THE STATE OF NORTH CAROLINA v. GREGORY LAMONT MONROE

On 14 September 2015, defendant was indicted for trafficking in opium or

heroin (possessing more than 28 grams) in violation of N.C. Gen. Stat. § 90-95(h);

trafficking in opium or heroin (transporting more than 28 grams) in violation of N.C.

Gen. Stat. § 90-95(h); possessing with intent to sell and deliver heroin (more than 28

grams) in violation of N.C. Gen. Stat. § 90-95(a)(1); possessing heroin in violation of

N.C. Gen. Stat. § 90-95(a)(3); trafficking in opium or heroin (possessing 4 grams or

more but less than 14 grams) in violation of N.C. Gen. Stat. § 90-95(h); and trafficking

in opium or heroin (transporting 4 grams or more but less than 14 grams) in violation

of N.C. Gen. Stat. § 90-95(h).

On 8 November 2016, defendant’s case was heard in the Randolph County

Superior Court before the Honorable W. Erwin Spainhour. Defendant, proceeding

pro se with standby counsel, entered a guilty plea to all charges.

On 8 November 2016, defendant was sentenced to consecutive terms of 25 to

282 months and 70 to 93 months.

On 14 November 2016, defendant filed a form entitled “Request For Services”

with the Randolph County Clerk’s Office. In the form, defendant stated as follows:

“I would like to Appeal my case due to the fact that I signed my name with ‘under

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duress’ up under it making the contract voidable and invalit [sic] therefore this time

I received is no good.” Defendant requested a new court date.

On 17 November 2016, defendant filed a document entitled, “ ‘AFFIDAVIT’

NOTICE OF APPEAL[,]” stating the he “would like to appeal the plea bargan do [sic]

to the fact it was made under duress.” Defendant also argued, among other things,

that he was denied due process and equal protection, Judge Spainhour had committed

fraud, his sentence should be vacated, and his case should be dismissed.

The record contains documents from defendant entitled “Motion to Withdraw

Plea” and “DEFENDANT AFFIDAVIT OF FACT” in which he contends that his

guilty plea was made under duress. On 22 November 2016, the trial court entered

an order stating that defendant had sent this motion and affidavit to the Office of the

Senior Resident Superior Court Judge of Judicial District 19-B. The order provided

that although the documents were filed 22 November 20161, the court was uncertain

what date the documents were received and that the accompanying envelope was

postmarked 15 November 2016. The order denied defendant’s motion to withdraw

his guilty plea.

The record also contains a document file-stamped on 28 November 2017 and

entitled “NOTICE OF APPEAL” wherein defendant argues that he was not given

equal protection or due process, Judge Spainhour violated his oath of office, defendant

1 The record on appeal has a file stamp date of 23 November 2016 on the “Motion to Withdraw Plea.”

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was threatened “with force of restraint[,]” and he was under duress when signing his

guilty plea.

II. Discussion



Defendant presents two issues on appeal. First, defendant argues that the

trial court erred in accepting his guilty plea when it was not supported by a sufficient

factual basis. Second, defendant contends that the trial court erred by denying his

motion to withdraw his guilty plea.

A. Factual Basis for Guilty Plea



Defendant argues that the trial court erred by accepting his guilty plea where

there was an insufficient factual basis for the plea, in violation of N.C. Gen. Stat. §

15A-1022(c)2. Specifically, defendant contends that there was insufficient evidence

to establish the identity of the controlled substances and to support the statutory

weights for four of the charges. Defendant also argues that defendant’s stipulations

were insufficient to establish a factual basis.

We first address the motions that are before our panel. On 10 July 2017,

defendant filed a petition for writ of certiorari for review of this issue. Defendant also

stated that he was filing the petition in the event that our Court finds his pro se notice

2 N.C. Gen. Stat. § 15A-1022(c) (2015) provides: “The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to: (1) A statement of the facts by the prosecutor. (2) A written statement of the defendant. (3) An examination of the presentence report. (4) Sworn testimony, which may include reliable hearsay. (5) A statement of facts by the defense counsel.”

