               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1021

                                  Filed: 2 May 2017

Pasquotank County, No. 15 CRS 144

STATE OF NORTH CAROLINA, Plaintiff,

              v.

ROCKY DARYL WHITEHURST, JR., Defendant.


        Appeal by defendant from judgment entered 5 August 2015 by Judge J. Carlton

Cole in Pasquotank County Superior Court. Heard in the Court of Appeals 3 April

2017.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith
        Clayton, for the State.

        Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.


        ZACHARY, Judge.


        Rocky Daryl Whitehurst, Jr. (defendant) appeals from the judgment entered

upon his entry of a plea of guilty to the offense of obtaining property by false

pretenses. On appeal, defendant argues that the trial court erred by denying his

motion to withdraw his guilty plea. We conclude that the trial court did not err by

denying his motion. Defendant also argues, and the State agrees, that the trial court

erred by ordering defendant to pay $200 in restitution when no evidentiary support

was offered for the amount of restitution. We conclude that the trial court erred in

entering its restitution award.
                                STATE V. WHITEHURST

                                  Opinion of the Court



                                       I. Background

      On 9 March 2015, the Grand Jury for Pasquotank County returned an

indictment charging defendant with obtaining property by false pretenses and

possession of stolen property. Defendant was arrested for these offenses on 24 April

2015, and was placed in custody. On 8 June 2015, defendant appeared before the

trial court. Defendant asked to have counsel appointed to represent him on the

instant charges, and expressed a wish to resolve the case on that day if possible.

Accordingly, the trial court appointed counsel for defendant and held the case open.

      Later that day, defendant again appeared before the court. Defendant’s

attorney informed the trial court that defendant would plead guilty to one count of

obtaining property by false pretenses, pursuant to a plea arrangement. The trial

court asked defendant the questions on the plea transcript form, and defendant

answered under oath. Defendant entered a plea of guilty pursuant to North Carolina

v. Alford, 400 U.S. 25, 37-39, 27 L. Ed. 2d 162, 171-72 (1970), which held that a

defendant may enter a guilty plea containing a protestation of innocence when the

defendant intelligently concludes that a guilty plea is in his best interest. Defendant

acknowledged that under the terms of the plea arrangement he would plead guilty to

one count of obtaining property by false pretenses and receive a probationary

sentence, and that the State would dismiss the charge of possession of stolen

property. After the plea transcript was completed, the prosecutor summarized the



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                                  Opinion of the Court



factual basis for the charge against defendant.          Defendant did not object to the

prosecutor’s summary of the factual support for the charges. Prior to sentencing, the

trial court adjourned for the day. The next day, 9 June 2015, defendant appeared in

court for sentencing.   His counsel asked for a continuance and the trial court

continued defendant’s sentencing until 5 August 2015.

      On 3 August 2015, defendant filed a motion asking the trial court to allow him

to withdraw his plea of guilty. The trial court conducted a sentencing proceeding on

5 August 2015, at which defendant’s counsel asked the court to set aside defendant’s

plea. After hearing from defense counsel and the State, the trial court denied

defendant’s motion to withdraw his plea of guilty, sentenced defendant to a

suspended term of 8 to 19 months’ imprisonment, and placed defendant on 36 months

of supervised probation. Defendant appealed to this Court.

                 II. Denial of Defendant’s Motion to Withdraw Guilty Plea

                                   A. Standard of Review

      “In reviewing a trial court’s denial of a defendant’s motion to withdraw a guilty

plea made before sentencing, ‘the appellate court does not apply an abuse of discretion

standard, but instead makes an independent review of the record.’ ” State v. Robinson,

177 N.C. App. 225, 229, 628 S.E.2d 252, 254 (2006) (quoting State v. Marshburn, 109

N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993)). “There is no absolute right to

withdraw a plea of guilty, however, a criminal defendant seeking to withdraw such a



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                                   Opinion of the Court



plea before sentencing is ‘generally accorded that right if he can show any fair and

just reason.’ ” Marshburn, 109 N.C. App. at 107-08, 425 S.E.2d at 717 (quoting State

v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990)). “The defendant has the

burden of showing that his motion to withdraw is supported by some fair and just

reason.” Marshburn at at 108, 425 S.E.2d at 717 (internal quotation omitted). “There

is no established rule in North Carolina governing the standard by which a judge is

to decide a motion to withdraw a plea of guilty prior to sentencing.” Handy, 326 N.C.

at 538, 391 S.E.2d at 162. However:

             [s]ome of the factors which favor withdrawal include
             whether the defendant has asserted legal innocence, the
             strength of the State’s proffer of evidence, the length of
             time between entry of the guilty plea and the desire to
             change it, and whether the accused has had competent
             counsel at all relevant times. Misunderstanding of the
             consequences of a guilty plea, hasty entry, confusion, and
             coercion are also factors for consideration.

