No. COA10-1113 TWENTY-SIXTH JUDICIAL DISTRICT

1

No. COA10-1113 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

**************************************************

STATE OF NORTH CAROLINA)

)

v.)From Mecklenburg

)

KEITH LEONARDO SHROPSHIRE)

**************************************************

DEFENDANT-APPELLANT’S BRIEF

**************************************************

ISSUE PRESENTED

I.WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SUMMARILY DENIED MR. SHROPSHIRE’S MOTION TO WITHDRAW HIS PLEA AFTER SENTENCING WITHOUT GIVING MR. SHROPSHIRE AN OPPORTUNITY TO BE HEARD PURSUANT TO N.C. GEN. STAT. § 15A-1420(a)(2), (c)(1) (2010)?

STATEMENT OF THE CASE

This case came on for hearing at the April 19, 2010 Criminal Session of Mecklenburg County Superior Court before Superior Court Judge Christopher M. Collier, on indictments charging Mr. Shropshire with one count each of first-degree rape and statutory rape. (Rpp. 2-3) On April 19, 2010, Mr. Shropshire pled guilty to attempted first-degree rape and attempted statutory rape. (Rpp. 5-9) Judge Collier thenentered Judgments and Commitments sentencing Mr. Shropshire to two terms of 151 to 191 months imprisonment, set to run consecutively. (Rpp. 12-13, 16-17) Following the entry of judgment, Mr. Shropshire made a motion to withdraw his plea which Judge Collier denied. (Tp. 39) Mr. Shropshire gave oral notice of appeal in open court and subsequently filed written notice of appeal on April 21, 2010. (Rp. 20; Tp. 39)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Mr. Shropshire appeals pursuant to N.C. Gen. Stat. § 15A-1444(e), from a final judgment of Mecklenburg County Superior Court. See also State v. Salvetti, __ N.C. App. __, 687 S.E.2d 698, 703 (2010) (holding that based on N.C.G.S. § 15A-1444 and the North Carolina Supreme Court’s decision in State v. Dickens, defendant was entitled to appeal his motion to withdraw his Alford plea as a matter of right); State v. Dickens, 299 N.C. 76, 79, 261 S.E.2d 183, 185 (1980) (holding that when the trial court denied defendant’s post-sentencing motion to withdraw his guilty plea, the defendant was entitled to appeal as a matter of right pursuant to N.C.G.S. §15A-1444(e))

STATEMENT OF THE FACTS

Mr. Shropshire appeared at the April 19, 2010 Criminal Session of Mecklenburg County Superior Court for pre-trial matters after his first jury trial resulted in a mistrial. (Tp. 3) The mistrial, which Mr. Shropshire consented to, was the result of a chain of custody issue regarding DNA results. (Tp. 3) On April 19, 2010, Mr. Shropshire pled guilty to attempted first-degree rape and attempted statutory rape. (Tpp. 20-26)

Mr. Bender, Mr. Shropshire’s attorney, proposed a plea to the district attorney which was accepted. (Tp. 19) Mr. Bender explained the plea to Mr. Shropshire, who agreed to plead guilty to the lesser-included offenses of attempted first-degree rape and attempted statutory rape. (Tp. 20) Judge Collier engaged in a plea colloquy with Mr. Shropshire, and Mr. Shropshire swore that his answers given in the transcript of plea were truthful. (Tpp. 20, 24) The district attorney gave a factual basis for the plea,stating that new DNA tests confirmed that Mr. Shropshire fathered Ms. Tenika Robinson Lawhorn’s two children when she was twelve and thirteen years old. (Tp. 25) Judge Collier accepted the plea and ordered it recorded. (Tp. 26)

After the lunch recess the parties returned for sentencing, at which time Ms. Robinson Lawhorn was present. She addressed the court and Mr. Shropshire, stating that Mr. Shropshire would never understand the harm he caused but that she forgave him. (Tpp. 27-28) Mr. Shropshire then spoke to the court and Ms. Robinson Lawhorn. He tried to explain what happened between him and Ms. Robinson Lawhorn, and said that he “did not mean for any of this to happen.” (Tpp. 31-32) Judge Collier responded and stated “[t]hat poor lady back there, you’ve made comments to deflect some of the blame from yourself and place it on her back when she was barely a teenager, not even a teenager saying that she loves you and you tried to push her away.” (Tp. 37) Mr. Shropshire attempted to reply but was not allowed. (Tp. 37)

