State v. Alston ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1285
Filed: 5 November 2019
Randolph County, Nos. 16CRS1115, 52524
STATE OF NORTH CAROLINA
v.
JAQUAIL DONAVEN ALSTON, Defendant.
Appeal by Defendant from judgment entered 8 March 2018 by Judge V.
Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals
18 September 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Cooley Law Office, by Craig M. Cooley, for Defendant-Appellant.
DILLON, Judge.
Defendant Jaquail Donaven Alston appeals from a judgment convicting him of
felony serious injury by vehicle (“FSIBV”). We affirm.
I. Background
In April 2017, a grand jury indicted Defendant for FSIBV, driving while
impaired, and driving while license revoked. Eleven months later, in March 2018,
Defendant pleaded guilty to the FSIBV charge and the other two charges were
dropped, as part of a plea agreement.
STATE V. ALSTON
Opinion of the Court
Defendant petitioned our Court for a writ of certiorari to review whether the
prosecutor’s factual basis presented to the trial court was not sufficient. We grant
certiorari to consider the merits of Defendant’s appeal.
II. Analysis
Defendant alleges that the factual basis put forth by the prosecutor was
insufficient to warrant an informed decision by the trial court. Our General Assembly
has provided that “[t]he judge may not accept a plea of guilty or no contest without
first determining that there is a factual basis for the plea” but that “[t]his
determination may be based upon . . . a statement of facts by the prosecutor[.]” N.C.
Gen. Stat. § 15A-1022(c) (2018). See State v. Atkins, 349 N.C. 62, 95-97, 505 S.E.2d
97, 118-19 (1998) (concluding that the prosecutor’s factual summary was sufficient to
allow the trial court to accept a defendant’s guilty plea).
Here, after the trial judge read the plea transcript to Defendant, the prosecutor
gave the following factual summary:
This matter occurred on [25 May 2016], Your Honor. It was
investigated by the highway patrol. On that date, Your
Honor, they received a call at 3 o’clock in the morning, Your
Honor. The vehicle had a one car accident. It had veered
off the road and struck a tree and then flipped over, Your
Honor, on I-73.
When they arrived there, there were three individuals,
Your Honor, a male, female and small child, I believe at the
time was an infant, five months or so. The EMTs, Your
Honor, had taken the individuals to the hospital. At the
hospital, Your Honor, Mr. Alston was acting erratically –
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STATE V. ALSTON
Opinion of the Court
unresponsive and acting erratically, so they drew the
blood, Your Honor. The EMT noted to the hospital that he
was the driver.
When they actually questioned him, Your Honor, when he
was responsive, he did say he was the driver. At the
hospital, blood was drawn. He was then released. . . . His
girlfriend was there with her baby, Your Honor. The baby
was injured and flown to another hospital. His wife then
said, “No, no, I was the driver.” She gave a statement that
she was distracted by her cell phone or so and that she was
the driver.
There was a little argument between the two. He told her,
why are you lying in front of the trooper, etc. So the
charges stayed with him, Your Honor. Like I said, the EMT
noticed that he was the driver. He was the initial person
that said he was the driver. So, that being said, the reason
we bring that to your attention, Judge, is that we have
limited contact with her, obviously, for those.
Some of the stuff came back, no impact statement. We did
finally track her down through Mr. Evans, as far as a phone
number, just to clarify that she did not want to be here, and
she said the child was doing fine now. So, just as far as
that information. His blood was sent off to the lab, Your
Honor. It came back positive for Alprazolam and
Benzodiazepine. Those two narcotics were in his system,
Judge. And that would be all, Judge.
The trial judge then asked defense counsel if there was anything more that he wanted
to add. Defense counsel answered that he did not wish to change any of the
information put forth by the prosecutor and that “[Defendant] does have a two-year
old daughter, and one of the reasons he wanted to go ahead and try and go on
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STATE V. ALSTON
Opinion of the Court
probation is so he can get out, go back to work and start taking care of his child. . . .
So we just ask Your Honor to accept the plea.”
