{ "id": 4162364, "name": "STATE OF NORTH CAROLINA v. TRACY GLEN SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2008-11-18", "docket_number": "No. COA08-533", "first_page": "739", "last_page": "743", "citations": [ { "type": "official", "cite": "193 N.C. App. 739" } ], "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": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "588 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "8-9" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955236 ], "year": 2003, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0060-01" ] }, { "cite": "502 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "676" }, { "page": "588" }, { "page": "588" }, { "page": "588" } ], "opinion_index": 0 }, { "cite": "348 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659869 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "676" }, { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0671-01" ] }, { "cite": "564 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "151 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079619 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/151/0136-01" ] }, { "cite": "574 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "155 N.C. App. 773", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9252162 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/155/0773-01" ] }, { "cite": "588 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "546-47" }, { "page": "547" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959035 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "528-29" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0527-01" ] }, { "cite": "568 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "869" }, { "page": "870" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248676 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "72" }, { "page": "73-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0069-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a) and (2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 498, "char_count": 10422, "ocr_confidence": 0.735, "pagerank": { "raw": 1.2270519615018583e-07, "percentile": 0.6047773441617639 }, "sha256": "8a20947524731468781ec7cef2c59d50b6b542b4d00125c73add9a3b1fe99b9e", "simhash": "1:032b9246d6a09894", "word_count": 1716 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TRACY GLEN SMITH" ], "opinions": [ { "text": "TYSON, Judge.\nTracy Glen Smith (\u201cdefendant\u201d) appeals from judgment entered after he pleaded guilty to: (1) possession with intent to sell and deliver cocaine pursuant to N.C. Gen. Stat. \u00a7 90-95(a) and (2) having attained habitual felon status. We vacate and remand.\nI. Background\nOn 13 January 2006, Kinston Department of Public Safety Captain Milton Kivett (\u201cCaptain Kivett\u201d) went to the 300 block of East Blount Street \u201cto back two officers up on a traffic stop.\u201d Upon arrival, the officers had removed one of the occupants from the vehicle. Captain Kivett was advised by the other officers that they were going to search the vehicle.\nCaptain Kivett removed defendant from the front passenger seat of the vehicle and handcuffed him. Defendant was advised at that time that he was not under arrest. When Captain Kivett frisked defendant for weapons, he felt what he believed to be a \u201cpocketknife or some type of knife[]\u201d in defendant\u2019s pocket.\nCaptain Kivett advised defendant that he was going to search his pocket to retrieve what he thought to be a knife. Captain Kivett then illuminated defendant\u2019s pocket with a flashlight and discovered \u201ctwo round glass type items with a burn on the end.\u201d Defendant was placed under arrest for possession of drug paraphernalia.\nCaptain Kivett conducted a search of defendant\u2019s person incident to arrest and discovered: (1) digital scales with white powder residue on them; (2) \u201ca miscellaneous amount of clear plastic sandwich bags[;]\u201d (3) clear plastic sandwich bags which contained several off-white rocks; (4) $353.00 in cash; and (5) a cellular phone.\nOn 4 April 2007, defendant was indicted for: (1) possession with intent to sell and deliver a controlled substance and (2) attaining the status of habitual felon. On 10 October 2007, defendant filed a motion to suppress \u201cany and all evidence obtained as the result of the unconstitutional and invalid seizure and search of . . . [defendant.