Mr. Bender also presented evidence of mitigating factors for sentencing. (Tp. 30) Specifically, he stated that Mr. Shropshire was a prior record level II, butthat his previous offenses occurred in the early 1990s. (Tp. 30) He also reported that Mr. Shropshire was previously employed as a cook at Ruby Tuesday’s. (Tp. 30) Mr. Bender informed Judge Collier that Mr. Shropshire was honorably discharged from the United Statesmilitary and noted that Mr. Shropshire had accepted responsibility for his actions. (Tp. 30) Mr. Bender asked that Mr. Shropshire be sentenced in the mitigated range, with the sentences to run concurrently. (Tp. 30)

Judge Collier ruled that the plea was Mr. Shropshire’s “informed choice, made freely, voluntarily and understandingly.” (Tp. 38) The plea was again accepted and ordered. (Tp. 38) Mr. Shropshire asked if he could speak, and Judge Collier said no, because “you’ve had your time.” (Tp. 38) Judge Collier thensentenced Mr. Shropshireto two consecutive terms of 151 to 191 months imprisonment. (Tpp. 38-39)

After sentencing, Mr. Shropshire told Judge Collier that he did not understand, at which time, the final exchange took place (Tp. 39):

THE DEFENDANT:I didn’t understand your Honor.

THE COURT:151 minimum to 191 minimum plus the same thing.

The DEFENDANT: Your Honor - -

THE COURT:Take him out.

THE DEFENDANT:I appeal this on the grounds my constitutional rights were violated. I appeal.

THE COURT:Mr. Bender, if you’ll take a couple minutes to explain with him the limited grounds for appeal. If he alleges grounds that are allowed to be appealed to the guilty plea I will allow him to appeal [sic].

THE DEFENDANT:I would also like to reject my plea.

THE COURT:That’s a motion to withdraw your plea, is that what that is?

THE DEFENDANT:Yes, sir.

THE COURT:Motion denied. Take him out.

Following this exchange, the proceedings concluded. (Tp. 40)

STANDARD OF REVIEW

“In reviewing a decision of the trial court to deny defendant’s motion to withdraw [his plea], the appellate court . . . makes an ‘independent review of the record.’” State v. Suites, 109 N.C. App. 373, 376, 472 S.E. 2d 318, 320 (1993) (citingState v. Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993) (holding that when an appellate court examines the trial court’s decision, the standard is not abuse of discretion, but rather an independent review of the record)).

ARGUMENT

I.THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SUMMARILY DENIED MR. SHROPSHIRE’S MOTION TO WITHDRAW HIS PLEA AFTER SENTENCING WITHOUT GIVING HIM AN OPPORTUNITY TO BE HEARD PURSUANT TO N.C. GEN. STAT. §15A-1420(a)(2), (c)(1).

Despite Mr. Shropshire’s stated confusion following sentencing and his motion to withdraw his guilty plea, the trial court summarily denied the motion without giving Mr. Shropshire an opportunity to be heard. Pursuant to our Supreme Court’s decision in State v. Handy, 326 N.C. 532, 391 S.E.2d 159 (1990), such a motion made after sentencing should be treated as a motion for appropriate relief (hereinafter MAR). This requires the trial court to determine, first, when to hear the matter and second, whether the defendant is entitled to a hearing. N.C. Gen. Stat. § 15A-1420(a)(2), (c)(1) (2010). The trial courtin this case committed reversible error by failing to treat the motion as a MAR and by not allowing Mr. Shropshire an opportunity to present the basis for his motion. Consequently, this case should be remanded to the trial court for a hearing on the motion to withdraw his plea.

A.The trial court was required to treat Mr. Shropshire’s motion as a motion for appropriate relief, to determine when the motion would be heard, and to make a determination regarding the merits of the motion.

Pursuant to Handy, when a defendant makes a motion to withdraw his guilty plea, the motion should be treated as a MAR. Handy, 326 N.C. at 536, 391 S.E.2d at 161. See also Dickens, 299 N.C 76, 78, 261 S.E.2d 183, 185 (1980). “A motion for appropriate relief is a post-verdict motion (or a post-sentencing motion where there is no verdict) made to correct errors occurring prior to, during and after a criminal trial.” Handy, 326 N.C. at 535, 391 S.E.2d at 160-161 (emphasis in the original). Furthermore, under N.C. Gen. Stat. § 15A-1420(a)(2), “[w]hen a motion for appropriate relief is permitted to be made orally, the court must determine whether the matter may be heard immediately or at a later time.” The statute provides that “[a]ny party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit.” N.C. Gen. Stat. § 15A-1420(c)(1) (2010) (emphasis added).

