{ "id": 4364084, "name": "STATE OF NORTH CAROLINA v. VALERIE DAWN RATHBONE KING", "name_abbreviation": "State v. King", "decision_date": "2012-02-07", "docket_number": "No. COA11-526", "first_page": "384", "last_page": "393", "citations": [ { "type": "official", "cite": "218 N.C. App. 384" } ], "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": "626 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635152 ], "year": 2006, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0289-01" ] }, { "cite": "616 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633665 ], "year": 2005, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0914-01" ] }, { "cite": "658 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640622 ], "year": 2008, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0285-01" ] }, { "cite": "228 F.3d 352", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11227654 ], "year": 2000, "pin_cites": [ { "page": "355", "parenthetical": "court reasoned that because plaintiff sought return of \"the very thing\" to which he claimed an entitlement, he was not seeking \"damages in substitution for a loss\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/228/0352-01" ] }, { "cite": "58 Ala. L. Rev. 119", "category": "journals:journal", "reporter": "Ala. L. Rev.", "year": 2006, "pin_cites": [ { "page": "148-49" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-112", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2011, "pin_cites": [ { "page": "(c)" }, { "page": "(a)(2)" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "360 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797218 ], "year": 2006, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0333-01" ] }, { "cite": "359 N.C. 824", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798415 ], "year": 2005, "pin_cites": [ { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0824-01" ] }, { "cite": "310 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "629", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523530 ], "year": 1984, "pin_cites": [ { "page": "165", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0161-01" ] }, { "cite": "858 S.W.2d 81", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1914657 ], "year": 1993, "pin_cites": [ { "page": "84", "parenthetical": "where the Court stated that rescission seemed \"paltry relief indeed for the state's breach of a binding plea agreement.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/313/0677-01" ] }, { "cite": "803 S.W.2d 316", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9977907 ], "year": 1991, "pin_cites": [ { "page": "318", "parenthetical": "where the appellant had \"served a substantial portion of his sentence under the guilty plea\" the Court found that specific performance was the only appropriate remedy." } ], "opinion_index": 0, "case_paths": [ "/sw2d/803/0316-01" ] }, { "cite": "441 F.3d 688", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1037324 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "699", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/441/0688-01" ] }, { "cite": "522 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1999, "pin_cites": [ { "page": "315", "parenthetical": "internal quotations, brackets and citation omitted" }, { "parenthetical": "citation omitted" }, { "page": "316", "parenthetical": "internal citations omitted" }, { "page": "315" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242852 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "731", "parenthetical": "internal quotations, brackets and citation omitted" }, { "page": "732" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0729-01" ] }, { "cite": "265 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "300 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559906 ], "year": 1980, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0142-01" ] }, { "cite": "189 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156729 ], "year": 2008, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0408-01" ] }, { "cite": "221 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "289 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568034 ], "year": 1976, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0286-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] } ], "analysis": { "cardinality": 912, "char_count": 22873, "ocr_confidence": 0.756, "pagerank": { "raw": 5.7146032798565985e-08, "percentile": 0.3585919487970148 }, "sha256": "f578c30c988451af222759e34276edbbeb4e17e32c1cabab3b1e10b0a800da67", "simhash": "1:e3393600a7b70f23", "word_count": 3701 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER, Robert C. concur" ], "parties": [ "STATE OF NORTH CAROLINA v. VALERIE DAWN RATHBONE KING" ], "opinions": [ { "text": "CALABRIA, Judge.