State v. Blandford , 66 N.C. App. 348 ( 1984 )

311 S.E.2d 338 (1984)

STATE of North Carolina
v.
Royston D. BLANDFORD, III.

No. 834SC108.

Court of Appeals of North Carolina.

February 7, 1984.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., James Peeler Smith, Raleigh, for the State.

Norman B. Kellum, Jr. and Robert S. Pierce, New Bern, for defendant-appellant.

JOHNSON, Judge.

Defendant's primary contention is that since at the time of his sentencing his co-defendants were neither charged with nor convicted of conspiracy, the court could not lawfully sentence him on his plea of guilty to the conspiracy charge. Therefore, he argues, it erred in refusing to allow him to withdraw his plea. He relies on State v. Littlejohn, 264 N.C. 571, 142 S.E. 132 (1965) for the proposition that at least two persons must be convicted of conspiracy, otherwise all must be acquitted. However, Littlejohn requires only that where co-defendants are tried together and all but one are acquitted, then that one cannot be convicted of conspiracy solely on his own admission. The Supreme Court took care to make clear that circumstances could arise under which a single defendant may be convicted of conspiracy. Id. at 574, 142 S.E.2d at 135. We believe this is such a circumstance; under the unusual procedural facts of the case, the State was proceeding as quickly as possible against the co-defendants and ultimately obtained convictions. No finding of fact tantamount to a jury's acquittal ever was made with respect to them. Therefore, withdrawal of the plea was not required. We also note that the great weight of authority supports our holding. See Annot., 19 A.L.R. 4th 192, 211-24 (1983). Furthermore, withdrawal of a plea of guilty after its acceptance by the court is not a matter of right, but is addressed to the sound discretion of the trial court. State v. Wynn, 278 N.C. 513,180 S.E.2d 135 (1971); State v. Elledge, 13 N.C.App. 462, 186 S.E.2d 192 (1972). Under the circumstances of the case, it is clear that the court did not abuse its discretion.

Defendant alleges various evidentiary failings. G.S. § 15A-1022(c) does require the court to determine that there is a factual basis for the plea. The record on appeal does not contain a transcript of the proceedings at which the court accepted the plea on 25 August 1982. However, the hearing on the judgment conducted 27 September 1982 indirectly indicates that the court found a factual basis for the entry of the plea. To raise the issue of the sufficiency of the evidence to support that finding on appeal, defendant must preserve the record for appeal. Where the record is silent we will presume the trial court acted correctly. State v. Fennell, 307 N.C. 258, 297 S.E.2d 393 (1982). The prosecutor's statement at the sentencing hearing indicates that the State did have sufficient evidence to support its case. We find no error.

Defendant next contends the court erred in not making findings of fact in denying his motion to withdraw the plea. G.S. § 15A-1420(c) clearly requires such findings only where an evidentiary hearing is necessary or where constitutional violations are asserted. Such is not the case here.

Defendant also contends that the court erred by denying his motion to continue the sentencing hearing. Such a motion is addressed to the discretion of the trial judge who may grant it on good cause. G.S. § 15A-1334(a); State v. McLaurin, 41 N.C.App. 552, 255 S.E.2d 299 (1979), cert. denied, 300 N.C. 560, 270 S.E.2d 113 (1980). We agree with the trial court that defendant had ample notice of the scheduled sentencing hearing, but tried instead to turn it into a hearing on his motion to withdraw the plea filed at the beginning of the hearing. The court did not abuse its discretion in denying a continuance.

Defendant has brought forward several other assignments of error, but we find them also to be without merit. We conclude that the proceedings below were free from prejudicial error, and that the court's order must therefore be

Affirmed.

VAUGHN, C.J., and WELLS, J., concur.