{ "id": 8523532, "name": "STATE OF NORTH CAROLINA, Plaintiff v. JEROME JEWETT JOHNSON, Defendant", "name_abbreviation": "State v. Johnson", "decision_date": "1989-10-03", "docket_number": "No. 8911SC262", "first_page": "757", "last_page": "760", "citations": [ { "type": "official", "cite": "95 N.C. App. 757" } ], "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": "235 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561330 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0034-01" ] }, { "cite": "594 F.2d 12", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 512700 ], "year": 1979, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/f2d/594/0012-01" ] }, { "cite": "404 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172366 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0257-01" ] }, { "cite": "262 N.W.2d 890", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "79 Mich. App. 714", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2162226 ], "year": 1977, "pin_cites": [ { "page": "721-22" } ], "opinion_index": 0, "case_paths": [ "/mich-app/79/0714-01" ] }, { "cite": "265 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "176" }, { "page": "176" }, { "page": "175" } ], "opinion_index": 0 }, { "cite": "300 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559906 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "148" }, { "page": "148-49" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0142-01" ] } ], "analysis": { "cardinality": 402, "char_count": 8049, "ocr_confidence": 0.767, "pagerank": { "raw": 1.4741848696509107e-07, "percentile": 0.6598463848664536 }, "sha256": "995fe61d9cc01c2c63525ce55145de0798748be2fd46f8d68d2a15fbada5971a", "simhash": "1:c8aff72275132873", "word_count": 1342 }, "last_updated": "2023-07-14T18:25:49.576177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ORR concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. JEROME JEWETT JOHNSON, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThe State moved to dismiss this appeal on the grounds that the appeal is premature, arguing (1) that no final judgment had been entered in this case and (2) that the trial judge\u2019s order was interlocutory and affected no substantial right. In fact, a final judgment was entered on 8 November 1988 when the trial judge sentenced the defendant to probation on a number of special conditions in accordance with the terms of the negotiated plea arrangement. This appeal is not interlocutory but is instead specifically allowed by G.S. l-277(a) which permits an appeal from a judicial order which \u201caffects a substantial right\u201d or \u201cgrants ... a new trial.\u201d This judgment affects the substantial due process right of the defendant not to have the State withdraw from a plea bargain arrangement after that plea has been accepted by the trial court. This is a substantial right. State v. Collins, 300 N.C. 142, 265 S.E.2d 172 (1980). The defendant\u2019s constitutional right against double jeopardy is also at issue in this case where the defendant would be subjected to a second trial on the same charges. The effect of the trial judge\u2019s order vacating the judgment would be to grant the State a new trial on the same charges after an adjudication of guilty. The State\u2019s Motion to Dismiss the Appeal is denied.\nThe defendant argues that the trial court erred on two counts. The trial court found as a fact that the assistant district attorney who negotiated the plea at issue in this case did not agree to forego prosecution of the defendant for any drug offenses the defendant may have committed prior to 8 November 1988. We find that such a conclusion is contrary to the evidence.\nThe plea bargain in this case states in unambiguous language in the first sentence of that agreement:\nUpon tender and acceptance of this plea, the State agrees that it will dismiss all other pending charges and agrees not to prosecute or seek any forfeiture against the defendant for any drug offense which might have occurred prior to November 8, 1988.\nThe State wishes to vacate the finding of guilty and the sentence based on this plea bargain contending that \u201cthe underlying plea agreement was entered into upon a misapprehension of fact and does not accurately reflect the intentions of the state.\u201d This negotiated plea was signed by the defendant, two attorneys for the defendant and by the assistant district attorney who stated during the hearing on the motion to vacate:\nI read the document over. I did not see the first sentence. ... I didn\u2019t read that as carefully as I probably should have. ... I went ahead and signed it. ... I should have read [the plea agreement] more carefully than I did, but I failed to realize the full impact of what was in the first sentence. . . .\nThe assistant district attorney testified that he was present in the courtroom when the judge took the plea; he was present in the courtroom while the trial judge read the plea agreement out loud and he was aware that the trial judge was reading the agreement to the parties but did not listen to the judge because he \u201cwas involved in talking with the participants in [another] case.