\nValerie Dawn Rathbone King (\u201cdefendant\u201d) appeals from an order setting aside the plea disposition and a judgment entered upon jury verdicts finding her guilty of trafficking an opiate, possession of drug paraphernalia, and simple possession of clonazepam. We vacate the judgment and reverse the order.\nI. Background\nAs a result of surveillance conducted on defendant\u2019s home and others residing within her home, defendant, Renee Williams (\u201cWilliams\u201d) and Leonard Caskey were stopped by law enforcement with the Waynesville Police Department (\u201cWPD\u201d), on 4 November 2008, while riding in a vehicle. Williams, the driver of the car, consented to a search of the car. During the search, the officers found cash, two pill bottles and 105 marijuana seeds. According to the labels on the bottles, one was prescribed to Robert Blanton (\u201cBlanton\u201d) and contained eight hydrocodone tablets. The other pill bottle was prescribed to Vonda Williams and contained a half tablet of Oxycontin. Subsequently, defendant was detained and her cash, jewelry and drugs were seized. The total amount of cash seized from defendant on 4 November was $6,150.\nOn 14 November 2008, pursuant to a warrant, defendant\u2019s home was searched. As a result of the search, officers found ammunition, marijuana rolling papers and a Tylenol bottle containing Tylenol and two other pills in defendant\u2019s home. Officers also searched an outside storage building where they found scales and a grinder, both of which were characterized as drug paraphernalia and a bottle of cough syrup containing hydrocodone prescribed to Blanton. Finally, the officers seized $873 from defendant.\nFor the 4 November offenses, defendant was indicted for two counts of trafficking, possession with intent to sell and deliver a controlled substance, and possession with intent to manufacture, sell and/or deliver marijuana. For the 14 November offenses, defendant was indicted for trafficking in opium or heroin, possession of drug paraphernalia and simple possession of Clonazepam, a schedule IV controlled substance.\nOn 3 August 2009, the prosecutor and defendant\u2019s attorney informed the Court of the terms and conditions of defendant\u2019s Alford plea. The prosecutor agreed if defendant pled guilty to one count of misdemeanor possession of a schedule III controlled substance, the State would dismiss the remaining charges pursuant to the plea agreement. One of the conditions of the plea agreement was that the State agreed to return defendant\u2019s personal property, money and jewelry. The plea agreement was signed by the prosecutor and defendant and accepted by Judge Bradley B. Letts (\u201cJudge Letts\u201d).\nOn 6 August 2009, Judge Letts ordered defendant to serve a 45-day sentence, suspended the sentence, placed defendant on supervised probation for twelve months, and various other conditions were imposed. Judge Letts included in the judgment \u201cdefendant to receive her personal property, which is money and jewelry, from the [WPD]; said money to be paid to defendant\u2019s fines and costs.\u201d Defendant\u2019s monetary obligations totaled $1,758.50.\nOn 28 August 2009, defendant filed a motion for return of seized property. That same day, Judge Letts ordered that the balance of the cash, after payment of fines and costs that were held by the WPD, was to be turned over to the defendant. Included in Judge Letts\u2019s order to return defendant\u2019s seized property, was an exception to returning the balance of the funds to defendant. If the funds had been forfeited, the exception required the district attorney to provide documentation of the forfeiture to defendant\u2019s counsel. On 1 September 2009, the District Attorney filed a receipt documenting that $6,150 seized from defendant had been forfeited to the Drug Enforcement Administration (\u201cDEA\u201d) for federal forfeiture proceedings.\nDefendant complied with the terms and conditions of her probation, her probation was modified and she was transferred to unsupervised probation. However, the State did not return the balance of the funds or any funds to defendant. On 23 February 2010, defendant, represented by new counsel, re-filed the motion for return of seized property.\nOn 27 April 2010, at a hearing before Judge Letts, the State indicated that the $6,150, seized as result of the 4 November 2008 arrest, had been turned over to the DEA on 26 November 2008 pursuant to federal law. Although the $873 seized as a result of the 14 November 2008 arrest remained in the custody of WPD, the North Carolina Department of Revenue had already agreed to seize those funds, but had not yet taken possession of them. On 23 April 2009, the DEA disbursed $4800.68 to WPD.