State v. McGee , 244 N.C. App. 528 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-722
Filed: 15 December 2015
Forsyth County, No. 07 CRS 22500, 37901, 53099, 53100-01, 62549; 08 CR 053753-
54, 053697
STATE OF NORTH CAROLINA
v.
LAWRENCE KEITH McGEE
Appeal by defendant by writ of certiorari from order entered 8 July 2014 by L.
Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 19
November 2015.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N.
Callahan, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Jillian
C. Katz, for defendant-appellant.
TYSON, Judge.
Lawrence Keith McGee’s (“Defendant”) petition for a writ of certiorari from the
trial court’s denial of his motion for appropriate relief (“MAR”) was allowed.
Defendant’s argument he now asserts was not set forth in his petition and cannot be
reviewed within the scope allowed by this Court’s 27 August 2014 order issuing the
writ of certiorari. We dismiss Defendant’s writ.
I. Background
STATE V. MCGEE
Opinion of the Court
On 12 May 2008, Defendant appeared in Forsyth County Superior Court and
pleaded guilty to eighteen felonies: (1) six counts of breaking and entering; (2) three
counts of larceny after breaking and entering; (3) two counts of driving while
intoxicated (“DWI”); (4) one count of attempted breaking and entering a building; (5)
one count of attempted larceny; (6) one count of possession of stolen goods or property;
(7) one count of possession of burglary tools; (8) one count of eluding arrest; (9) one
count of driving while license revoked (“DWLR”); and (10) one count of eluding arrest
with two aggravating factors. Defendant also pleaded guilty to two counts of
attaining the status of a habitual felon. The charges, which resulted from five
separate incidents, were consolidated by the court for judgment.
At the plea hearing, the trial court conducted a colloquy with Defendant
pursuant to N.C. Gen. Stat. § 15A-1022. Defendant stated his attorney had explained
all of the charges to him. Defendant also acknowledged he understood how his
habitual felon status charges affected sentencing in each of the predicate felonies to
which they applied. The Court informed Defendant of the mandatory minimum and
the possible maximum punishment for each of the charged offenses.
Under the plea arrangement, fifteen of the eighteen charges, with the
exception of the two DWI charges and the DWLR charge, were consolidated for
judgment. Defendant was to be sentenced at the minimum of the presumptive range
as a habitual felon for those charges. The two DWI and single DWLR charges were
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Opinion of the Court
to be consolidated and the sentence imposed would run consecutively with the other
sentence.
After listening to the State’s factual basis for the plea, Judge William Z. Wood
expressed reservations with the plea arrangement, and stated he was “not sure eight
years is enough” for the number and seriousness of the offenses charged. In response,
the prosecutor pointed out the presumptive range for Defendant’s sentence under the
plea arrangement would be a minimum of 135 months imprisonment. Judge Wood
responded “Okay. Thank you. I can stand that. Okay.”
After considering the plea and conducting a colloquy with one of Defendant’s
victims in open court, the following conversation took place between the court,
Defendant’s counsel, and Defendant:
THE COURT: . . . well, if you-all want to go to the top of
the presumptive, I’ll do that. That’s 168 to 211. If you need
a little while to talk about it, that’s fine.
[Defendant’s counsel]: Your Honor, there’s nothing I can
talk to my client about. He’s sat here and heard everything.
It’s his decision. If he wants more time to think about it --
THE COURT: I know. If he needs a minute to think about
it. It’s his life. I’m not going to – one way or the other.
THE DEFENDANT: I would like to have time to talk to my
wife about it, if that’s okay.
THE COURT: Sure. Where is she?
THE DEFENDANT: I’ll have to -- she'll come visit me in
jail tonight.
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STATE V. MCGEE
Opinion of the Court
THE COURT: No. I won’t be here tomorrow.
THE DEFENDANT: Oh. I guess I ain’t (sic) got much
choice.
THE COURT: No. You got a choice. If you want to think
about it a minute, we’ll do the next case and then come back
to it. I think that’s fair.
Following this colloquy, the Court took a six-minute recess during which Defendant
and his counsel discussed the new plea offer. After recess, Defendant agreed to the
new plea offer and signed the modification.
The modification to Defendant’s plea arrangement states: “Defendant agrees
to the modifying (sic) the agreement to sentence the Defendant on the top of the
presumptive range as a habitual felon.” Consistent with the modification to the plea
arrangement and as announced during the later colloquy with Defendant, the trial
court sentenced Defendant to a minimum of 168 months and a maximum of 211
months imprisonment. Defendant failed to pursue a direct appeal.
Over seven years later on 28 March 2014, Defendant filed an MAR in the
Forsyth County Superior Court. On 8 July 2014, the court denied Defendant’s MAR.
On 11 August 2014, Defendant filed a Petition for Writ of Certiorari with this Court.
