State v. Ross , 369 N.C. 393 ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 297PA15
Filed 21 December 2016
STATE OF NORTH CAROLINA
v.
TERRANCE JAVARR ROSS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 776 S.E.2d 897
(2015), vacating a judgment entered on 5 August 2014 by Judge James W. Morgan in
Superior Court, Cleveland County, and remanding for further proceedings. Heard in
the Supreme Court on 17 May 2016 in session in the Old Burke County Courthouse
in the City of Morganton pursuant to N.C.G.S. § 7A-10(a).
Roy Cooper, Attorney General, by Kathleen N. Bolton, Assistant Attorney
General, for the State-appellant.
Peter Wood, for defendant-appellee.
BEASLEY, Justice.
We consider whether the Court of Appeals erred by vacating the judgment
entered by the trial court—which was entered according to the terms of the parties’
plea agreement—on grounds that defendant’s plea was not entered knowingly and
voluntarily. For the reasons stated herein, we reverse the decision of the Court of
Appeals.
On 22 September 2008, a grand jury indicted defendant on two counts of
STATE V. ROSS
Opinion of the Court
possession of a firearm by a felon. Defendant alleges that on 14 October 2010, while
he was incarcerated in another county on unrelated charges, he filed a motion under
N.C.G.S. § 15A-711(c)1 in Superior Court, Cleveland County, to proceed with the
possession of firearms charges. Defendant also alleges that in April 2013 he filed a
pretrial motion to dismiss due to the State’s failure to request that defendant be
produced for trial within the six months after defendant’s motion to proceed.2 On 5
August 2014, the matter came on for hearing in Superior Court, Cleveland County.
Defendant entered an Alford plea of guilty to two counts of possession of a firearm by
a convicted felon. At that time, the State and defendant agreed to the following terms
of the plea arrangement:
In exchange for pleas of guilty to two counts of
possession of a firearm by a convicted felon, the State
1 Defendant filed this alleged motion pursuant to N.C.G.S. § 15A-711(c). Section 15A-
711 delineates the procedures for securing attendance at hearings and trials of criminal
defendants who are incarcerated in institutions within the State. Subsection 15A-711(c)
provides that “[a] defendant who is confined in an institution in this State pursuant to a
criminal proceeding and who has other criminal charges pending against him” may file a
written request “with the clerk of the court where the other charges are pending” to “require
the prosecutor prosecuting such charges to proceed pursuant to this section.” A copy of
defendant’s request must be served upon the prosecutor, and “[i]f the prosecutor does not
proceed pursuant to subsection (a) within six months from the date the request is filed with
the clerk, the charges must be dismissed.” N.C.G.S. § 15A-711(c) (2015).
2 The record does not contain any file stamped copy of defendant’s alleged section 15A-
711 motion or motion to dismiss, and thus it is unclear whether any pretrial motions were
ever filed. The record does include two documents addressed to Mr. Rick Beam regarding
defendant’s purported motion to dismiss, which are dated 10 September 2013 and 16
September 2013, respectively. Neither document is file stamped by the Clerk of Superior
Court’s office and neither appears to have been filed. An internet search shows that Rick
Beam is an attorney practicing in Gaston, Cleveland, and Lincoln Counties, North Carolina.
The record does not indicate the nature of Mr. Beam’s relationship with defendant.
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Opinion of the Court
agrees to consolidate the charges into one Class G felony
for sentencing with the defendant receiving an active
sentence of 24 - 29 months[.]
The State further agrees to dismiss all remaining
charges pending against the defendant in Cleveland
County.
The sentence in these cases will run at the
expiration of any sentence being served.
After defendant tendered his guilty plea before the trial court, the following
colloquy occurred among defendant, defense counsel, and the trial court:
[DEFENSE COUNSEL]: . . . You can see from the
transcript [defendant] has a lot of irons in the fire over here
in Cleveland County, Your Honor. That’s why we chose to
go forward today. He feels that given all he has going on,
even though there may be some holes in this case that
would have benefited him at trial, the big picture he feels
it’s in his best interest to resolve these matters in this
fashion even though he’s serving a lengthy sentence, and
this will add time to that. He’s prepared to accept that
responsibility to get the benefit of clearing all these cases
up. We’d ask you to accept the plea based on that, Your
Honor. . . .