\nOn 16 June 2010, Judge Letts entered an order finding that the State had breached the plea arrangement. However, Judge Letts also found that specific performance was not a viable option and therefore the only option was rescission of the plea agreement. The court withdrew the plea and all the charges in the indictments that had been dismissed were reinstated, calendared and set for trial by the State.\nOn 3 December 2010, defendant made a motion to dismiss all charges, claiming trial would subject her to double jeopardy. On 9 December 2010, pursuant to defendant\u2019s motion, Judge James U. Downs dismissed all charges stemming from the events of 4 November 2008, but allowed the State to proceed to trial on all charges in the indictment with the 14 November 2008, date of offense. The jury returned verdicts finding defendant guilty of all charges: trafficking in opium or heroin, misdemeanor possession of drug paraphernalia and misdemeanor simple possession of a schedule IV controlled substance. Defendant was sentenced to a minimum of 225 months and a maximum of 279 months in the Department of Correction. In addition, she was also fined $500,000. Defendant appeals.\nII. Judicial Notice\nOn 21 October 2011, defendant filed a motion requesting the Court take judicial notice of the records of the Clerk of Superior Court in Haywood County showing that defendant paid $1,758.50. This amount was the total amount due for court costs and fines on the 6 August 2009 judgment. With this payment, defendant had completed all monetary obligations from the original judgment.\nJudicial notice is governed by statute, indicating \u201c[a] judicially noticed fact must be one not subject to reasonable dispute in that it is . . . (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 201(b) (2011). \u201cThis Court may take judicial notice of the public records of other courts within the state judicial system.\u201d State v. Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998). If a party requests that the court take judicial notice and provides the necessary information, it is mandatory that a court take judicial notice. N.C. Gen. Stat. \u00a7 8C-1, Rule 201(d) (2011). \u201cJudicial notice may be taken at any stage of the proceeding^\u201d including on appeal. N.C. Gen. Stat. \u00a7 8C-1, Rule 201(f) (2011); State ex rel. Utilities Comm. v. Southern Bell Telephone Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976).\nHere, the' copy of the defendant\u2019s payment of the $1,758.50 is marked \u201cTrue Copy\u201d and signed by an assistant clerk. Therefore, the document is a public record and we may take judicial notice of the fact that defendant paid $1,758.50 to Haywood County for the monetary obligations of the original judgment. The State does not object to the Court taking judicial notice of the copy of defendant\u2019s payment of $1,758.50 to Haywood County Superior Court. Therefore, we grant defendant\u2019s motion.\nIII. Withdrawal of Plea Agreement\nDefendant alleges the superior court erred by setting aside the plea agreement and proceeding to trial when defendant\u2019s motion requested specific performance of a provision of the plea agreement. We agree.\nA plea agreement is \u201cin essence a contract[,]\u201d and thus the law of contracts governs judicial interpretation of plea agreements. State v. Tyson, 189 N.C. App. 408, 413, 658 S.E.2d 285, 289 (2008). Normally, plea agreements are in the form of unilateral contracts and the \u201cconsideration given for the prosecutor\u2019s promise is not defendant\u2019s corresponding promise to plead guilty, but rather is defendant\u2019s actual performance by so pleading.\u201d State v. Collins, 300 N.C. 142, 149, 265 S.E.2d 172, 176 (1980). Once defendant begins performance of the contract \u201cby pleading guilty or takes other action constituting detrimental reliance upon the agreement^]\u201d the prosecutor can no longer rescind his offer. Id.\nDue process requires strict adherence to a plea agreement and \u201cthis strict adherence requires holding the State to a greater degree of responsibility than the defendant... for imprecisions or ambiguities in plea agreements.\u201d State v. Blackwell, 135 N.C. App. 729, 731, 522 S.E.2d 313, 315 (1999) (internal quotations, brackets and citation omitted). Therefore, \u201cthe risk of mistake in plea agreements lies with the State, and the State may not withdraw or have set aside a plea agreement based upon an uninduced mistake contained therein.\u201d State v. Rico,_N.C. App._,_,_S.E.2d_,_(2012).