Since 1980, our Supreme Court has held that a post-sentence motion to withdraw a plea is effectively a MAR. Dickens, 299 N.C. at 78, 261 S.E.2d at 185. In Dickens, the defendant moved to withdraw his plea, alleging that trial counsel told him that he would be allowed to make restitution rather than serve an active sentence. Id.at 83, 261 S.E.2d at 187. The defendant supported his argument by pointing to the contradictory answers in the plea colloquy. Id. The Supreme Court ruled that because sufficient facts existed to necessitate an evidentiary hearing on the motion, the trial court erred in denying the motion. Id.

More importantly, the Supreme Court also ruled that “[i]n most cases, reference to the verbatim record of the guilty plea proceedings will conclusively resolve all questions of fact raised by a defendant’s motion to withdraw a plea of guilty and will permit a trial judge to dispose of such motion without holding an evidentiary hearing.” Id. at 84, 261 S.E.2d at 188. “Even so, regardless of whether evidentiary hearings are held, ‘the importance of protecting the innocent and insuring that guilty pleas are a product of free and intelligent choice requires that such claims be patiently and fairly considered by the courts.’” Id.(citing State v. Dickens, 41 N.C. App. 388, 395, 255 S.E.2d 212, 216 (1979) (Clark, J., dissenting)). Accordingly, due to the “deficient state of the record” in Dickens, the Supreme Court concluded that a “question of fact exist[ed]” as to whether the defendant’s guilty pleas were the result of secret plea bargaining. Id. at 83, 261 S.E.2d 183.

More recently, in State v. Hardison, 126 N.C. App. 52, 483 S.E.2d 459 (1997), this Court addressed the requirement of an evidentiary hearing when a motion to withdraw is treated as a MAR. InHardison, the defendant pled guilty to first-degree burglary and second-degree kidnapping and was sentenced to life in prison plus an additional 20 years. Id. at 53, 483 S.E.2d at 460. Two years later, the defendant filed a motion for appropriate relief for the purpose of withdrawing his guilty plea. Id. In his motion, among other allegations,the defendant argued that his attorney at the plea hearing had a conflict of interest which denied him effective assistance of counsel. Id. The trial court denied the motion without holding an evidentiary hearing because the court determined that the motion was without merit. Id. at 54, 483 S.E.2d at 460.

This Courtheld in Hardison that the trial court’s ruling on the motion was error because “sufficient evidence existed to warrant an evidentiary hearing.” Id. This Court further noted that “[t]he court below . . . treated these very serious allegations in a very cursory manner.” Id. at 57, 483 S.E.2d at 462. However, while the trial court in Hardisontreated the allegations in a “cursory manner,” the court at least followed the requirements of N.C. Gen. Stat. § 15A-1420(c)(1), even if proven incorrect on appeal. Id. at 57, 462 S.E.2d at 460.

Like the defendants in Dickens and Hardison, Mr. Shropshire made a post-sentence motion to withdraw his guilty plea. At the hearing, Mr. Shropshire tendered his guilty plea which was accepted and recorded. (Tp. 38) Following sentencing, and at the conclusion of the hearing, Mr. Shropshire explained to the trial court that he was confused and that he did not understand. (Tp. 39) Rather than inquire as to the source of Mr. Shropshire’s confusion, the trial court simply repeated the sentencing order. (Tp. 39) Mr. Shropshire then made a motion to withdraw the plea, which the court summarily denied. (Tp. 39) The trial court’s failure to treat Mr. Shropshire’s motion to withdraw as a MAR as required by Handy, Dickens, and Hardison was reversible error.

Moreover, in addition to treating Mr. Shropshire’s motion as a MAR, the trial court was also required to rule on the merits of the motion. Since the motion was permitted to be made orally, the trial court should have first determined whether the motion would be heard immediately or at another time. N.C. Gen. Stat. § 15A-1420(a)(2) (2010). Secondly, because Mr. Shropshire’s motion should have been treated as a MAR, he was entitled to a hearing unless the trial court decided that the motion was without merit. N.C. Gen. Stat. §15A-1420(c)(1) (2010). Thus, the trial court erred because: 1) it did not treat the motion to withdraw as a MAR; 2) it did not determine when the motion would be heard; and 3) it did not inquire as to the basis of the motion to determine whether it had any merit.