....
THE DEFENDANT: Your Honor, I just want to go
on record saying that I had previously filed a 15 7 -- 15A
711 request, and then I followed up with a motion that was
never answered with the Court, and I feel like due to that
fact, it’s in my best interest to plead guilty today.
[DEFENSE COUNSEL]: The motion was never
heard, Your Honor. I think that’s what he’s saying. Given
the uncertainty of it, he feels it’s in his best interest to go
forward in this fashion, Your Honor.
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Opinion of the Court
THE COURT: So you’re abandoning whatever was –
THE DEFENDANT: No. I just want to put on record
that it was made for appeal purposes. They can’t say that I
abandoned the whole issue with the motion. I’m saying
that I filed it previously, then I brought it up with the
motion that was never answered by the Court.
THE COURT: What are you talking about? A speedy
trial motion?
THE DEFENDANT: No. It’s just a motion to
proceed.
THE COURT: Oh, I see what you’re saying.
THE DEFENDANT: Yes.
THE COURT: Okay.
THE DEFENDANT: I had filed them previously
within 180 days, and they didn’t comply so I filed a motion
to dismiss which was never heard. So after it’s been so long
-- at this time, that’s my best option to just go on and plead
guilty. I’ll pursue that later on. I just want to leave that.
THE COURT: Well, I don’t know for certain, but the
fact that you’re proceeding now, you may not be able to
proceed on that issue.
THE DEFENDANT: If that’s the choice, I just want
to have it on record. If that’s the choice -- if I can’t later on,
I just wanted to put it on there just in case later on in the
process, they don’t say that I didn’t bring it up before I was
sentenced.
THE COURT: Okay.
[DEFENSE COUNSEL]: I explained that to him as
well, Your Honor, take whatever, if anything happens, it
happens. If it doesn’t, it doesn’t.
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Opinion of the Court
THE COURT: Okay. All right. With all that, it’s
still your choice to go ahead?
[THE DEFENDANT]: Yes. Yes, sir.
THE COURT: All right. I just wanted to make sure
that was clear.
(Emphases added). The trial court accepted defendant’s guilty plea and sentenced
him to twenty-four to twenty-nine months in prison. Defendant gave notice of appeal
the same day he entered his guilty plea.3
On 15 August 2014, defendant filed a pro se motion for appropriate relief in the
trial court arguing that the trial court lacked jurisdiction over defendant and the
subject matter of the case. Specifically, defendant argued that because the State
failed to proceed as required by N.C.G.S. § 15A-711(c) after his written request to do
so, the charges against him should have been dismissed. In its 18 August 2014
written order, which was entered on 20 August 2014, the trial court denied
defendant’s motion for appropriate relief, concluding that defendant waived all claims
3 The State filed a Motion to Dismiss defendant’s appeal. The Court of Appeals
dismissed the appeal because defendant had no right of appeal from the trial court’s
acceptance of his guilty plea. See N.C.G.S. § 15A-1444 (2015) (enumerating the limited
circumstances in which a defendant who pleads guilty has a right to appeal).
In support of his purported appeal as of right, defendant asserted before the Court of
Appeals that the trial court committed prejudicial error when it accepted his guilty plea to
two counts of possession of a firearm by a felon because the evidence only supported one
conviction of possession of a firearm by a felon. Additionally, he asserted that the trial court
committed prejudicial error when it failed to dismiss the charges against him after the State
failed to writ him to Cleveland County within six months of his section 15A-711 motion.
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Opinion of the Court
he may have had under section 15A-711 when he entered his guilty plea; that it had
jurisdiction over defendant; and that defendant’s constitutional and statutory rights
were not violated by the entry and acceptance of his guilty plea. The record does not
indicate that defendant noted an appeal from the denial of his motion for appropriate
relief.
