{ "id": 8520813, "name": "STATE OF NORTH CAROLINA v. LUIS ANTONIO OLIVERA RODRIGUEZ", "name_abbreviation": "State v. Rodriguez", "decision_date": "1993-07-20", "docket_number": "No. 9215SC578", "first_page": "141", "last_page": "148", "citations": [ { "type": "official", "cite": "111 N.C. App. 141" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "739 F.2d 45", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 654932 ], "year": 1984, "pin_cites": [ { "page": "47-48", "parenthetical": "resentencing by different judge is required though trial court not influenced by government's argument" } ], "opinion_index": 0, "case_paths": [ "/f2d/739/0045-01" ] }, { "cite": "808 F.2d 944", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1369096 ], "year": 1986, "pin_cites": [ { "page": "948", "parenthetical": "egregious nature of breach requires the additional step of reassigning the proceedings to a different sentencing judge" } ], "opinion_index": 0, "case_paths": [ "/f2d/808/0944-01" ] }, { "cite": "849 F.2d 304", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 12028124 ], "year": 1988, "pin_cites": [ { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/f2d/849/0304-01" ] }, { "cite": "41 L.Ed.2d 237", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "417 U.S. 933", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519553, 1519555, 1519397, 1519366, 1519976, 1519849, 1519920, 1519634, 1519858, 1519860, 1519387, 1519581 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/417/0933-10", "/us/417/0933-01", "/us/417/0933-06", "/us/417/0933-12", "/us/417/0933-07", "/us/417/0933-08", "/us/417/0933-11", "/us/417/0933-04", "/us/417/0933-09", "/us/417/0933-03", "/us/417/0933-02", "/us/417/0933-05" ] }, { "cite": "454 F.2d 426", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 746774 ], "year": 1972, "pin_cites": [ { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/f2d/454/0426-01" ] }, { "cite": "394 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "806-07" } ], "opinion_index": 0 }, { "cite": "327 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498586 ], "year": 1990, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0397-01" ] }, { "cite": "471 U.S. 453", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204527 ], "weight": 4, "year": 1985, "pin_cites": [ { "parenthetical": "Stevens, J., concurring" }, { "parenthetical": "Stevens, J., concurring" }, { "page": "457" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/us/471/0453-01" ] }, { "cite": "74 L.Ed.2d 970", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "459 U.S. 1116", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6525153, 6524451, 6524486, 6524394, 6524843, 6524765, 6524525, 6525070, 6524912, 6524691, 6524630, 6524986, 6524573 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1116-13", "/us/459/1116-02", "/us/459/1116-03", "/us/459/1116-01", "/us/459/1116-09", "/us/459/1116-08", "/us/459/1116-04", "/us/459/1116-12", "/us/459/1116-10", "/us/459/1116-07", "/us/459/1116-06", "/us/459/1116-11", "/us/459/1116-05" ] }, { "cite": "689 F.2d 28", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1469912 ], "year": 1982, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/f2d/689/0028-01" ] }, { "cite": "788 F.2d 184", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1569472 ], "year": 1986, "pin_cites": [ { "page": "187", "parenthetical": "immaterial whether the government's breach is inadvertent and the breach probably did not influence the judge in the sentence imposed" } ], "opinion_index": 0, "case_paths": [ "/f2d/788/0184-01" ] }, { "cite": "868 F.2d 1357", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536212 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "1358" }, { "page": "1359" }, { "page": "1361" }, { "page": "1360" } ], "opinion_index": 0, "case_paths": [ "/f2d/868/1357-01" ] }, { "cite": "536 F.2d 21", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1056885 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/f2d/536/0021-01" ] }, { "cite": "57 L.Ed.2d 1125", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "436 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490340, 1490309, 1490182, 1490343, 1490572, 1490255, 1490591, 1490623, 1490479, 1490615, 1490330, 1490333, 1490270, 1490655 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/436/0959-05", "/us/436/0959-04", "/us/436/0959-03", "/us/436/0959-02", "/us/436/0959-09", "/us/436/0959-11", "/us/436/0959-08", "/us/436/0959-13", "/us/436/0959-01", "/us/436/0959-06", "/us/436/0959-10", "/us/436/0959-14", "/us/436/0959-07", "/us/436/0959-12" ] }, { "cite": "565 F.2d 1273", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 898474 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "1275" }, { "page": "1274" } ], "opinion_index": 0, "case_paths": [ "/f2d/565/1273-01" ] }, { "cite": "685 F.2d 48", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 525729 ], "year": 