\u201d Defendant also filed a motion to dismiss his habitual felon indictment \u201con the grounds that the North Carolina Habitual Felon Act is unconstitutional.\u201d\nDefendant\u2019s motions were heard on 3 December 2007. The trial court denied both motions and defendant pleaded guilty to possession with intent to sell and deliver cocaine and attaining the status of habitual felon. The trial court determined defendant to be a prior record level III offender and sentenced him to a mitigated active sentence of a minimum of seventy months and a maximum of ninety-three months incarceration. Defendant appeals.\nII. Issues\nDefendant argues: (1) his plea was not entered knowingly and voluntarily; (2) the trial court erred when it denied his motion to suppress; and (3) he received ineffective assistance of counsel.\nIII. Knowing and Voluntary Plea\nDefendant argues \u201c[t]he record does not establish knowing and voluntary waiver of jury trials when the guilty plea and admission of habitual felon status were entered on misunderstandings that the denials of [defendant]\u2019s pretrial motions were preserved for appellate review.\u201d We agree.\n\u201cIn North Carolina, a defendant\u2019s right to appeal in a criminal proceeding is purely a creation of state statute. Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings.\u201d State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002).\nA defendant who pleads guilty has a right of appeal limited to the following:\n1. Whether the sentence \u201cis supported by the evidence.\u201d This issue is appealable only if his minimum term of imprisonment does not fall within the presumptive range. N.C. Gen. Stat. \u00a7 15A-1444(al) (2001);\n2. Whether the sentence \u201c[r]esults from an incorrect finding of the defendant\u2019s prior record level under G.S. 15A-1340.14 or the defendant\u2019s prior conviction level under G.S. 15A-1340.21.\u201d N.C. Gen. Stat. \u00a7 15A-1444(a2)(l) (2001);\n3. Whether the sentence \u201c[c]ontains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level.\u201d N.C. Gen. Stat. \u00a7 15A-1444(a2)(2) (2001);\n4. Whether the sentence \u201c[c]ontains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level.\u201d N.C. Gen. Stat. \u00a7 15A-1444(a2)(3) (2001);\n5. Whether the trial court improperly denied defendant\u2019s motion to suppress. N.C. Gen. Stat. \u00a7\u00a7 15A-979(b) (2001), 15A-1444(e) (2001);\n6. Whether the trial court improperly denied defendant\u2019s motion to withdraw his guilty plea. N.C. Gen. Stat. \u00a7 15A-1444(e).\nState v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003).\nHere, upon defendant\u2019s guilty plea, defendant has a right to appeal only the trial court\u2019s denial of his motion to suppress. N.C. Gen. Stat. \u00a7\u00a7 15A-979(b), -1444(e) (2007). Defendant does not have a right to appeal the trial court\u2019s denial of his motion to dismiss his habitual felon indictment.\nWhere a defendant does not have an appeal of right, our statute provides for defendant to seek appellate review by a petition for writ of certiorari. N.C. Gen. Stat. \u00a7 15A-1444(e). However, our appellate rules limit our ability to grant petitions for writ of certiorari to the following situations: (1) defendant lost his right to appeal by failing to take timely action; (2) the appeal is interlocutory; or (3) to review a trial court\u2019s denial of a motion for appropriate relief.' N.C.R. App. P. 21(a)(1) (2003). In considering [A]ppellate Rule 21 and N.C. Gen. Stat. \u00a7 15A-1444, this Court has reasoned that since the appellate rules prevail over conflicting statutes, we are without authority to issue a writ of certiorari except as provided in [Appellate] Rule 21. State v. Nance, 155 N.C. App. 773, 574 S.E.2d 692 (2003); Pimental, 153 N.C. App. at 73-74, 568 S.E.2d at 870; State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002).\nJamerson, 161 N.C. App. at 529, 588 S.E.2d at 547. Upon defendant\u2019s guilty plea, this Court is without authority to review, either as of right or by certiorari, the trial court\u2019s denial of defendant\u2019s motion to dismiss his habitual felon indictment.\nIn State v. Wall, our Supreme Court was confronted with a similar situation and vacated the trial court\u2019s order and remanded. 