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of appeal to be defective for failing to indicate that he was appealing to our Court in

violation of Rule 4(b) of the North Carolina Rules of Appellate Procedure. On

14 August 2017, the State filed a motion to dismiss defendant’s appeal. As to

defendant’s first issue, the State argues that defendant’s right to appeal is precluded

by N.C. Gen. Stat. § 15A-1444 and defendant’s guilty plea.

“In North Carolina, a defendant’s right to appeal in a criminal proceeding is

purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d

867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). A defendant “does

not have an appeal as a matter of right to challenge the court’s acceptance of his

guilty plea.” State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987).

However, “our Supreme Court has held that when a trial court improperly accepts a

guilty plea, the defendant may obtain appellate review of this issue only upon grant

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

(2011) (internal quotation marks and citation omitted). “A petition for the writ must

show merit or that error was probably committed below. Certiorari is a discretionary

writ, to be issued only for good and sufficient cause shown.” State v. Rouson, 226 N.C.

App. 562, 563-64, 741 S.E.2d 470, 471 (citing State v. Grundler, 251 N.C. 177, 189,

111 S.E.2d 1, 9 (1959)), disc. review denied, 367 N.C. 220, 747 S.E.2d 538 (2013).

We find State v. Kimble, 141 N.C. App. 144, 539 S.E.2d 342 (2000), disc. review

denied, __ N.C. __, 548 S.E.2d 150 (2001), to be dispositive here. In Kimble, the

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defendant argued on appeal that the trial court erroneously entered judgment against

him for eight counts of solicitation to commit first-degree murder because there was

an insufficient factual basis for his guilty plea, in violation of N.C. Gen. Stat. § 15A

1022(c). In the alternative, the defendant argued that the State’s factual narrative

only supported one solicitation. Id. at 147, 539 S.E.2d at 344. Our Court noted that

the defendant did not object during the plea hearing to the State’s summary of the

factual basis for these charges, the defendant did not argue before the trial court that

only one count of solicitation was supported by a sufficient factual basis, and the

defendant’s motion to withdraw his guilty plea after entry of judgment did not include

an insufficient factual basis argument. Id. Citing to the North Carolina Rules of

Appellate Procedure, our Court held that because the issue on appeal was not raised

before the trial court, it was not properly before this Court. Id. at 147, 539 S.E.2d at

345.

We find the circumstances in the present case analogous to those found in

Kimble. After defendant’s charges were read to him, defendant, proceeding pro se,

repeated the phrase that he “accept[ed] the value of the charges[]” and “accept[ed]

the value of the whole proceeding[]” multiple times. Defendant then stated that he

waived a jury trial and that he would “take whatever is given to me.” The trial court

interpreted defendant’s communications as a waiver of a jury trial and an election of

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a bench trial. After the State called on four witnesses, the following exchange

occurred:

[Defendant]: . . . I mean, what was the purpose of me pleading guilty if I still got to go through this? I thought I wouldn’t have to go through this.



THE COURT: Well, you’re having – you don’t have to go through it in front of a jury, see? You’ve – you’ve taken away a jury trial. Just – just don’t – just relax and listen to the evidence, okay?



. . . .



[Defendant]: Can’t I just plead guilty –



. . . .



[Defendant]: I can’t just accept the guilt and get it over with and you give me time and I’m gone back to prison?



THE COURT: No.



[Defendant]: You can’t do it like that? I mean, I –



THE COURT: All right, let’s do it this way ----



[Defendant]: God.



THE COURT: Just do you stipulate – I just think that I – I ought to hear this evidence. You don’t want me to hear this evidence?



[Defendant]: No, you don’t have to hear it; just go ahead and find – sentence me.