\nIn Rico, the defendant and the State entered into a plea agreement whereby the State used the defendant\u2019s use of a deadly weapon as an aggravating factor. Id. However, our statutes indicated that \u201cthe State could not use defendant\u2019s use of a firearm as an aggravating factor to enhance his sentence for voluntary manslaughter.\u201d Id. The Court recognized that the State was in a better position to know the law and refused to \u201crelieve the State of what it now considers a bad bargain where the plea agreement was the result of uninduced mistake.\u201d Id. (citation omitted).\nIn the instant case, defendant and the State entered into a plea agreement and defendant was sentenced accordingly. As a condition of the agreement, the State agreed to return defendant\u2019s money and jewelry. In August 2009 and again in February 2010, defendant sought specific performance of the agreement. Contrary to the terms of the agreement, the State did not return the balance of defendant\u2019s funds. Therefore, the State breached the plea agreement.\nAt the April 2010 hearing, Judge Letts found:\n21. That the prosecuting attorney did not take steps to ascertain whether or not, in fact, [the funds] were still in the custody of the [WPD], and the [WPD] took no steps to inform the District Attorney\u2019s Office that they no longer had custody of these funds.\n22. That the [c]ourt finds that, at the time of the entry of the plea on August 3, 2009, there was a mutual mistake of fact with respect to the plea arrangement in that the $6,150.00 was no longer in the custody of the [WPD] and had, in fact, been previously seized by the [DEA] and forfeited.\nAlthough Judge Letts found that the district attorney \u201cclearly breached the plea arrangement^]\u201d and that defendant was entitled to a remedy, since the judge stated that specific performance was not appropriate, \u201cthe only option available to the [c]ourt . . . would be rescission of the plea agreement.\u201d\nWhile the mistake in the instant case was one of fact, not law, the State was still in a better position to know whether WPD still had possession of the funds. At the time the district attorney entered into the plea agreement, he was capable of confirming the status of the funds prior to agreeing to return them to defendant. The money was seized from defendant and sent to the DEA the same month. The parties did not enter into the plea agreement until approximately nine months after the forfeiture, in August 2009. The State could have easily confirmed the availability of the funds prior to the execution of the agreement but failed to do so. Therefore, the State must bear the risk of that mistake and the Court erred by rescinding the plea agreement based on a mistake of fact.\nWhen the State \u201cfails to fulfill promises made to the defendant in negotiating a plea bargain\u201d the defendant is entitled to relief, typically in the form of \u201cspecific performance of the plea agreement or withdrawal of the plea itself (i.e. rescission).\u201d Blackwell, 135 N.C. App. at 732, 522 S.E.2d at 316 (internal citations omitted). Other courts have found that while rescission is an available remedy, it is not always appropriate under the circumstances. When a prosecutor breaches a plea agreement, \u201cthe purpose of the remedy is, to the extent possible, to repair the harm caused by the breach.\u201d Buckley v. Terhune, 441 F.3d 688, 699 (9th Cir. 2006) (internal quotations and citations omitted). In Buckley, the defendant had already fulfilled his obligations under the plea agreement and the Court held rescission could not repair the harm, but rather the \u201charm [could] best be addressed by holding the state to its agreement and affording [the defendant] the benefit of his bargain[,]\u201d i.e. specific performance. Id. See also Gibson v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991) (where the appellant had \u201cserved a substantial portion of his sentence under the guilty plea\u201d the Court found that specific performance was the only appropriate remedy.); State v. Gaddy, 858 S.W.2d 81, 84 (Ark. 1993) (where the Court stated that rescission seemed \u201cpaltry relief indeed for the state\u2019s breach of a binding plea agreement.\u201d).\nIn the instant case, Judge Letts found that specific performance was not a viable option, and therefore rescinded the agreement. While Courts have found that either rescission or specific performance are appropriate remedies for breach of a plea agreement, we find that rescission was not appropriate here. Just as the court held rescission could not repair the harm to the defendant in Buckley, the remedy of rescission, in the instant case, could also not repair the harm caused by the State\u2019s breach. Defendant had already completed approximately nine months of her probation and complied with all the terms of the plea agreement, including payment in full for all her fines and costs. The State failed to adhere to its end of the bargain. Rescission of the plea agreement created a situation where defendant not only received an increased sentence but was also ordered to pay a fine of $500,000.