On 27 August 2014, this Court allowed Defendant’s petition, “to permit
appellate review” of the trial court’s denial of Defendant’s MAR. This Court’s order
specifically states: “The scope of the appeal shall be limited to the issues raised in
petitioner’s 28 March 2014 motion for appropriate relief.”
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STATE V. MCGEE
Opinion of the Court
II. Issue
Defendant argues the trial court erred in denying his MAR. He asserts his
MAR should have been granted, because the trial court failed to follow the procedural
requirements mandated by N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 (2013) in
accepting his guilty plea.
III. Motion to Dismiss
The State filed a motion to dismiss this appeal. The motion asserts
Defendant’s arguments are inconsistent with; fall outside of; and, are not limited to
the scope of review permitted by this Court’s 27 August 2014 order allowing the
petition for writ of certiorari.
A. Analysis
This Court’s 27 August 2014 order limited the scope of appellate review to “the
issues raised in [Defendant’s] 28 March 2014 [MAR].” In his brief, Defendant argues
the trial court erred in denying his MAR because the sentencing court violated the
procedural requirements of N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 in
accepting his guilty plea. The State contends these arguments are not “issues raised”
in Defendant’s 28 March 2014 MAR. We agree.
1. Defendant’s MAR
Defendant made various claims in his 28 March 2014 MAR. Among them, and
as relevant here, Defendant alleged:
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STATE V. MCGEE
Opinion of the Court
6. That N.C. Gen. Stat. § 15A-1023(b) states, “Upon
rejection of the plea arrangement by the judge, the
defendant is entitled to a continuance until the next
session of court.” Moreover N.C. Gen. Stat. §15A-1024
states that, “If at the time of sentencing, the judge for any
reason determines to impose a sentence other than
provided for in a plea arrangement between the parties, the
judge must inform the defendant of that fact and inform
the defendant that he may withdraw his plea. Upon
withdrawal, the defendant is entitled to a continuance
until the next session of court.”
7. At no time during the sentencing hearing did the
Hon. William Z. Wood, Jr. inform [Defendant] of his right
to a continuance until the next session of court. Instead,
when asked by [Defendant] for at least a day to think over
the new plea the Hon William Z. Wood, Jr. stated, “No. I
won’t be here tomorrow.”. . . [Defendant] in response
stated, “Oh. I guess I ain’t (sic) got much choice”.
Allegation 10 in Defendant’s MAR is a verbatim recitation of allegation 7, but omits
the last sentence. Based upon these, and other, factual allegations, Defendant’s MAR
claimed his plea was unconstitutional because: (1) it was not knowing, voluntary and
intelligent; and (2) he received ineffective assistance of counsel because his trial
counsel failed to inform him of his right to a continuance. Defendant also claimed his
prior record level was incorrectly assessed.
Defendant claims the above quoted factual allegations asserted in his MAR
raises the question of whether the trial court violated N.C. Gen. Stat. §§ 15A-1023(b)
and/or 15A-1024 is an “issue presented” by his MAR, and places it within the scope
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STATE V. MCGEE
Opinion of the Court
of review permitted by this Court's 27 August 2014 order. The General Statutes and
this Court's precedents foreclose such an interpretation of that order.
2. Violation of N.C. Gen. Stat. §§ 15A-1023(b) or 15A-1024
N.C. Gen. Stat. §§ 15A-1023 and 15A-1024 are codified within Article 58 of
Chapter 15A of the General Statutes. Article 58 is entitled “Procedures Relating to
Guilty Pleas in Superior Court.” N.C. Gen. Stat. § 15A-1027, another statute located
in Article 58 of Chapter 15A, is entitled “Limitation on collateral attack on
conviction,” and provides: “Noncompliance with the procedures of this Article may
not be a basis for review of a conviction after the appeal period for the conviction has
expired.” N.C. Gen. Stat. § 15A-1027 (2013).
Pursuant to N.C. Gen. Stat. § 15A-1027, the trial court’s alleged noncompliance
with N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 may not be a basis for review of
Defendant’s sentence after “the appeal period” has expired. See State v. Rhodes, 163
N.C. App. 191, 194, 592 S.E.2d 731, 733 (2004) (noting N.C. Gen. Stat. § 15A-1027
“expresses the General Assembly’s intent to permit review of procedural violations
only during ‘the appeal period.’”). Our Supreme Court has stated that a MAR is a
collateral attack on a conviction. See State v. Handy, 326 N.C. 532, 536, 391 S.E.2d
159, 161 (1990) (citations omitted) (noting “[a] motion to withdraw a guilty plea made
before sentencing is significantly different from a post-judgment or collateral attack
on such a plea, which would be by a motion for appropriate relief”).