\u201d On cross-examination, he stated: \u201cI looked at [the plea agreement] and I read it and thought that I understood it prior to the time I signed it.\u201d The evidence in this case does not support the contention that the State did not agree to forego prosecution of drug offenses prior to 8 November 1988.\nThe- North Carolina Supreme Court case of State v. Collins, id., is controlling. In an unanimous opinion, the Supreme Court stated: \u201cThe State may withdraw from a plea bargain arrangement at any time prior to, but not after, the actual entry of the guilty plea by defendant. . . .\u201d State v. Collins, 300 N.C. at 148, 265 S.E.2d at 176. Citing People v. Heiler, 79 Mich. App. 714 at 721-22, 262 N.W.2d 890 at 895 (1977), the court stated that plea bargain arrangements \u201care not binding upon the prosecutor . . . until they receive judicial sanction. . . .\u201d State v. Collins, 300 N.C. at 148-49, 265 S.E.2d at 176.\nIn Collins, the court noted that \u201ca constitutional right to enforcement of plea proposals,\u201d according to the landmark United States Supreme Court decision, Santobello v. New York, 404 U.S. 257 (1971), derives from \u201ctwo constitutional guarantees, namely, the right to fundamental fairness of substantive due process and the sixth amendment right to effective assistance of counsel.\u201d State v. Collins, 300 N.C. at 147, 265 S.E.2d at 175, quoting Cooper v. United States, 594 F.2d 12, 18 (4th Cir. 1979).\nThe right of a defendant in a criminal proceeding to be subjected to but one prosecution for the same offense would also be violated here if the original plea bargain were set aside. Double jeopardy is prohibited by the Fifth Amendment to the Constitution of the United States and by Article I, Section 19 of the Constitution of North Carolina. See State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977). The plea had been adjudicated and the sentence had been imposed. No valid reason has been offered by the State to set aside that plea and adjudication. Therefore, the defendant may not again be tried for the charges which underlie the indictments without twice being placed in jeopardy. The trial judge\u2019s setting aside the judgment of 8 November 1988 which had been entered on a negotiated plea agreement was error. It is reversed. The plea and the original sentence stand.\nReversed.\nChief Judge HEDRICK and Judge ORR concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L, Joyner, for the State.", "Loflin & Loflin, by Thomas F. Loflin III, and Hoyle & Hoyle, by Kenneth R. Hoyle, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. JEROME JEWETT JOHNSON, Defendant\nNo. 8911SC262\n(Filed 3 October 1989)\n1. Criminal Law \u00a7 148\u2014 judgment based on plea negotiation\u2014 trial court\u2019s order vacating judgment appealable\nDefendant could properly appeal from the trial court\u2019s order vacating and setting aside an earlier judgment based on plea negotiation and directing that the case be tried, since a final judgment was entered when the trial judge sentenced defendaht to probation on a number of special conditions in accordance with the terms of the negotiated plea agreement; the order affected defendant\u2019s substantial due process right not to have the State withdraw from a plea bargain arrangement after that plea had been accepted by the trial court; and defendant\u2019s constitutional right against double jeopardy was also at issue where defendant would be subjected to a second trial on the same charges.\n2. Criminal Law \u00a7 23.1\u2014 plea bargain \u2014agreement binding on assistant district attorney who signed it\nThe trial court erred in finding that the assistant district attorney who negotiated the plea at issue in this case did not agree to forego prosecution of defendant for any drug offenses defendant may have committed prior to 8 November 1988, since the plea bargain agreement, signed by defendant, his attorneys, and the assistant district attorney, specifically stated to the contrary.\n3. Criminal Law \u00a7 23.1; Constitutional Law \u00a7 34\u2014 judgment based on plea bargain \u2014setting aside \u2014violation of defendant\u2019s right against double jeopardy\nThe trial court erred in setting aside a judgment based on plea negotiation, since to do so would violate defendant\u2019s right against double jeopardy.\nAppeal by defendant from Bowen (Wiley FJ, Judge. Order entered 7 November 1988 in Superior Court, LEE County. Heard in the Court of Appeals 11 September 1989.\nPursuant to a negotiated plea accepted by the presiding judge on 8 November 1988, the defendant pled no contest to a charge of possession with intent to sell and deliver a controlled substance and received the sentence to which he had agreed. On 10 November 1988, the presiding judge, on the State\u2019s motion over defendant\u2019s objections, entered an order vacating and setting aside that judgment and directing that these two indictments be returned to the trial calendar. The defendant appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L, Joyner, for the State.\nLoflin & Loflin, by Thomas F. Loflin III, and Hoyle & Hoyle, by Kenneth R. Hoyle, for defendant-appellant." }, "file_name": "0757-01", "first_page_order": 785, "last_page_order": 788 }