions is governed by N.C. Gen. Stat. § 15A-1444

(2015). See N.C. Gen. Stat. §15A-1444(e) (authorizing appeal of denial of motion to

withdraw guilty plea), § 15A-1444(f) (providing that denial of MAR may be reviewed

by writ of certiorari). Because N.C. Gen. Stat. § 7A-272(d) authorized the district

court to hear either type of motion in the same manner as a superior court judge, §

7A-272(d) further provides that appeals from decisions on those motions “are to the

appellate division.” Review of the denial of defendant’s motion, regardless how

classified, is, therefore, properly sought in this Court.

Defendant’s Right to Appeal and Petition for Writ of Certiorari

Criminal defendants have a statutorily limited right to appeal. State v.

Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002) (“[A] defendant’s right to

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appeal in a criminal proceeding is purely a creation of state statute.”). When a

criminal defendant enters a plea of guilty, his right to appeal is limited even further

to only certain circumstances. One of those circumstances occurs where a defendant’s

motion to withdraw his guilty plea is denied. N.C. Gen. Stat. § 15A-1444(e).

At first glance, it would seem that defendant here has moved to withdraw his

guilty plea and that the district court’s denial of his motion provides defendant an

appeal of right to this Court. However, as our Supreme Court explained in Handy:

“A motion to withdraw a guilty plea made before sentencing is significantly different

from a post-judgment or collateral attack on such a plea, which would be by a motion

for appropriate relief.” 326 N.C. at 536, 391 S.E.2d at 161 (emphasis added). The

Supreme Court concluded that the timing of the filing of the motion to withdraw a

guilty plea was critical because “[a] fundamental distinction exists between situations

in which a defendant pleads guilty but changes his mind and seeks to withdraw the

plea before sentencing and in which a defendant only attempts to withdraw the guilty

plea after he hears and is dissatisfied with the sentence.” Id.

Accordingly, whether defendant has an appeal as of right pursuant to N.C.

Gen. Stat. § 15A-1444(e) hinges on whether we can consider defendant’s “Motion to

Set Aside Plea Entry” a proper pre-sentence motion to withdraw or whether this

motion is more akin to a post-sentence MAR. The key factor in deciding this question

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is the fact that the district court required defendant to enter a transcript of plea on a

Form AOC-CR-300 and then accepted his plea of guilty.

“ ‘Undeniably, a defendant is considered to be convicted by the entry of his plea

of guilty just as if a jury had found a verdict of guilty against him . . . .’ ” State v.

Oakley, 75 N.C. App. 99, 103, 330 S.E.2d 59, 62 (1985) (quoting United States v. Hecht,

638 F.2d 651, 657 (3d Cir. 1981)). See also State v. Shrader, 290 N.C. 253, 262, 225

S.E.2d 522, 529 (1976) (“A plea of guilty, when accepted, [is] the equivalent of a

conviction . . . .”); State v. Shelly, 280 N.C. 300, 301, 185 S.E.2d 702, 703 (1972) (per

curiam) (“The plea of guilty is equivalent to a conviction of the offense charged.”).

While the act of accepting defendant’s guilty plea amounted to defendant’s conviction,

the deferred prosecution agreement was akin to sentencing. Thus, we must, pursuant

to the principles set out in Handy, consider defendant’s subsequent motion to set

aside his guilty plea at the probation revocation hearing an MAR. Consequently,

given that defendant’s motion is not a proper pre-sentence motion to withdraw his

guilty plea, he does not have an appeal as of right pursuant to N.C. Gen. Stat. § 15A

1444(e).

However, defendant has filed a petition for writ of certiorari, requesting that

we exercise our discretion to review the merits of his appeal. Rule 21(a)(1) of the

Rules of Appellate Procedure specifically gives this Court discretion to “review

pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion

STATE V. BAKER

Opinion of the Court

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for appropriate relief.” We find defendant’s claim that the agreement he entered into

with the State was not a product of informed choice provides a sufficient basis upon

which to exercise this discretion. We, therefore, grant defendant’s petition for writ of

certiorari and review his arguments on appeal.

As a final matter, we address the State’s argument that “[b]ecause the trial

court did not rule on Defendant’s [motion to set aside his plea], this issue is not

preserved for our review.” State v. Hall, 203 N.C. App. 712, 716, 692 S.E.2d 446, 449

(2010). The State relies on the fact that the district court did not deny defendant’s

motion by oral or written order, but instead “overruled” defendant’s objection at the

probation revocation hearing. The district court’s choice of words -- “overruled” as

opposed to “denied” -- does not alter the fact that the district court rejected

defendant’s arguments set forth in his motion to set aside his plea. Consequently,

the trial court’s ruling is properly before this Court.

Motion to Set Aside Guilty Plea

Turning to the merits of defendant’s appeal, defendant contends that the

district court erred by accepting his deferred prosecution agreement while

simultaneously recording his guilty plea, therefore depriving him of the possibility of

ever having the charges against him dismissed upon the successful completion of his

probation. Defendant argues that his plea was, therefore, “improperly accepted

because it was not the product of informed choice and did not provide him the benefit

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of his bargain . . . .” State v. Demaio, 216 N.C. App. 558, 562, 716 S.E.2d 863, 866

(2011). Whether defendant was deprived of the benefit of his plea bargain is a

question of law that we review de novo. Id. at 564, 716 S.E.2d at 867.