Handy at 539, 391 S.E.2d at 163.

                                    B. Record on Appeal

      It is well-established that “[t]he appellate courts can judicially know only what

appears of record.” State v. Price, 344 N.C. 583, 593, 476 S.E.2d 317, 323 (1996)

(internal quotation omitted). Thus, “[t]his Court’s review on appeal is limited to what

is in the record or in the designated verbatim transcript of proceedings. Rule 9(a),

N.C. Rules App. Proc. An appellate court cannot assume or speculate that there was

prejudicial error when none appears on the record before it.” State v. Moore, 75 N.C.


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                                   Opinion of the Court



App. 543, 548, 331 S.E.2d 251, 254 (1985). In this case, defendant’s appellate

arguments are largely based upon certain assertions which, upon examination of the

record, we determine to be inaccurate. As a result, we find it necessary to clarify the

factual history of this case, as reflected by the record on appeal.

      The transcript of defendant’s appearance in court on 8 June 2015 establishes

that defendant asked to have counsel appointed and expressed a wish to resolve the

pending charges that day if possible, as indicated in the following dialogue:

             THE COURT: Mr. Whitehurst, your new court date will be
             August 3rd.

             DEFENDANT: Is there any way I can handle it today? I
             was supposed to already have a lawyer.

             PROSECUTOR: We can see if anyone is able to talk to Mr.
             Whitehurst.

      On appeal, defendant asserts that on 8 June 2015 he asked “if he could handle

his case that day, so he could get out of jail,” and that he “clearly stated when he was

brought to court on 8 June 2015, that he wanted to handle his case that day, so he

could get out of jail.” On the basis of these contentions, defendant argues that

defendant entered a plea of guilty “for the express purpose of getting out of jail” and

that there is “no doubt that [defendant] would not have entered a guilty plea” had he

not been in custody. (emphasis added). There is no support in the record for the

assertion that defendant informed the trial court that he wanted to resolve his case

promptly “so he could get out of jail.” A review of the transcript shows that defendant


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                                   Opinion of the Court



neither mentioned the fact of his incarceration nor shared any other information

related to his motivation for seeking a prompt resolution of the charges against him,

and we disregard defendant’s appellate contentions to the contrary.

      As discussed above, the proceedings concluded on 8 June 2015 after defendant

had pleaded guilty to obtaining property by false pretenses, but before defendant had

been sentenced. Defendant contends on appeal that the court recessed overnight

because defendant “objected as the State was presenting the factual basis for his

plea,” and that “[w]ith [defendant] disputing the factual basis for his plea, the trial

court decided to adjourn court for the day[.]” Defendant further asserts that “[w]hen

[defendant] disputed the factual basis for his plea, the court halted the proceedings

and ordered [defendant] returned to the jail until the following day.”

      However, the record does not support this assertion. The transcript includes

no statements by defendant or his counsel indicating that defendant disputed the

accuracy of the prosecutor’s factual summary. We note that the prosecutor’s summary

included a recitation of items that had been stolen and were later sold to a pawn shop

by defendant and two codefendants. After the prosecutor listed the stolen objects, the

following dialogue took place:

             PROSECUTOR: Two shovels, a Pepsi hat, toys and bottles,
             a Pepsi thermometer and a Pepsi carton. And that would
             be the showing.

             THE COURT: Mr. Sellers?



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                                  Opinion of the Court



             DEFENSE COUNSEL: Yes, your Honor.

             THE COURT: Anything as to the facts?

             DEFENSE COUNSEL: Your Honor, Mr. Whitehurst was
             aware of at least one thermometer. (indiscernible).

             THE COURT: Bring him back tomorrow. Mr. Sheriff, if
             you will adjourn us.