1982, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/f2d/685/0048-01" ] }, { "cite": "241 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550358 ], "year": 1978, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0536-01" ] }, { "cite": "397 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058257 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0742-01" ] }, { "cite": "239 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "473", "parenthetical": "if defendant elects not to stand by his portion of the plea arrangement, the State is not bound by its agreement" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 576", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550615 ], "year": 1977, "pin_cites": [ { "page": "579", "parenthetical": "if defendant elects not to stand by his portion of the plea arrangement, the State is not bound by its agreement" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0576-01" ] }, { "cite": "174 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "689", "parenthetical": "a plea of guilty will stand unless induced by misrepresentation, including unfulfilled or unfulfillable promises" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552422 ], "year": 1970, "pin_cites": [ { "page": "416", "parenthetical": "a plea of guilty will stand unless induced by misrepresentation, including unfulfilled or unfulfillable promises" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0408-01" ] }, { "cite": "93 L.Ed.2d 75", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6337380, 6337829, 6335429, 6336041, 6337129, 6336299, 6338284, 6335857, 6336722, 6336918, 6338071, 6336536, 6335641, 6337599 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0835-10", "/us/479/0835-12", "/us/479/0835-01", "/us/479/0835-04", "/us/479/0835-09", "/us/479/0835-05", "/us/479/0835-14", "/us/479/0835-03", "/us/479/0835-07", "/us/479/0835-08", "/us/479/0835-13", "/us/479/0835-06", "/us/479/0835-02", "/us/479/0835-11" ] }, { "cite": "778 F.2d 1437", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1526821 ], "year": 1985, "pin_cites": [ { "page": "1441" } ], "opinion_index": 0, "case_paths": [ "/f2d/778/1437-01" ] }, { "cite": "404 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172366 ], "weight": 11, "year": 1971, "pin_cites": [ { "page": "261" }, { "page": "432" }, { "page": "262" }, { "page": "433" }, { "page": "431" }, { "page": "263" }, { "page": "433" }, { "page": "433" }, { "page": "262" }, { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/us/404/0257-01" ] }, { "cite": "229 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "923" } ], "opinion_index": 0 }, { "cite": "291 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557911 ], "year": 1976, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0275-01" ] } ], "analysis": { "cardinality": 858, "char_count": 16739, "ocr_confidence": 0.713, "pagerank": { "raw": 1.4145973688651005e-07, "percentile": 0.6476414261989791 }, "sha256": "c99b828cf8b5cb990b0644debd366ed3d665684cd4751b5c18de4b620a633021", "simhash": "1:2b7dc9ea670d6f67", "word_count": 2684 }, "last_updated": "2023-07-14T15:07:55.768244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LUIS ANTONIO OLIVERA RODRIGUEZ" ], "opinions": [ { "text": "JOHN, Judge.\nOn February 21, 1992, defendant entered pleas of guilty to two counts of second degree murder and one count of assault with a deadly weapon inflicting serious injury. Pursuant to a plea arrangement as to sentencing, he received two consecutive life sentences on the second degree murder convictions. The trial court also imposed a ten year consecutive sentence on the felonious assault conviction. As defendant expressly states in his brief to this Court, the murder convictions and sentences are not the subject of his appeal. It is only the sentence for felonious assault which he contests.\nDefendant asserts he was deprived of his constitutional right to due process of law. He bases this contention upon his being sentenced to a term in excess of the presumptive term for felonious assault after the prosecutor suggested to the trial court certain non-statutory aggravating factors. These suggestions were made in open court despite the express terms of a plea agreement in which the prosecutor agreed to \u201ctake no position on sentencing.\u201d Upon review, we find defendant\u2019s position persuasive.\nThe facts are not in dispute. Defendant was indicted for two counts of murder in the shooting deaths of Loreda Burnett and Barbara Quirindongo, and for assault with a deadly weapon with intent to kill inflicting serious injury on Carmen Garcia. After negotiations, defendant pled guilty to two counts of second degree murder with the express agreement that he would be sentenced to two consecutive life terms. He also pled guilty to the offense of assault with a deadly weapon inflicting serious injury. In defendant\u2019s written transcript of plea form, the District Attorney agreed the State would \u201ctake no position on sentencing on the assault charge.