The transcript of plea accepted by the district court sets out the plea

arrangement and identifies a key term of that arrangement as being deferral of the

prosecution of defendant’s Class H felony charge pursuant to N.C. Gen. Stat. § 15A

1341(a1) (2015). N.C. Gen. Stat. § 15A-1341(a1), the applicable “Deferred

Prosecution” statute, provides that “[a] person who has been charged with a Class H

or I felony or a misdemeanor may be placed on probation as provided in this Article

. . . .” Generally, a deferred prosecution agreement results in a defendant’s

“admission of responsibility” as described on an AOC-CR-610 “Motion/Agreement and

Order to Defer Prosecution” Form, or an acknowledgement of “guilt in fact,” but this

admission or acknowledgement does not amount to a guilty plea. See State v. Ross,

173 N.C. App. 569, 574, 620 S.E.2d 33, 37 (2005) (“The acknowledgment of guilt

contained in the transcript of the [deferred prosecution] agreement, without more, is

insufficient to raise the legal inference that a guilty plea was entered and accepted.”),

aff’d per curiam, 360 N.C. 355, 625 S.E.2d 779 (2006).

Pursuant to a deferred prosecution agreement, if a defendant complies with

the terms of his probation, his charges will be dismissed. N.C. Gen. Stat. § 15A

1342(i) (2015); N.C. Gen. Stat. § 15A-931(a) (2015). However, if a defendant violates

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the terms of his probation, and thus breaches his deferred prosecution agreement,

the trial court, pursuant to N.C. Gen. Stat. § 15A-1344(d) (2015), “may order that

charges as to which prosecution has been deferred be brought to trial[.]” (Emphasis

added.)

In this case, defendant did not only enter into a deferred prosecution

agreement, but he was also, as part of his plea arrangement, required to plead guilty.

While not squarely on point, this Court’s decision in Ross illustrates the inherent

inconsistency of combining a guilty plea and a deferred prosecution agreement as

occurred in this case. In Ross, the defendant, a president of a corporation, failed to

pay the corporation’s quarterly employee withholding taxes and was eventually

charged with five counts of misdemeanor failure to file or failure to pay withholding

tax. 173 N.C. App. at 570-71, 620 S.E.2d at 35. Rather than try these charges,

defendant and the State entered into a deferred prosecution agreement. Id. at 571,

620 S.E.2d at 35. Although as part of that agreement the defendant acknowledged

his guilt in fact to these charges, he did not enter a guilty plea and the trial court did

not accept a guilty plea. Id. at 574, 620 S.E.2d at 37.

When the defendant later breached the terms of the deferred prosecution

agreement, the State voluntarily dismissed the five misdemeanor charges and

pursued more serious charges of aiding and abetting in the embezzlement of State

property and obtained a conviction of defendant on those charges. Id. at 571, 620

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S.E.2d at 35-36. In an effort to avoid the more serious punishment arising out of that

conviction, the defendant argued on appeal that the State was precluded from

pursuing the more serious offenses on double jeopardy grounds because he had

already entered his guilty plea for the misdemeanor charges. Id. at 572, 620 S.E.2d

at 36. The defendant did not contend “that jeopardy would attach in every instance

where a criminal defendant enters into a deferred prosecution[,]” but rather argued

“that under the terms of his deferred prosecution agreement, a plea of guilty was

contemplated and accepted by the trial court.” Id. at 573, 620 S.E.2d at 36.

On appeal, this Court held that the defendant’s acknowledgement of guilt in

the deferred prosecution agreement was not a de facto guilty plea accepted by the

trial court and, therefore, jeopardy had not yet attached. Id. at 574, 620 S.E.2d at 37.

Furthermore, this Court explained the contemplated deferred prosecution procedure:

“[I]f the State pursued the original misdemeanor charges against defendant after he

failed to complete the program, he would have had the opportunity to obtain a jury

trial by pleading not guilty.” Id. at 573-74, 620 S.E.2d at 37 (emphasis added).

In this case, however, because defendant had already pled guilty pursuant to

a transcript of plea and the trial court accepted that plea, the trial court could not

follow through with the procedure anticipated by N.C. Gen. Stat. § 15A-1342(i): either

(1) upon failure to complete the program, an opportunity to plead not guilty and a

jury trial, or (2) upon successful completion of the program, dismissal of the charges.

STATE V. BAKER

Opinion of the Court

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In this case, as in any case in which a defendant has pled guilty, the “ ‘defendant is

considered to be convicted by the entry of his plea of guilty[,]’ ” Oakley, 75 N.C. App.

at 103, 330 S.E.2d at 62 (quoting Hecht, 638 F.2d at 657), and after entry of a guilty

plea, “the court has power: (1) To pronounce judgment and place it into immediate

execution; (2) to pronounce judgment and suspend or stay its execution; (3) to

continue prayer for judgment.” State v. Griffin, 246 N.C. 680, 682, 100 S.E.2d 49, 50

(1957).

