Edmondson v. State , 33 N.C. App. 746 ( 1977 )

MORRIS, Judge.

In its only assignment of error, the State contends that the judge at the post conviction hearing erred in overturning the trial judge’s finding that petitioner’s pleas of guilty were voluntarily given. The State bases this contention on the theory that once a guilty plea has been found by the trial judge to have been voluntarily given, it should not be subject to collateral attack. Thus, the sole question for consideration on this appeal is whether an adjudication by a trial judge that a plea of guilty is voluntarily made bars a criminal defendant from collaterally attacking that plea in a post conviction hearing.

This question has been effectively resolved by the recent case of Blackledge v. Allison,_U.S._, 52 L.Ed. 2d 136, 97 S.Ct. 1621 (1977). In that case, arising from North Carolina, the respondent was an inmate serving a 17 to 21 year sentence which had been imposed upon his plea of guilty to a charge of attempted bank robbery. He sought federal habeas corpus relief, alleging that his plea had been induced by a promise from his attorney that he would receive only a 10 year sentence in exchange for a guilty plea. He further alleged that his attorney instructed him to deny the existence of any promises to the trial court upon formal questioning at arraignment. The District Court dismissed the petition for habeas corpus, but the Fourth Circuit Court of Appeals reversed and held that respondent was entitled to an evidentiary hearing on the allegations. Allison v. Blackledge, 533 F. 2d 894 (4th Cir. 1976). On cer-tiorari, the U. S. Supreme Court affirmed respondent’s right to an evidentiary hearing on the grounds that “ ... a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ [of habeas corpus] in challenging the constitutionality of his custody.”_U.S. at_, 52 L.Ed. 2d at 146, 97 S.Ct. at 1628.

Although Blackledge involved federal post conviction proceedings for state prisoners pursuant to 28 U.S.C. §§ 2241-2254, we believe that the same constitutional principles apply to the present case, brought under G.S. 15-217 et seq. Accordingly, we hold that petitioner’s plea of guilty did not preclude him from subsequently asserting his claim at his post conviction hearing. Moreover, we believe the findings in the order of 15 December 1976 are amply supported in the record by competent evidence. The order is affirmed.

We deem it appropriate to comment upon a facet of Blackledge not directly applicable to the case before us for decision. The majority opinion in Blackledge noted that it was not the intent of the Court to hold that “every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.”.. U.S. at_, 52 L.Ed. 2d at 136, 97 S.Ct. at 1632. It was suggested that summary judgment procedure could be used “to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence.” Id. It is not our purpose to discuss here the pros and cons of such a procedure, but we do desire to point out that in our opinion it is not a practically appropriate procedure for use in this State in the post conviction procedure.

Affirmed.

Chief Judge Brock and Judge Britt concur.