\u201d The court accepted the pleas and subsequently sentenced defendant.\nAt the sentencing hearing, defendant\u2019s counsel urged the court, based on defendant\u2019s history of epileptic seizures and substantial ingestion of cocaine at the time of the offenses, to find as a statutory mitigating factor that defendant was suffering from a mental or physical condition which reduced his culpability for the felonious assault offense. N.C.G.S. \u00a7 15A-1340.4(a)(2)(d) (Cum. Supp. 1992). The court then inquired of the State, \u201cAnything further . . . ?\u201d In response, the District Attorney made the following statements:\nYour Honor, just to suggest briefly, I did want to make the Court aware that under the facts and under what\u2019s already been presented, that the courts have \u2014 the Court has recognized in its discretion that in the evidence of the particular crimes, particularly with regard to the assault with a deadly weapon, inflicting serious injury, the nonstatutory aggravating factor of the course of violent conduct, and the nonstatutory aggravating factor of a crime committed following flight from another crime.\nThat the Court has recognized the nonstatutory aggravating factor of a course of violent conduct, and also the nonstatutory aggravating factor of a crime committed such as the assault that was committed following his flight from the initial shooting which had occurred at 751 Pritchard Extension, at a later location, when this occurred over in Elliot Road some distance away.\nThe trial court thereafter found no mitigating factors, no statutory aggravating factors, and one non-statutory aggravating factor (\u201cthe crime arose out of the defendant coming to Chapel Hill from another state for the purpose of selling illegal drugs\u201d). Defendant subsequently received the statutory maximum sentence of ten years for felonious assault.\nDefendant contends the District Attorney\u2019s remarks on non-statutory aggravating factors breached the provision of the plea agreement promising that the prosecution would \u201ctake no position on sentencing on the assault charge.\u201d Defendant further maintains this breach deprived him of his constitutional right to due process of law and entitles him to resentencing even if the prosecutor\u2019s comments had no effect on the trial judge\u2019s sentencing decision. We agree.\nPlea bargaining is an essential component of the criminal justice system. State v. Slade, 291 N.C. 275, 277, 229 S.E.2d 921, 923 (1976). \u201cIt leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pre-trial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.\u201d Santobello v. New York, 404 U.S. 257, 261, 30 L.Ed.2d 427, 432 (1971). Moreover, the process is duly codified in North Carolina\u2019s statutory scheme of criminal procedure, the Criminal Procedure Act. See N.C.G.S. \u00a7 15A-1011 et seq. (1988 & Cum. Supp. 1992).\nAlthough a plea agreement occurs in the context of a criminal proceeding, it remains contractual in nature. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835, 93 L.Ed.2d 75 (1986). A plea agreement will be valid if both sides voluntarily and knowingly fulfill every aspect of the bargain. See Dixon v. State, 8 N.C. App. 408, 416, 174 S.E.2d 683, 689 (1970) (a plea of guilty will stand unless induced by misrepresentation, including unfulfilled or unfulfillable promises); State v. Fox, 34 N.C. App. 576, 579, 239 S.E.2d 471, 473 (1977) (if defendant elects not to stand by his portion of the plea arrangement, the State is not bound by its agreement).\nThe Santobello Court highlights the serious contractual nature of a plea bargain: \u201c[A] constant factor [in the plea bargaining process] is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.\u201d Santobello, 404 U.S. at 262, 30 L.Ed.2d at 433. In addition, because of a defendant\u2019s due process right arising out of the \u201cadjudicative element inherent in accepting a plea of guilty, [the agreement between the parties must be] attended by safeguards to insure the defendant [receives] what is reasonably due in the circumstances.\u201d\nId. Once the prosecution makes a promise in exchange for a guilty plea, the right to due process and basic contract principles require strict adherence.\nThis Court endorsed Santobello in Northeast Motor Co. v. N.C. State Board of Alcoholic Control by stating that:\nthe Court\u2019s conclusion in Santobello is predicated upon the defendant\u2019s surrender of fundamental constitutional rights \u2014 effectuated by the entry of a plea of guilty or nolo contendere \u2014 in reliance upon the prosecutor\u2019s promise. See Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970). Thus, when a prosecutor fails to fulfill promises made to the defendant in negotiating a plea bargain, the defendant\u2019s constitutional rights have been violated and he is entitled to relief.\n35 N.C. App. 536, 538, 241 S.E.2d 727, 729 (1978).