On appeal, Defendant claims that it was unclear from the prosecution’s factual
summary whether he was under the influence while driving and whether the infant
sustained serious injury. He claims the prosecutor needed to provide more evidence
to the trial judge to prove these elements of the charge. However, the prosecutor need
not “find evidence from each, any, or all of the enumerated sources.” Atkins, supra.
These elements could reasonably be inferred. Specifically, it could be inferred from
the prosecutor’s description of drug components being found in Defendant’s blood that
Defendant was driving under the influence. And it could be inferred from the
prosecutor’s statement that the child victim had to be transferred to another hospital
for care that the child sustained serious injury. Thus, the information given by the
prosecutor for the case’s factual basis was sufficient.
III. Conclusion
For the aforementioned reasons, we affirm the lower court’s ruling that finds
the factual basis to support the guilty plea.
AFFIRMED.
Judge BROOK concurs.
Judge TYSON dissents by separate opinion.
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No. COA18-1285 – State v. Alston
TYSON, Judge, dissenting.
I vote to deny Defendant’s petition for writ of certiorari in the exercise of
discretion and precedents, and to grant the State’s motion to dismiss his appeal. I
respectfully dissent.
I. Petition for Writ
Defendant has “petitioned this Court for certiorari. A petition for the writ must
show merit or that error was probably committed below. In re Snelgrove, 208 N.C.
670, 672, 182 S.E. 335. Certiorari is a discretionary writ, to be issued only for good
and sufficient cause shown. Womble v. Gin Company, 194 N.C. 577, 579, 140 S.E.
230.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959). See also State v.
Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016) (reversing grant of certiorari by
the Court of Appeals on defendant’s challenge of sufficiency of factual basis of plea:
“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”).
Defendant entered a guilty plea pursuant to a plea arrangement with the State
on one count of felony serious injury by vehicle. In exchange, the State dismissed both
the remaining charges of driving while impaired and driving while license revoked.
The trial court suspended the sentence and placed Defendant on supervised
probation.
STATE V. ALSTON
TYSON, J., dissenting
The majority’s opinion details from the transcript the factual basis for his plea
and Defendant’s specifically addressing the trial court and declining to add to or
change the State’s factual summary for his plea. The trial court entered judgment in
accordance with the terms of the plea arrangement.
Defendant received the full benefit of his plea bargain and failed to place the
State or the trial court on any notice of any dissatisfaction or that he intended to seek
further review on appeal after judgment on his plea was entered. Defendant’s in-
court admission to the factual basis to support his guilty plea, acceptance of its
benefits, and his failure to provide or preserve any prior notice to the State and the
trial court precludes further review. For Defendant to now seek appellate review of
his guilty plea, with no showing of either merit or any prejudicial error, damages the
fairness and integrity of the plea bargaining process and violates long standing
precedents. See id.
The State may offer fewer binding plea bargains, if a defendant circumvents
the fairness requirement to inform the State of his intent to seek further review on
appeal. The State can expressly preclude such collateral back door actions by
requiring prior disclosure and waiver of appeal as an express condition of the plea
arrangement.
II. Conclusion
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STATE V. ALSTON
TYSON, J., dissenting
Defendant’s petition “must show merit or that error was probably committed
below.” Grundler, 251 N.C. at 189, 111 S.E.2d at 9. This standard mandates a writ
to be “issued only for good and sufficient cause shown.” Id. Absent Petitioner’s “must”
showing of “merit” or probable prejudicial “error,” there exists no “good and sufficient
cause shown to issue” the writ. Id. Defendant’s petition asserts no basis to allow and
is procedurally barred.
Defendant’s petition for a wholly discretionary writ is properly denied and the
State’s motion to dismiss his purported appeal is properly allowed. Ross, 369 N.C. at
400, 794 S.E.2d at 293. Defendant received the full benefit of his plea bargain and
did not disclose or preserve his intent to seek appellate review.
The majority’s opinion provides no basis whatsoever to allow Defendant’s
petition after his guilty plea, dismissal of other charges, being given a suspended
sentence and probation, particularly after his expressed agreement with the State’s
factual basis for his guilty plea. Allowing his petition under this facts is clearly
precluded under binding precedents. See id. I vote to deny Defendant’s petition for
writ of certiorari and allow the State’s motion to dismiss the appeal. I respectfully
dissent.
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