348 N.C. 671, 502 S.E.2d 585 (1998). Our Supreme Court stated:\n[the] defendant\u2019s plea of guilty was consideration given for the prosecutor\u2019s promise. He was entitled to receive the benefit of his bargain. However, [the] defendant is not entitled to specific performance in this case because such action would violate the laws of this [S]tate. Nevertheless, defendant may avail himself of other remedies. He may withdraw his guilty plea and proceed to tri\u00e1l on the criminal charges. He may also withdraw his plea and attempt to negotiate another plea agreement that does not violate [the laws of this State].\nId. at 676, 502 S.E.2d at 588.\nHere, defendant\u2019s plea arrangement stated:\nThat upon the defendant plea of guilt [sic] to possession of cocaine with the intent of sale or delivery a Class H felony and with the admission of his status as an habitual felon, the defendant will be sentenced as a Class C felon level 3 at the least amount of time possible and the defendant\u2019s pretrial motions shall be preserved for appeal.\n(Emphasis supplied).\nDefendant\u2019s plea of guilty was given in consideration for the prosecutor\u2019s promise. Defendant was entitled to receive the benefit of his bargain. Pursuant to our Supreme Court\u2019s holding in Wall, the judgment entered based on defendant\u2019s plea is vacated and this case is remanded to the trial court where defendant \u201cmay withdraw his guilty plea and proceed to trial on the criminal charges. . . . [or] attempt to negotiate another plea agreement. . . .\u201d 348 N.C. at 676, 502 S.E.2d at 588; see also State v. Jones, 161 N.C. App. 60, 63, 588 S.E.2d 5, 8-9 (2003) (\u201c[S]ince defendant bargained for review of three motions and our Court may review only one, we will not address the substantive issues raised by the motion to suppress. Rather, pursuant to Wall, we vacate the plea and remand the case to the trial court, placing defendant back in the position he was in before he struck his bargain: he may proceed to trial or attempt to negotiate another plea agreement.\u201d), rev\u2019d in part on other grounds, 358 N.C. 473, 598 S.E.2d 125 (2004). In light of our holding, it is unnecessary to and we do not address defendant\u2019s remaining assignments of error.\nIV. Conclusion\nDefendant cannot receive the benefit of his bargain based on the laws of this State or our Appellate Rules. Based on our Supreme Court\u2019s holding in Wall, the judgment entered based on defendant\u2019s guilty plea is vacated and this matter is remanded for proceedings not inconsistent with this opinion. 348 N.C. at 676, 502 S.E.2d at 588.\nVacated and Remanded.\nJudges MCCULLOUGH and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney Marc X. Sneed, for the State.", "Kevin P. Bradley, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TRACY GLEN SMITH\nNo. COA08-533\n(Filed 18 November 2008)\nCriminal Law\u2014 guilty plea \u2014 plea bargain \u2014 misunderstandings\nThe trial court erred in a possession with intent to sell and deliver cocaine case by concluding defendant\u2019s guilty plea and admission of habitual felon status were entered knowingly and voluntarily based on misunderstandings that the denial of his pretrial motion to dismiss the habitual felon indictment was preserved for appellate review, and the case is remanded to the trial court where defendant may withdraw his guilty plea and proceed to trial on the criminal charges or attempt to negotiate another plea agreement because: (1) defendant\u2019s plea of guilty was given in consideration for the prosecutor\u2019s promise that defendant\u2019s pretrial motions would be preserved for appeal, and defendant was entitled to receive the benefit of his bargain; and (2) defendant cannot receive the benefit of his bargain based on the laws of North Carolina or our appellate rules since he only has a right to appeal the denial of his motion to suppress and cannot appeal the denial of his motion to dismiss the habitual felon indictment after a guilty plea.\nAppeal by defendant from judgment entered on or after 4 December 2007 by Judge Benjamin G. Alford in Lenior County Superior Court. Heard in the Court of Appeals 23 October 2008.\nAttorney General Roy Cooper, by Assistant Attorney Marc X. Sneed, for the State.\nKevin P. Bradley, for defendant-appellant." }, "file_name": "0739-01", "first_page_order": 771, "last_page_order": 775 }