      We discern nothing in this colloquy to indicate that defendant disputed the

State’s proffer of a factual basis for the charges. In fact, his counsel acknowledged

that defendant was “aware of at least one thermometer” among the stolen items. We

conclude that the record does not establish that defendant objected to the prosecutor’s

summary of the evidence and that the transcript does not indicate a specific reason

for the court’s decision to resume the proceedings on the following day. In considering

the merits of defendant’s appellate arguments, we will disregard his contention that

defendant objected to the State’s summary of the factual basis for the charges.

      Defendant has also mischaracterized in two respects the proceedings that

occurred on 9 June 2015. First, defendant repeatedly states on appeal that when he

appeared in court on 9 June 2015, “the trial court refused to hear” his case because

he “was dressed inappropriately for court[,]” that he “was unable to enter the

courtroom due to being inappropriately dressed,” and that the trial court “would not

hear [his] motion on June 9, 2015, because [he] was not dressed appropriately for

court.” The transcript, however, reflects that at the outset of the hearing on 9 June



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                                 Opinion of the Court



2015, defendant’s counsel noted that defendant was wearing shorts because he had

just been released from custody, and asked that the sentencing be continued. When

the prosecutor indicated that the parties might have a disagreement regarding the

amount of restitution, the trial court granted the continuance that had been

requested by defendant.     The trial court neither “refused to hear” defendant’s

sentencing proceeding nor made any comment concerning defendant’s appearance.

This assertion is simply not supported by the record.

      In addition, defendant repeatedly asserts that during defendant’s brief

appearance before the trial court on 9 June 2015, he “moved to withdraw his Alford

plea entered the previous day[.]” Defendant contends that he “promptly” moved to set

aside his plea, on the grounds that on the day after pleading guilty defendant

“immediately came to court and asked to withdraw his Alford plea[.]” However, a

review of the transcript of the court proceedings conducted on 9 June 2015 shows that

neither defendant nor his trial counsel asked to withdraw his guilty plea or made any

statements concerning defendant’s satisfaction with the terms of the plea

arrangement. In addition, the written motion for withdrawal of the guilty plea was

filed on 3 August 2015, approximately 55 days after defendant entered his plea,




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                                        Opinion of the Court



rather than the next morning as defendant alleges. We conclude that there is no

evidence that defendant moved to withdraw his plea of guilty prior to 3 August 2015.1

       In sum, the record establishes the following: (1) On 8 June 2015, defendant

expressed a desire to resolve the case on that day, but neither stated that he was

motivated by a wish to be released from jail nor indicated any other specific reason

for this course of action; (2) At the plea hearing conducted on 8 June 2015, defendant

did not object to the prosecutor’s summary of the factual support for the charges

against defendant; (3) On 9 June 2015, the trial court did not express an opinion

regarding defendant’s clothing or refuse to consider defendant’s sentencing hearing

because of defendant’s “inappropriate” attire; and (4) On 9 June 2015, defendant did

not move to withdraw his plea of guilty or make any other representation regarding

his satisfaction with the plea arrangement.

                                             C. Discussion

       On appeal, defendant argues that the trial court erred by denying his motion

to withdraw his plea of guilty on the grounds that at the hearing on 5 August 2015

he offered a “fair and just reason” for withdrawal. We disagree.




       1 On 16 April 2016, eight months after defendant’s sentencing hearing, the trial court signed
a written order denying defendant’s motion to withdraw his guilty plea, which included a finding that
defendant moved to withdraw his guilty plea on 9 June 2015. We conclude that this finding, which is
contradicted by the transcript of the 9 June 2015 hearing, was erroneously included in the written
order.

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                                   Opinion of the Court



       Defendant maintains that he “hastily entered his Alford plea while he was

under duress.” Defendant has not identified any evidence that his plea was entered

in haste and defendant does not dispute that he was arrested on the present charges

in April, 2015, and entered a plea of guilty more than a month later. We conclude

that there is no evidence that defendant’s plea was entered “hastily.” Defendant’s

assertion that he entered a plea “under duress” is supported solely by the fact that

defendant was in custody when he pleaded guilty. Defendant appears to suggest that

any guilty plea entered while a defendant is incarcerated is entered under duress,

because there is “no stronger form of coercion or duress than being held in jail against

one’s will.” Defendant cites no authority for the proposition that the fact that a

defendant is incarcerated is per se evidence of coercion, and we decline to adopt the

position proposed by defendant.