\nIn Santobello, a defendant indicted for two felonies entered into a plea agreement to plead guilty to a lesser-included offense in exchange for the prosecutor\u2019s agreement to make no recommendation as to sentencing. Sentencing was delayed and at the hearing many months later a new prosecutor, unaware of the prior agreement, recommended the maximum sentence. When defendant objected, the trial judge stated, \u201cI am not at all influenced by what the District Attorney says,\u201d and \u201c[i]t doesn\u2019t make a particle of difference what the District Attorney says . . . .\u201d Id. at 259, 30 L.Ed.2d at 431. He thereafter sentenced defendant to imprisonment for the maximum term of one year. The Supreme Court held that even if the trial court\u2019s decision on sentencing was not affected, the prosecutor\u2019s failure to comply with the terms of the plea agreement, although inadvertent, required the judgment to be vacated and the case remanded for, at a minimum, specific performance of the agreement through resentencing before a different judge. Id. at 263, 30 L.Ed.2d at 433.\nUnder the plea arrangement in the case sub judice, the District Attorney promised to \u201ctake no position on sentencing on the assault charge.\u201d The phrase \u201ctake no position on sentencing\u201d may be characterized as ambiguous. Arguably one might assert the language simply bars the District Attorney from urging the court to impose a specific sentence. A more plausible interpretation, however, is that \u201conce the issue of guilt had been resolved by entry of a plea, the [prosecutor is to] make no comment to the sentencing judge, either orally at sentencing or in writing prior to sentencing, that bears in any way upon the type or severity of the sentence to be imposed.\u201d United States v. Corsentino, 685 F.2d 48, 51 (2nd Cir. 1982). Stated another way, \u201ctaking no position\u201d means making no attempt to influence the decision of the sentencing judge. United States v. Miller, 565 F.2d 1273, 1275 (3d Cir. 1977), cert. denied, 436 U.S. 959, 57 L.Ed.2d 1125 (1978).\nThe State insists in its brief that the District Attorney \u201cmerely set forth the facts and circumstances necessary, and required,\u201d to permit the court to fulfill its sentencing role, and that the record does not support \u201ca conclusion that the prosecutor engaged in taking a position on sentencing or in attempting to influence the severity of the sentence.\u201d The State\u2019s assertion is unconvincing and ignores the day-to-day realities of give and take advocacy in the trial court. The District Attorney\u2019s statement cited previously approved non-statutory aggravating factors. In the context of the sentencing hearing, his remarks, even if intended otherwise, can only be construed as suggesting that defendant\u2019s sentence be aggravated under the balancing methodology set forth in the Fair Sentencing Act. In the words of one court, \u201c[o]nly a stubbornly literal mind would refuse to regard the Government\u2019s commentary as communicating a position on sentencing.\u201d United States v. Crusco, 536 F.2d 21, 26 (3d Cir. 1976). We hold the District Attorney did take a position with regards to sentencing by noting for the trial judge certain available non-statutory aggravating factors, particularly as they applied to defendant\u2019s case, and he therefore violated the plea bargain.\nThe language of the plea agreement between defendant and the State is very similar to that examined in United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989), where the government promised not to \u201ctake a position relative to whether or not a custodial sentence shall be imposed.\u201d Id. at 1358. Yet, the government in its sentencing memorandum offered opinions and drew conclusions about defendant\u2019s character, commenting he was \u201cnot just a white-collar criminal.\u201d Id. at 1359. The statements were found to be in violation of the plea agreement. \u201c[T]he government must adhere strictly to the terms of the bargain it strikes with defendants.\u201d Id. at 1361 (quoting Miller, 565 F.2d at 1274). Furthermore, \u201c[a]n unqualified promise of the prosecution not to take a position on sentencing obviously jeopardizes the government\u2019s position in the sentencing process and may require the government to remain silent when it should stand up and speak.\u201d Id. at 1361 (citing Crusco, 536 F.2d at 26).\nThe State also points out that none of the non-statutory aggravating factors suggested by the District Attorney were found by the trial court, inferring that its decision was not affected by the improper comments. However, even a deliberate effort by the court to disabuse itself of any influence from the prosecutor\u2019s remarks in breach of a plea agreement was held to be unavailing in Santobello:\n[The sentencing judge] stated that the prosecutor\u2019s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition \u00f3f the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case ....