On 27 February 2015, defendant petitioned for writ of certiorari to the Court
of Appeals. In his petition defendant argued that: (1) there was an insufficient factual
basis to support a plea of guilty on one of his charges; and (2) the trial court should
have dismissed the charges on the basis that the State violated N.C.G.S. § 15A-711
and erred in its denial of his post-conviction motion for appropriate relief based on
the State’s violation of section 15A-711.
The Court of Appeals allowed defendant’s petition for writ of certiorari to
review the question of whether defendant entered his guilty plea voluntarily and
knowingly. State v. Ross, ___ N.C. App. ___, 776 S.E.2d 897, 2015 WL 4620517 (2015)
(unpublished). Although the parties did not brief the issue of whether defendant’s
plea was entered knowingly and voluntarily, the Court of Appeals reasoned that it is
proper to issue this extraordinary writ when the voluntariness of a defendant’s plea
is in question and the defendant made a motion for appropriate relief in an effort to
preserve matters to be heard after trial.
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Opinion of the Court
In its opinion the Court of Appeals cited its previous holding that “a guilty plea
entered pursuant to a transcript of plea which purports to reserve the right to seek
appellate review” of an issue not subject to review after the entry and acceptance of
the plea “does not result in the entry of a plea which ‘is a product of informed choice.’
” Ross, 2015 WL 4620517, at *1 (quoting State v. Tinney, 229 N.C. App. 616, 624, 748
S.E.2d 730, 736 (2013) (quoting N.C.G.S. § 15A-1022(b))). The Court of Appeals
further explained that “the entry of a plea conditioned on the appealability of non-
appealable matters does not result in the entry of a voluntary plea.” Id. (citing State
v. Demaio, 216 N.C. App. 558, 562, 716 S.E.2d 863, 866 (2011)). After reviewing the
plea hearing transcript, the Court of Appeals held that defendant conditioned his plea
on the appealability of the failure to grant his section 15A-711 motion; therefore, the
plea “was not entered knowingly and voluntarily.” Id. at 2. The Court of Appeals,
accordingly, vacated the trial court’s judgment and remanded for further proceedings.
Id. This Court allowed discretionary review on 28 January 2016.
In its brief to this Court, the State requested that we review whether the Court
of Appeals erred when it vacated the trial court’s judgment on the grounds that
defendant’s plea was not entered knowingly and voluntarily. This Court reviews the
decision of the Court of Appeals to determine whether the decision contains any error
of law. E.g., State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994) (citations
omitted).
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Opinion of the Court
The exchange among defendant, defense counsel, and the trial court during the
plea colloquy—a portion of which is set out above—does not indicate that defendant’s
guilty plea was conditionally entered so as to preserve the right for pretrial motions
to be heard at a later time. When considered in its entirety, the transcript of the plea
hearing does not demonstrate that defendant believed his plea was conditioned on
the right to seek review of any pretrial motion. Defendant pleaded guilty
understanding that the right to appeal any claims he may have raised before the trial
court was not preserved and was therefore waived. The trial court warned defendant
that he “may not be able to proceed on [the motions],” thereby waiving certain rights
by entering his guilty plea. Defendant indicated multiple times that he understood
the trial court’s explanation regarding the waiver of certain rights. Defendant also
signed the transcript of plea form, which indicated that there were limitations on his
right to appeal. See State v. Agnew, 361 N.C. 333, 335, 643 S.E.2d 581, 583 (2007)
(“Because a guilty plea waives certain fundamental constitutional rights such as the
right to a trial by jury, our legislature has enacted laws to ensure guilty pleas are
informed and voluntary.”); see also State v. Reynolds, 298 N.C. 380, 395, 259 S.E.2d
843, 852 (1979) (“When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.” (quoting Tollett v. Henderson, 411 U.S.
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Opinion of the Court
258, 267, 36 L. Ed. 2d 235, 243 (1973))), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795
(1980).