       Defendant argues next that he “promptly moved to withdraw his Alford guilty

plea the next day” after its entry. We have concluded that the record shows that

defendant moved to withdraw his plea of guilty on 3 August 2015, rather than on “the

next day” after he pleaded guilty. On appeal, defendant does not explain his delay or

offer any argument that his motion of 3 August 2015 should be treated as one that

was made promptly after the entry of the plea. We conclude that defendant has failed

to establish any right to relief on the basis of the timing of his motion to withdraw his

plea of guilty.



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                                  Opinion of the Court



      Defendant also contends that the “State’s case against [him] was weak.” The

basis for this assertion is not entirely clear.      On 8 June 2015, the prosecutor

summarized the factual basis for the charges against defendant. The prosecutor

stated that certain items were reported stolen by their owner; that defendant and two

others pawned the items in a local pawn shop; and that the items were recovered at

the pawn shop. The prosecutor’s summary, which defendant does not challenge,

indicates that the case against defendant was simple and straightforward.

Defendant does not identify evidentiary issues as to the identity of either the stolen

items or the individuals who pawned them, and does not contend that the case

presented complex legal or forensic issues. We conclude that defendant has failed to

effectively challenge the strength of the State’s evidence against him.

      In addition, defendant maintains that he “asserted his legal innocence by

contesting the factual basis for his plea” and by entering an Alford plea. As discussed

above, there is no evidence that defendant challenged the factual basis for his plea.

Defendant also argues that his decision to enter an Alford guilty plea is evidence of

his assertion of innocence. Defendant supports this contention with a quotation from

State v. Chery, 203 N.C. App. 310, 314, 691 S.E.2d 40, 44 (2010), in which we held

that, for purposes of analyzing the defendant’s motion to withdraw his guilty plea,

“there is no material difference between a no contest plea and an Alford plea.”




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However, in Chery this Court rejected the defendant’s argument that his entry of an

Alford plea established his assertion of legal innocence:

             As one of the bases for his motion to withdraw his plea,
             defendant relies heavily upon the fact that he entered a no
             contest/Alford plea rather than pleading guilty to the
             conspiracy charge. . . . [Defendant] assert[s] that his plea,
             in and of itself, equated to a conclusive assertion of
             innocence. . . . We hold the fact that the plea that defendant
             seeks to withdraw was a no contest or an Alford plea does
             not conclusively establish the factor of assertion of legal
             innocence for purposes of the Handy analysis.

Chery, 203 N.C. App. at 314-15, 691 S.E.2d at 44. We conclude that defendant has

failed to show that he has asserted his legal innocence. As a result, we do not consider

this contention as a basis for withdrawal of his guilty plea.

      Defendant also asserts that the withdrawal of his guilty plea would not have

prejudiced the State. However, defendant has not shown that the factors identified

in Handy support withdrawal of his plea, and we conclude that defendant has failed

to establish that he had a fair and just reason to withdraw his plea of guilty. “[T]he

burden does not shift to the State to show prejudice until the defendant has

established a fair and just reason existed to withdraw his plea. Because defendant

has failed to meet his burden of showing a fair and just reason existed to withdraw

his plea, we do not address prejudice against the State.” Chery, 203 N.C. App. at 318,

691 S.E.2d at 46-47 (citations omitted).

                                       III. Restitution



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                                   Opinion of the Court



      Defendant next argues, and the State agrees, that the trial court erred by

ordering him to pay restitution in the absence of any evidence to support the amount

of restitution. We conclude that this argument has merit.

      “The amount of restitution recommended by the trial court must be supported

by evidence adduced at trial or at sentencing. The unsworn statement of the

prosecutor is insufficient to support the amount of restitution ordered.” State v.

Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (internal quotation and

citation omitted).

      In this case, the trial court signed an order directing defendant to pay $200 in

restitution on 8 June 2015. No testimony was adduced as to the amount of restitution

on 8 June 2015, and the record does not include any other evidence, such as a sworn

affidavit, upon which the trial court could have based its restitution order. We

conclude that the restitution order must be vacated and remanded to the trial court.

                                        III. Conclusion

      For the reasons discussed above, we conclude that the trial court did not err by

denying defendant’s motion to withdraw his plea of guilty. We further conclude that

the trial court erred in entering its restitution order.

      NO ERROR IN PART, VACATED AND REMANDED IN PART.

      Chief Judge McGEE and Judge HUNTER concur.




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