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STATE V. MCGEE
Opinion of the Court
In this case, Defendant pleaded guilty on 12 May 2008. Pursuant to Rule 4(a)
of the North Carolina Rules of Appellate Procedure, Defendant was permitted
fourteen days from the entry of judgment to file a direct appeal or a motion for
appropriate relief to be considered filed during the appeal period:
(a) Manner and time. Any party entitled by law to appeal
from a judgment or order of a superior or district court
rendered in a criminal action may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior
court and serving copies thereof upon all adverse
parties within 14 days after entry of the judgment or
order or within 14 days after a ruling on a motion for
appropriate relief made during the 14-day period
following entry of the judgment or order.
N.C. R. App. P. 4(a) (2008). The “appeal period” in Defendant’s case expired on or
about 27 May 2008. Defendant is barred by statute and precedents from collaterally
attacking the judgment entered on the basis of alleged noncompliance with the
procedural rules set forth in Article 58 of Chapter 15A of the General Statutes. N.C.
Gen. Stat. § 15A-1027. This Article includes both N.C. Gen. Stat. §§ 15A-1023 and
15A-1024.
This reading of N.C. R. App. P. 4 and the phrase “the appeal period” is
reinforced by this Court’s holding in State v. Webber, 190 N.C. App. 649, 660 S.E.2d
621 (2008). In Webber, the defendant was found guilty of various offenses on 26 and
30 January 2006. Id. at 650, 660 S.E.2d at 621. On 8 February 2006, defendant filed
a MAR alleging juror misconduct. Id. at 650, 660 S.E.2d at 622. On 19 February
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Opinion of the Court
2007, “[o]ver a year later,” defendant’s MAR was called for a hearing. Id. At the
hearing, defendant “withdrew his MAR, having been unable to substantiate any juror
misconduct, and orally entered notice of appeal.” Id.
Citing to N.C. R. App. P. 4(a), the Court in Webber found it lacked jurisdiction.
Id. The Court noted defendant failed to give oral notice of appeal within fourteen
days of conviction, and failed to give a written notice of appeal within the allowed
fourteen-day window. Id. at 651, 660 S.E.2d at 622. The Court also found that there
was no ruling entered on defendant’s MAR, notwithstanding whether it was filed
within 14 days of entry of judgment. Id. The Court concluded: “Defendant’s oral
notice of appeal after withdrawal of his MAR was given on 19 February 2007, more
than one year after the fourteen[-]day appeal period had ended.” Id.
In this case, Defendant’s MAR was filed more than seven years after the 14
day appeal period allowed by N.C. R. App. P. 4. Since the MAR was filed outside the
appeal period, it is a collateral attack, and Defendant’s argument is barred by N.C.
Gen. Stat. § 15A-1027.
This Court’s 27 August 2014 order allowing Defendant’s petition, over seven
years after sentence was imposed, did not include the question of whether the trial
court violated N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 to be properly before
this Court through certiorari review. Reading this Court’s 27 August 2014 order to
allow review of alleged procedural violations during Defendant’s plea hearing would
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Opinion of the Court
contravene both N.C. Gen. Stat. § 15A-1027 and our precedent in Rhodes. Both the
statute and Rhodes makes it pellucidly clear that an alleged violation of a procedural
rule found in Article 58 of Chapter 15A of the General Statutes may only be mounted
during “the appeal period,” and not through a collateral attack after such period
expired. N.C. Gen. Stat. § 15A-1027 (“Noncompliance with the procedures of this
Article may not be a basis for review of a conviction after the appeal period for the
conviction has expired”); Rhodes, 163 N.C. App. at 194, 592 S.E.2d at 733. The law
“does not permit parties to swap horses between courts in order to get a better mount”
on appeal. Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934).
3. Statutory Right of Continuance
Our holding does not diminish a trial court’s duty, pursuant to N.C. Gen. Stat.
§§ 15A-1023 and 15A-1024, to grant a continuance until the next session of court,
following the rejection by the trial court of a guilty plea or the imposition of a sentence
other than provided for in a plea arrangement. N.C. Gen. Stat. § 15A-1023(b) (“Upon
rejection of the plea arrangement by the judge the defendant is entitled to a
continuance until the next session of court.”); N.C. Gen. Stat. § 15A-1024 (“Upon
withdrawal [of a guilty plea], the defendant is entitled to a continuance until the next
session of court.”). Nor does this holding diminish a defendant’s ability to pursue
appellate review, in open court or during “the appeal period,” of the trial court’s
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STATE V. MCGEE
Opinion of the Court
alleged violations of the procedural requirements found in Article 58 of Chapter 15A
of the General Statutes.
IV. Conclusion
Defendant failed to assert any permissible argument in his brief on appeal,
which was allowed by this Court’s 27 August 2014 order granting a writ of certiorari.
Defendant made no argument in his brief to this Court regarding (1) ineffective
assistance of trial counsel; (2) constitutional violations regarding the knowing,
voluntary, or intelligent nature of his plea; or (3) prior record level assessment. We
deem those arguments abandoned. N.C. R. App. P. 28(b)(6). The State’s motion to
dismiss is allowed.
DISMISSED.
Judges STROUD and DIETZ concur.
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