Furthermore, defendant acknowledged that the plea arrangement as set forth
in the transcript of plea was his “full plea arrangement.” Unlike Demaio, on which
the Court of Appeals relied, the terms and conditions of the parties’ plea agreement
in this case did not attempt to preserve the right to appellate review of a non-
appealable matter. In Demario the defendant’s plea agreement expressly provided
that he preserved the right to appeal the denial of certain pretrial motions. 216 N.C.
App. at 560-61, 716 S.E.2d at 865. But the defendant had no appeal as of right as a
result of his guilty plea and waived the right to seek review of these claims at a later
time by pleading guilty. Thus, the defendant had no means to take advantage of the
plea arrangement to which he agreed. Id. at 561-65, 716 S.E.2d at 865-68. In that
case the Court of Appeals explained that because the defendant entered a guilty plea
on the condition that he preserved the right to appeal a non-appealable matter, his
plea was not voluntary. Id. at 564-65, 716 S.E.2d at 867-68. Here, however,
defendant’s plea agreement was not conditioned on the right to appeal a non-
appealable matter. The only terms and conditions set forth in the parties’ plea
agreement are the following:
In exchange for pleas of guilty to two counts of
possession of a firearm by a convicted felon, the State
agrees to consolidate the charges into one Class G felony
for sentencing with the defendant receiving an active
sentence of 24 - 29 months[.]
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Opinion of the Court
The State further agrees to dismiss all remaining
charges pending against the defendant in Cleveland
County.
The sentence in these cases will run at the
expiration of any sentence being served.
Defendant’s plea agreement was not conditioned on anything else. Additionally,
unlike Demaio, in which the defendant was never advised that a provision in his plea
agreement was invalid, the trial court here informed defendant that he may not be
able to seek appellate review of any failure to grant certain pretrial motions, and
defendant indicated to the trial court that he understood he waived his rights. See
Tinney, 229 N.C. App. at 622, 748 S.E.2d at 735 (holding that the defendant was “not
entitled to relief from the trial court’s judgment on the basis of the principle
enunciated in Demaio” because the defendant “had ample notice” that if he proceeded
with the guilty plea it was not likely that he could obtain review of an order
transferring his case from district court to superior court). Defendant does not allege
that he conditioned his guilty plea on the right to appeal the failure to grant his
section 15A-711 motion, and at the hearing defendant and defense counsel
specifically told the trial court that defendant wanted to move forward with the plea
agreement because it was in defendant’s best interest. Accordingly, we hold that
defendant entered his guilty plea knowingly and voluntarily.
Further, the Court of Appeals found it appropriate to grant defendant’s
petition for writ of certiorari only on the issue of whether defendant’s plea was
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Opinion of the Court
knowing and voluntary, and not on the two issues raised by defendant in his petition
for writ of certiorari. The decision concerning whether to issue a writ of certiorari is
discretionary, and thus, the Court of Appeals may choose to grant such a writ to
review some issues that are meritorious but not others for which a defendant has
failed to show good or sufficient cause. See Womble v. Moncure Mill & Gin Co., 194
N.C. 577, 579, 140 S.E. 230, 231 (1927) (“Certiorari is a discretionary writ, to be
issued only for good or sufficient cause shown, and it is not one to which the moving
party is entitled as a matter of right.” (citations omitted)). As such, the two issues
that defendant raised in his petition for writ of certiorari to the Court of Appeals have
not survived that court’s decision to allow the writ for the limited purpose of
considering the voluntariness of his guilty plea. Specifically, defendant did not
appeal the trial court’s denial of his motion for appropriate relief; he is not entitled to
appeal his guilty plea; if he did file a section 15A-711 motion, any challenge to the
failure to grant it did not survive his guilty plea; and defendant cannot now challenge
the sufficiency of the factual basis for his plea deal.
Because we conclude that defendant pleaded guilty knowingly and voluntarily,
we therefore reverse the decision of the Court of Appeals vacating defendant’s guilty
plea and the resulting judgment.
REVERSED.
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