\nId. at 262, 30 L.Ed.2d at 433; accord United States v. Martin, 788 F.2d 184, 187 (3d Cir. 1986) (immaterial whether the government\u2019s breach is inadvertent and the breach probably did not influence the judge in the sentence imposed).\nIn addition, the failure of defense counsel to object to the prosecutor\u2019s actions does not constitute a waiver. \u201cOrdinarily there is no requirement that a defendant object to the violation of a plea agreement at the time of sentencing, and defendant\u2019s claim that his plea agreement was violated is not waived by his failure to raise the issue at sentencing . . . .\u201d Paradiso v. United States, 689 F.2d 28, 30 (2d Cir. 1982), cert. denied, 459 U.S. 1116, 74 L.Ed.2d 970 (1983); see also Moscahlaidis, 868 F.2d at 1360. As Justice Stevens observed in a concurring opinion in United States v. Benchimol, 471 U.S. 453, 85 L.Ed.2d 462 (1985) (Stevens, J., concurring), \u201c[i]f the Government erred in failing to recommend affirmatively the proper sentence, the time to object was at the sentencing hearing or on direct appeal.\u201d Id. at 457, 85 L.Ed.2d at 467. While defendant did not raise his objection before the trial court, he does so now in this direct appeal.\nFurthermore, the purpose of a contemporaneous objection is to afford the trial judge an opportunity to cure the asserted error. As previously noted, the Supreme Court expressly held in Santobello that a deliberate effort by the trial judge to ignore improper remarks cannot cure the due process violation caused by breach of the plea agreement. Santobello, 404 U.S. at 262, 30 L.Ed.2d at 433. Thus, when a trial judge cannot effectively cure the error, enforcement of the principle of waiver for lack of a contemporaneous objection serves no legitimate purpose. See State v. Sanderson, 327 N.C. 397, 404, 394 S.E.2d 803, 806-07 (1990).\nHaving concluded the prosecutor violated the terms of the plea agreement, even though the court likely was not influenced by this breach, and that defendant has not waived raising this issue on direct appeal by failing to object at trial, we must consider the type of relief to which defendant may be entitled. He requests a new sentencing hearing before a different trial judge, i.e., enforcement of his bargain. The prosecution promised something within its power to control, and in such cases enforcement of the bargain is appropriate. United States v. Carter, 454 F.2d 426, 427-28 (4th Cir. 1972), cert. denied, 417 U.S. 933, 41 L.Ed.2d 237 (1974). We hold defendant is to receive a new sentencing hearing at which the State \u201ctakes no position on sentencing\u201d on the charge of assault with a deadly weapon inflicting serious injury. Accordingly, we vacate the judgment entered thereon and remand for sentencing on the felonious assault offense.\nWhile we have every confidence in the distinguished trial judge\u2019s ability to afford defendant a fair and impartial hearing on remand, under the holding of Santobello cited above we also direct that defendant\u2019s new sentencing hearing be conducted before a different trial judge. See also United States v. McCray, 849 F.2d 304, 306 (8th Cir. 1988); United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986) (egregious nature of breach requires the additional step of reassigning the proceedings to a different sentencing judge); United States v. Carbone, 739 F.2d 45, 47-48 (2d Cir. 1984) (resentencing by different judge is required though trial court not influenced by government\u2019s argument).\nVacated and remanded.\nJudges WELLS and COZORT concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General E. H. Bunting, Jr., for the State.", "Glover & Petersen, P.A., by James R. Glover, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LUIS ANTONIO OLIVERA RODRIGUEZ\nNo. 9215SC578\n(Filed 20 July 1993)\nCriminal Law \u00a7 124 (NCI4th)\u2014 prosecutor to take no position on sentencing \u2014 violation of plea agreement\nThe District Attorney did take a position with regard to sentencing by noting for the trial judge certain available non-statutory aggravating factors, particularly as they applied to defendant\u2019s case, thereby violating defendant\u2019s plea agreement. Failure of the trial court to find any of the aggravating factors suggested by the District Attorney did not render the error harmless, and failure of defense counsel to object to the prosecutor\u2019s actions did not constitute a waiver.\nAm Jur 2d, Criminal Law \u00a7\u00a7 481-485.\nAppeal by defendant from judgment entered 21 February 1992 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 11 May 1993.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General E. H. Bunting, Jr., for the State.\nGlover & Petersen, P.A., by James R. Glover, for defendant-appellant." }, "file_name": "0141-01", "first_page_order": 171, "last_page_order": 178 }