The trial court then read through each of defendant’s charges and asked defendant if

he stipulated, agreed, and admitted to the elements of the offenses. Defendant

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replied in the affirmative to each charge. Like the Kimble defendant, at no time

during the plea hearing did defendant argue that the factual basis for the entry of

judgment against him on all the charges were insufficient. Rather, defendant

continuously interrupted the trial court’s attempt to provide a factual basis and

insisted that the court move on to sentencing. In addition, defendant’s motion to

withdraw his plea was not based on the argument of an insufficient factual basis to

support his plea. Assuming arguendo that we granted defendant’s petition, the issue

would not be properly before us due to his failure to raise this argument to the trial

court. Accordingly, defendant’s 10 July 2017 petition for writ of certiorari is denied.

B. Denial of Motion to Withdraw Guilty Plea



In his second argument, defendant contends that the trial court erred by

denying his motion to withdraw his guilty plea following sentencing.

In the State’s 14 August 2017 motion to dismiss the appeal, the State asserts

that our Court does not have jurisdiction to review the trial court’s denial of

defendant’s motion to withdraw his guilty plea due to lack of notice of appeal. In

response, on 28 August 2017, defendant filed a second petition for writ of certiorari

to review the trial court’s 22 November 2016 order denying defendant’s motion to

withdraw his guilty plea.

“When a defendant seeks to withdraw a guilty plea after sentencing, his motion

should be granted only where necessary to avoid manifest injustice.” State v. Suites,

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109 N.C. App. 373, 375, 427 S.E.2d 318, 320, disc. review denied, 333 N.C. 794, 431

S.E.2d 29 (1993).

Some 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.



State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 163 (1990) (internal citations

omitted).

Because defendant’s motion to withdraw his plea was made post-sentence, it

is properly treated as a motion for appropriate relief. Id. at 536, 391 S.E.2d at 161.

“A defendant who seeks relief by motion for appropriate relief must show the

existence of the asserted ground for relief. Relief must be denied unless prejudice

appears . . . .” N.C. Gen. Stat. § 15A-1420(c)(6) (2015).

Defendant argues that the trial court should have granted his motion to

withdraw his plea because it was made under duress and was based on a

misunderstanding of the law. We are not persuaded.

Defendant asserts that he was threatened to be “tide [sic] and gagged” by the

trial court judge and thus, his plea was made under duress. The record demonstrates

that defendant was uncooperative and unresponsive throughout the entire

8 November 2016 hearing. The trial court stated that if defendant continued to be

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disruptive, it would have no choice but to force defendant to have a seat, “to have you

bound and gagged[.]” Nevertheless, when the trial court attempted to proceed to trial

and jury selection, defendant was initially unresponsive and then stated that he was

pleading guilty and “accept[ing] the value” of the charges and of the whole proceeding.

When asked if he waived his right to a jury trial, defendant stated, “I waive a jury

and accept the value of the whole proceeding[.]” As explained above, the trial court

interpreted this to mean that defendant desired a bench trial. When it was time for

defendant’s opening statement, he stated that he desired to “just plead guilty or

whatever and get it over with.” Defendant asserted that he wished to make an Alford

guilty plea. After four of the State’s witnesses were called to testify, defendant

interrupted the proceedings again and specifically requested that he wanted to plead

guilty and move onto sentencing. Therefore, we find no evidence that defendant made

his guilty plea under duress as the trial court attempted to proceed to trial and it was

defendant who insisted on pleading guilty.

As to defendant’s argument that he misunderstood the law, the record includes

a completed and signed Transcript of Plea form and the transcript reveals that the

trial court made a careful inquiry of defendant regarding the plea. Our Court has

held these two things to be sufficient to demonstrate that the plea was entered into

freely, understandingly, and knowingly. See State v. Russell, 153 N.C. App. 508, 511,

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570 S.E.2d 245, 248 (2002); State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274,

277 (1998).

Considering the foregoing reasons, defendant is unable to establish manifest

injustice and unable to show that the trial court erred by denying his motion to

withdraw his guilty plea. Thus, the 28 August 2017 petition for writ of certiorari

cannot show merit and is denied. The State’s motion to dismiss appeal is granted.

Defendant’s 10 July 2017 and 28 August 2017 petitions for writ of certiorari

are denied. The State’s 14 August 2017 motion to dismiss appeal is granted.

APPEAL DISMISSED.