\nThis Court has stated that the \u201cdefendant should not be forced to anticipate loopholes that the State might create in its own promises.\u201d Blackwell, 135 N.C. App. at 731, 522 S.E.2d at 315. Specific performance only compels the State to do what it should have done initially, comply with the terms of the plea agreement and return the balance of the funds seized from defendant. See Rose v. Rose, 66 N.C. App. 161, 165, 310 S.E.2d 626, 629 (1984) (internal quotations and citations omitted) (where this Court held that specific performance \u201cdoes no more than compel [defendant] to do precisely what he ought to have done without being coerced by the court.\u201d). Furthermore, we agree with defendant that requiring a defendant to risk conviction merely by seeking specific performance of a state\u2019s obligation under a plea agreement would chill \u201c[t]he economically sound and expeditious practice of plea bargaining [which] should be encouraged, with both sides receiving the benefit of that bargain.\u201d State v. Alexander, 359 N.C. 824, 831, 616 S.E.2d 914, 919 (2005).\nTherefore, Judge Letts\u2019s ruling, that the only option available to defendant was rescission, was error. We reverse Judge Letts\u2019s order, reinstate the plea agreement and vacate the 9 December 2010 judgment.\nIV. Specific Performance of Plea Agreement\nDefendant contends the superior court erred in denying specific performance of the plea agreement to return the money which had been seized from defendant or which was derived from money seized from defendant. Specifically, defendant contends the court\u2019s findings of fact did not support its conclusion of law that specific performance was unavailable to defendant. We agree.\nOn appeal, a trial judge\u2019s \u201cfindings of fact are conclusive ... if supported by competent evidence\u201d but its \u201cconclusions of law are reviewed de novo.\u201dState v. Ripley, 360 N.C. 333, 339, 626 S.E.2d 289, 293 (2006). When reviewing a matter de novo, \u201cthe court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632 \u2014 33, 669 S.E.2d 290, 294 (2008) (internal quotations and citations omitted).\nThis Court has not previously addressed the issue of returning a defendant\u2019s seized property pursuant to a plea agreement. Cases in other jurisdictions dealing with the return of a defendant\u2019s seized property are distinguishable because they do not involve a defendant seeking return of seized property pursuant to a plea agreement with the State.\nIn North Carolina, \u201c[a]ny property seized by a State, local, or county law enforcement officer shall be held in safekeeping . . . until an order of disposition is properly entered by the judge.\u201d N.C. Gen. Stat. \u00a7 90-112(c) (2011). The statute also indicates that any money \u201cacquired, used, or intended for use, in selling, purchasing, manufacturing, compounding, processing, delivering, importing, or exporting a controlled substance\u201d is subject to forfeiture. N.C. Gen. Stat. \u00a7 90-112(a)(2) (2011).\nIn the instant case, instead of holding the funds in safekeeping until a disposition was entered by the judge, the WPD sent the funds to the DEA in November 2008, approximately four months before defendant was even indicted for the charges. Pursuant to the U.S. Department of Justice Equitable Sharing program, the WPD submitted a request to the DEA for a return of a portion of the funds. On 23 April 2009, the DEA disbursed a total of $4,800.68 to the WPD. The money was transferred upon an \u201cApplication for Transfer of Federally Forfeited Property\u201d which requires funds that are transferred back to the police department to be used for law enforcement purposes such as salaries, purchase of equipment, and purchase of vehicles.\nJudge Letts found\n20. That, contrary to State law, N.C. Gen. Stat. \u00a7 90-112(c), the $6,150.00 was not maintained in the custody of the [WPD], and the District Attorney\u2019s Office was unaware that the money had been transmitted and forfeited to the [DEA], Specifically, the District Attorney\u2019s Office and Defendant\u2019s attorney . . . worked under the assumption that all monies were still present at the [WPD],\n29. ... While the [WPD] did not adhere to N.C. Gen. Stat. \u00a7 90-112(c), the [WPD] was acting consistent with federal drug seizure and forfeiture provisions. The conduct of the [WPD] to turn those funds over was in all respects lawful and allowed by federal law. Federal law is in conflict with the state law and, as such, this Court no longer has any control over those federally-forfeited funds and, as such, specific performance is no longer an option for this Court.