Here, the trial court did not continue prayer for judgment because it imposed

community service requirements upon defendant pursuant to defendant’s deferred

prosecution agreement. See State v. Brown, 110 N.C. App. 658, 659, 430 S.E.2d 433,

434 (1993) (“When, however, the trial judge imposes conditions amounting to

punishment on the continuation of the entry of judgment, the judgment loses its

character as a PJC and becomes a final judgment.” (internal quotation marks

omitted)); State v. Popp, 197 N.C. App. 226, 228, 676 S.E.2d 613, 614 (2009) (holding

“[c]onditions amounting to punishment” include fines and community service

requirements (internal quotation marks omitted)). Upon imposition of conditions

amounting to punishment, a trial court’s judgment is “transformed into a final

judgment.” Id., 676 S.E.2d at 615.

Thus, in this case, on 1 February 2013, upon the trial court’s accepting

defendant’s guilty plea -- which resulted in defendant’s conviction of the charges --

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Opinion of the Court

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and imposing conditions amounting to punishment, the court entered a final

judgment. Once a final judgment is entered, a court has authority to vacate that

judgment only “pursuant to a writ of habeas corpus or pursuant to a motion for

appropriate relief.” Id. at 229, 676 S.E.2d at 615. Consequently, in Popp, this Court

held that once a trial court entered judgment imposing conditions amounting to

punishment, the court “was without authority to dismiss the charge” in a subsequent

order. Id.

Likewise, in this case, because the trial court’s order to defer prosecution was

entered following acceptance of defendant’s guilty plea and amounted to a final

judgment, there could no longer be a dismissal of the charges against defendant if he

complied with the deferred prosecution agreement. Id. Because defendant’s plea

agreement provided that “[t]he prosecutor will take a voluntary dismissal upon

compliance with this Agreement,” but dismissal of these charges was not possible on

account of defendant’s accepted guilty plea, defendant’s plea agreement “was not the

product of informed choice and did not provide him the benefit of his bargain . . . .”

Demaio, 216 N.C. App. at 562, 716 S.E.2d at 866.

These circumstances are analogous to State v. Jones, 161 N.C. App. 60, 588

S.E.2d 5 (2003), rev’d in part on other grounds, 358 N.C. 473, 598 S.E.2d 125 (2004).

In Jones, the defendant entered a guilty plea on the condition that he would be able

to appeal the trial court’s rulings on his petition for writ of habeas corpus, motion to

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Opinion of the Court

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suppress, and motion to dismiss. Id. at 61, 588 S.E.2d at 7. However, as this Court

explained, “[a]lthough defendant specifically conditioned his entire plea agreement

on appellate review, . . . defendant’s right to appeal [was] limited to the motion to

suppress evidence and [did] not provide for review of the other motions.” Id. “Since

defendant [was] entitled to the benefit of his bargain,” the Court vacated his guilty

plea and remanded the case to the trial court to allow defendant to proceed to trial or

negotiate another plea. Id. at 61, 63, 588 S.E.2d at 7, 8.

Similarly, here, because defendant did not receive the benefit of his bargain in

entering his plea arrangement, his plea “was not the product of informed choice,”

Demaio, 216 N.C. App. at 564, 716 S.E.2d at 867, and the district court erred in

denying defendant’s motion to set aside his guilty plea. Accordingly, we reverse the

trial court’s denial of defendant’s motion to set aside his guilty plea, vacate

defendant’s guilty plea, vacate the judgment based on that guilty plea, and “remand

the case to the trial court, placing defendant back in the position he was in before he

struck his bargain: he may proceed to trial or attempt to negotiate another plea

agreement.” Jones, 161 N.C. App. at 63, 588 S.E.2d at 9.

We note that it is now possible for the State and a defendant to enter into a

plea arrangement comparable to the one agreed to in this case. The deferred

prosecution statute was amended to allow for a “Conditional Discharge” and provides:

“Whenever a person pleads guilty to or is found guilty of a Class H or I felony or a

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misdemeanor, the court may, on joint motion of the defendant and the prosecutor,

and without entering a judgment of guilt and with the consent of the person, defer

further proceedings and place the person on probation as provided in this Article for

the purpose of allowing the defendant to demonstrate the defendant’s good conduct .

. . .” N.C. Gen. Stat. § 15A-1341(a4). This amendment had an effective date of 1

December 2014, 2014 N.C. Sess. Ch. 119, § 2, and, therefore, does not apply to this

case.

We need not decide defendant’s remaining arguments challenging his sentence

and whether he validly consented to the district court’s jurisdiction as provided in N.C. Gen. Stat. § 7A-272(c) because those issues are now moot. See In re Swindell, 326 N.C. 473, 474, 390 S.E.2d 134, 135 (1990) (“ ‘[A]s a general rule this Court will not hear an appeal when the subject matter of the litigation . . . has ceased to exist.’ ” (quoting Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968))). With respect to the district court’s jurisdiction, defendant will on remand have the opportunity to

again decide whether to consent to the district court’s jurisdiction.

REVERSED, VACATED, AND REMANDED.