In this case, the trial court did not make even a superficial inquiry into the basis for Mr. Shropshire’s motion; instead, the court treated the motion in “a very cursory manner.” Hardison, 126 N.C. App. at 57, 783 S.E.2d at 462. While it is possible that such an examination could have led to a quick resolution of the motion, it is also possible that upon questioning, Mr. Shropshire would have presented a sufficient basis for an evidentiary hearing. However, regardless of whether an evidentiary hearing would have been required, “the importance of protecting the innocent and insuring that guilty pleas are a product of free and intelligent choice requires that such claims be patiently and fairly considered by the courts.” Dickens, 41 N.C. App at 395, 255 S.E.2d at 216. (Clark J., dissenting). Consequently, this case should be remanded to the trial court with instructions to treat Mr. Shropshire’s motion to withdraw his plea as a MAR and to “patiently and fairly” consider the motion to determine whether it has any merit. Id.

B.Because the trial court did not conform to the procedural requirements regarding Mr. Shropshire’s motion, this Court is unable to apply the “manifest injustice” standard.

Finally, Mr. Shropshire is not asserting that due to the trial court’s denial of his post-sentence motion to withdraw, “manifest injustice” resulted. Our courts have consistently held that “a presentence motion to withdraw a plea of guilty should be allowed for any fair and just reason.” Handy, 326 N.C. at 539, 391 S.E.2d at 162. See alsoMarshburn, 109 N.C. App. at 180, 425 S.E.2d at 718 (“That is, the appellate court must itself determine, considering the reasons given by the defendant and any prejudice to the State, if it would be fair and just to allow the motion to withdraw.”); Salvetti,__ N.C. App. __, 687 S.E.2d at 708 (ruling that a pre-sentence motion to withdraw a guilty plea should be permitted for “any fair and just reason.”) “On the other hand, where the guilty plea is sought to be withdrawn by defendant after sentence, it should be granted only to avoid manifest injustice.” Handy, 326 N.C. at 536, 391 S.E.2d at 161 (citing State v. Olish, 164 W. Va. 715, 715, 266 S.E.2d 134, 136 (1980)).

Our Supreme Court in Handy included a list of factors to assist the trial court in determining whether a pre-sentence motion to withdraw should be granted. Id. at 539, 391 S.E.2d at163. This Court has since applied these factors to post-sentence motions to withdraw which are applied both at trial and when conducting an independent review of the record on appeal. State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247 (2002). “Factors to be considered in determining the existence of manifest injustice include whether: Defendant was represented by competent counsel; Defendant is asserting innocence; and Defendant’s plea was made knowingly and voluntarily, or was the result of misunderstanding, haste, coercion or confusion.” Id. (emphasis added).

Here, the trial court summarily denied Mr. Shropshire’s motion to withdraw his guilty plea without giving him an opportunity to explain the reasons for the motion. Consequently, the record is completely silent as to the basis of the motion. Moreover, the trial court did not consider the relevant factors or apply the manifest injustice standard when it denied the motion.While it is certainly possible that the plea was the result of misunderstanding, confusion or haste, the record here is deficient, making it impossible for this Court to make an independent review of the record. Because it is unclear if “manifest injustice” resulted when the trial court denied Mr. Shropshire’s motion, that standard is not appropriate for application on this appeal.

CONCLUSION

For all the foregoing reasons and authorities, Mr. Shropshire respectfully asks this Court to remand this case to the trial court with instructions to treat his withdrawal motion as a motion for appropriate relief and to determine whether the motion has any merit.

Respectfully submitted, this the _____ day of October, 2010.

______

Mary Cook

Assistant Appellant Defender

North Carolina State Bar No. 41175

______

Kristen L. Todd

Assistant Appellant Defender

North Carolina State Bar No. 35614

Staples Hughes

Appellate Defender

Office of the Appellate Defender

123 West Main Street, Suite 500

Durham, North Carolina27701

(919) 560-3334

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)

Undersigned counsel hereby certifies that this brief is in compliance with N.C. R. App. P. 28(j)(2) in that it is printed in 14-point Times New Roman font and contains no more than 8,750 words in the body of the brief, footnotes and citations included, as indicated by the word-processing program used to prepare the brief.

This the _____ day of October, 2010.

______

Mary Cook

Assistant Appellate Defender

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to John Connell, the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina, 27602, by placing it in a depository for that purpose.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon M. Elizabeth Guzman, Assistant Attorney General, Broughton Hospital, 1000 S. Sterling Street, Post Office Box 121, Morganton, NC 28655 by first-class mail, postage prepaid.

This the _____ day of October, 2010.

______

Mary Cook

Assistant Appellate Defender