\nThe court concluded that since the particular funds seized from defendant were no longer available, it did not have the option to order specific performance of the plea agreement.\nJudge Letts correctly stated that the particular funds seized were no longer available. However, there is no requirement that the exact funds seized must be returned to defendant and the State cannot avoid its obligation on this basis. \u2019\u2019The majority view is that a [criminal defendant] is entitled to \u2018return\u2019 of the money, even though the government no longer has the [defendant\u2019s] specific currency.\u201d Colleen P. Murphy, Money as a \u201cSpecific\u201dRemedy, 58 Ala. L. Rev. 119, 148-49 (2006) (also recognizing that since \u201cthe seized currency was not lost or destroyed but instead deposited by the government into an account,\u201d then \u201c[allowing the plaintiff to recover money for cash taken by the government is functionally indistinguishable from allowing the plaintiff to recover account funds in a bank account that the government seized.\u201d); See also U.S. v. Minor, 228 F.3d 352, 355 (4th Cir. 2000) (court reasoned that because plaintiff sought return of \u201cthe very thing\u201d to which he claimed an entitlement, he was not seeking \u201cdamages in substitution for a loss\u201d).\nWhile we recognize that in forfeiting the funds to the DEA, the WPD was acting pursuant to federal law, we do not find that this forfeiture precludes the State from adhering to the plea agreement. Money is fungible. Defendant is not seeking return of a unique item. It is within the State\u2019s power to return funds in the amount seized from defendant, regardless of whether the exact cash seized can be returned. Therefore we hold that, pursuant to the plea agreement, the State must return all funds seized to defendant.\nV. Conclusion\nDefendant sought specific performance, not rescission of the plea agreement. Judge Letts erred when he rescinded defendant\u2019s plea agreement and reinstated the charges against her since the State breached the plea agreement. Although the particular funds seized were no longer available, the State was capable of specific performance of the terms of the plea agreement. Therefore, we reinstate the plea agreement. In addition, we find that the State must return to defendant an amount equal to the amount of funds seized, pursuant to the plea agreement. We vacate the judgment and reverse the order.\nVacated in part and reversed in part.\nJudges McGEE and HUNTER, Robert C. concur", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.", "Kevin P. Bradley, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VALERIE DAWN RATHBONE KING\nNo. COA11-526\n(Filed 7 February 2012)\n1. Criminal Law \u2014 plea agreement \u2014 specific performance of provision \u2014 risk conviction \u2014 plea agreements encouraged\nThe superior court erred in a trafficking in opiate, possession of drug paraphernalia, and simple possession of clonazepam case by setting aside a plea agreement and proceeding to trial. Defendant\u2019s motion for return of seized property requested specific performance of a provision of the plea agreement and requiring defendant to risk conviction merely by seeking specific performance of the State\u2019s obligation under the plea agreement would chill the practice of plea bargaining, which should be encouraged.\n2. Criminal law \u2014 plea agreement \u2014 specific performance\u2014 funds returnable\nThe superior court erred in a trafficking an opiate, possession of drug paraphernalia, and simple possession of clonazepam case by denying specific performance of a plea agreement to return money which had been seized from defendant or which was derived from money seized from defendant. It was within the State\u2019s power to return funds in the amount seized from defendant, regardless of whether the exact cash seized could have been returned.\nAppeal by defendant from order filed 16 June 2010 by Judge Bradley B. Letts and judgment entered 9 December 2010 by Judge James U. Downs in Haywood County Superior Court. Heard in the Court of Appeals 25 October 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.\nKevin P. Bradley, for defendant-appellant." }, "file_name": "0384-01", "first_page_order": 394, "last_page_order": 403 }