An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-969
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                      Cleveland County
                                              Nos. 11 CRS 1130-31, 86
ROBERT LEWIS WILSON, JR.



      On writ of certiorari from judgment entered 23 January 2013

by Judge Linwood O. Foust in Superior Court, Cleveland County.

Heard in the Court of Appeals 29 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ryan C. Zellar, for the State.

      Diepenbrock Law Office, P.A., by J. Thomas Diepenbrock, for
      Defendant-Appellant.


      McGEE, Judge.


      Robert Lewis Wilson, Jr. (“Defendant”) pleaded guilty to

possession     with    intent     to   sell    or   deliver     a   schedule      II

controlled     substance,       sale    or    delivery    of    a   schedule      II

controlled substance, possession with intent to sell or deliver

cocaine, sale or delivery of cocaine, and attainment of habitual

felon status.       The trial court consolidated the convictions and
                                          -2-
sentenced Defendant on 23 January 2013 to incarceration for a

term of 92 to 120 months.

       Defendant filed a petition for writ of certiorari on 25

October       2013.        In    this    petition,       counsel    for    Defendant

acknowledged that Defendant may not have given timely notice of

appeal and that counsel could not identify an issue that could

properly be raised on appeal.               Counsel asked this Court to issue

a writ of certiorari to review the issue of whether the trial

court       properly      determined     there     was    a   factual     basis   for

Defendant’s        plea    to   attaining    the    status    of   habitual   felon.

Four days later, Defendant filed an amended petition for writ of

certiorari which is identical to the first petition except for

the addition of a verification.                    The petition as amended has

been referred to this panel for decision.

       In    our   discretion,      we   allow     the   petition    and    consider

Defendant’s argument that the trial court erred in determining

that     a    factual      basis    supported       Defendant’s      admission     to

attaining the status of habitual felon.

       “The judge may not accept a plea of guilty or no contest

without first determining that there is a factual basis for the

plea.”       N.C. Gen. Stat. § 15A-1022(c) (2013).

              This   determination   may  be   based   upon
              information including but not limited to:
                                       -3-


           (1) A   statement          of     the         facts     by   the
           prosecutor.

           (2) A written statement of the defendant.

           (3) An     examination           of      the      presentence
           report.

           (4) Sworn   testimony,                which     may     include
           reliable hearsay.

           (5) A statement        of       facts     by     the    defense
           counsel.

Id.

      In the present case, the habitual felon indictment lists

three prior felony convictions entered during three different

sessions of court based upon offenses committed on 20 August

1992, 7 May 2004, and 9 February 2005.                       At the plea hearing,

Defendant verbally stated there were facts to support his plea,

that he stipulated to a factual basis for the plea, and that he

consented to the State summarizing the evidence relating to the

factual   basis.      The     State    subsequently              narrated     the    facts

supporting   Defendant’s      habitual           felon    status     arising        out   of

Defendant’s commission of felony offenses committed in August

1992, May 2004, and February 2005.

      Defendant    contends    that        the    trial     court’s     determination

that there was a factual basis for Defendant’s admission                                  to

habitual felon status “is not supported in the record” and that
                                          -4-
the “State’s summary did not provide the factual basis.”                           For

support, Defendant cites State v. Sinclair, 301 N.C. 193, 270

S.E.2d 418 (1980), and State v. Agnew, 361 N.C. 333, 643 S.E.2d

581 (2007).

      In      Sinclair,     our        Supreme    Court      concluded     that      a

“defendant’s bare admission of guilt . . . does not provide the

‘factual basis’ contemplated by G.S. 15A-1022(c).”                        Sinclair,

301 N.C. at 199, 270 S.E.2d at 421.                 “The statute, if it is to

be    given    any    meaning     at    all,     must   contemplate      that     some

substantive material independent of the plea itself appear of

record which tends to show that [the] defendant is, in fact,

guilty.”      Id. at 199, 270 S.E.2d at 421-22.

      In Agnew, our Supreme Court considered the same issue and

concluded that “the transcript, defense counsel’s stipulation,

and    the    indictment    taken       together    did   not    contain        enough

information for an independent judicial determination of [the]

defendant’s actual guilt in the instant case.”                   Agnew, 361 N.C.

at 337, 643 S.E.2d at 584.

      The crux of Defendant’s argument is that the prosecutor for

the State “identified one of the three convictions used for

[habitual felon] status as being the 5 August 2004 conviction

for    the     sale    or   delivery       of     cocaine”     and    subsequently
                                    -5-
“contradicted her summary of the convictions utilized for the

habitual felon status” when she made the following statement:

           And, as to his prior record, the State
           counted his points for Assault on a Female
           from 2002, Cleveland County, and Assault on
           a Female from 2003, Cleveland County as
           Class 1 misdemeanors.    A series of felony
           breaking and enterings and larcenies that do
           not include the habitual one from October
           15, 1992 here in Cleveland County.

           A felonious possession of stolen goods from
           May 16, of 2000 here in Cleveland County and
           the G felony being sell and delivery of
           cocaine August 5, 2004 right here in
           Cleveland County.

           The offense that was used to elevate him to
           habitual for that date was for possession
           and not the sell.

However, as the State points out, the prosecutor’s statement

served only to make “clear that the August 5, 2004 charge that

was used to elevate Defendant to habitual felon status . . . was

different from the charge used on [D]efendant’s prior record

level worksheet[.]”        Indeed, the record shows that the habitual

felon indictment lists “the felony offense of Possession With

Intent to Sell or Deliver Cocaine” with a conviction date of 5

August    2004.      The    prior   record   level   worksheet   shows    a

conviction for “sell/deliver cocaine” on 5 August 2004.                  The

record does not indicate that the prosecutor contradicted her

summary   of   the   convictions    utilized   for   the   habitual   felon
                              -6-
status when she made the foregoing statement.   Defendant has not

shown error on this basis.

    Affirmed.

    Judges ELMORE and DAVIS concur.

    Report per Rule 30(e).
