              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-808

                                 Filed: 4 June 2019

Cumberland County, No. 15CRS063852

STATE OF NORTH CAROLINA

             v.

BOYD DOUGLAS MARSH, Defendant.


      Appeal by Defendant from judgment entered 29 November 2017 by Judge

Claire V. Hill in Cumberland County Superior Court. Heard in the Court of Appeals

13 March 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott
      Stroud, for the State.

      Kimberly P. Hoppin for the Defendant.


      DILLON, Judge.


      Defendant Boyd Douglas Marsh appeals the trial court’s denial of his motion

to withdraw his guilty plea. Alternatively, he appeals the sentence imposed by the

trial court, alleging that it was inconsistent with the sentence outlined in his plea

agreement with the State. After careful review, we vacate the trial court’s judgment

and remand for further proceedings.

                                   I. Background
                                   STATE V. MARSH

                                  Opinion of the Court



      Defendant was charged with multiple counts of rape, kidnapping, and a

number of related offenses, involving multiple victims and occurring between 1998

and 2015. In March 2017, Defendant was tried by a jury.

      On the third day of trial, Defendant negotiated a plea agreement with the State

whereby he pleaded guilty to a number of offenses. Based on the plea agreement,

Defendant would receive a single, consolidated active sentence of two hundred ninety

(290) to four hundred eight (408) months imprisonment.

      Over the next four weeks, and prior to sentencing, Defendant wrote two letters

to the trial court. In them, he proclaimed his innocence to some of the charges and

suggested his desire to withdraw from his plea agreement.             The trial court

acknowledged receipt of the letters and forwarded them to Defendant’s attorney.

      Several months later, in November 2017, Defendant appeared before the trial

court for sentencing. During the hearing, he formally moved to withdraw his guilty

plea. The trial court denied Defendant’s motion. The trial court, then, proceeded

with sentencing.    Though the plea agreement called for a single, consolidated

judgment imposing a single sentence, the trial court entered two judgments, one for

the 2015 offenses and one for the 1998 offenses, based on the fact that the sentencing

grid in use in 1998 was different from the grid in use in 2015. Specifically, the trial

court entered a judgment, sentencing Defendant to a term of two hundred ninety

(290) to four hundred eight (408) months for the 2015 offenses, a sentence which



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                                         Opinion of the Court



matched the sentence Defendant agreed to in his plea agreement with the State. And

for the 1998 offenses, the trial court entered a separate judgment with a slightly

shorter sentence of two hundred eighty-eight (288) to three hundred fifty-five (355)

months imprisonment. The trial court did, though, order that the two sentences

would run concurrently, such that Defendant would not actually serve any longer

than contemplated in his plea agreement with the State.

       Defendant gave oral notice of appeal in open court.1

                                            II. Analysis

       Defendant makes two arguments on appeal. First, Defendant argues that the

trial court erred by denying his motion to withdraw his guilty plea prior to being

sentenced. Defendant made it known to the trial court quickly that he did not like

the plea agreement into which he had entered. But his attorney did not formally

move on his behalf to withdraw the plea until much later. Our Supreme Court has

instructed that a defendant’s burden is low when his motion is made soon after

entering his plea. See State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 162-63




       1  Defendant’s oral notice of appeal adequately preserved his arguments with respect to the
trial judge’s denial of his motion to withdraw his guilty plea. See N.C. R. App. P. 4(a). However,
Defendant failed to object to any portion of the trial judge’s sentencing at trial, and further did not
make any reference to sentencing procedures in his notice of appeal. Contemporaneous with this
appeal, Defendant filed a motion for writ of certiorari asking that we address his arguments as to
sentencing despite errors in preservation. We elect to grant Defendant’s motion to reach the merits of
Defendant’s appeal.

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                                  STATE V. MARSH

                                  Opinion of the Court



(1990). In any event, because we conclude that Defendant is entitled to relief based

on his second appellate argument, we do not need to decide this first issue.

      In his second argument, Defendant contends that the trial court erred in

imposing a sentence inconsistent with the sentence set out in his plea agreement

without informing Defendant that he had a right to withdraw his guilty plea. For the

following reasons, since we conclude that the concurrent sentences imposed by the

trial court differed from the single sentence agreed to by Defendant in his plea

agreement, we agree with Defendant.

      Section 15A-1024 of our General Statutes provides that a defendant must be

informed and allowed to withdraw his plea where the sentence to be imposed differs

from what was agreed upon:

             If at the time of sentencing, the judge for any reason
             determines to impose a sentence other than provided for in
             a plea arrangement between the parties, the judge must
             inform the defendant of that fact and inform the defendant
             that he may withdraw his plea. Upon withdrawal, the
             defendant is entitled to a continuance until the next
             session of court.

N.C. Gen. Stat. § 15A-1024 (2017) (emphasis added).

      Here, Defendant’s plea arrangement for all his 1998 and 2015 offenses which

stated, in relevant part, that Defendant would “receive a consolidated active sentence

of 290 to 408 months.” The trial court judge, though, determined that Defendant’s

1998 offenses fell under a different sentencing grid than his 2015 offenses, where the



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                                          STATE V. MARSH

                                          Opinion of the Court



1998 offenses warranted lesser minimum and maximum sentences. In an apparent

effort to accommodate this difference, the judge entered two separate, but concurrent,

sentences.

         The State contends that, though the sentences entered were objectively

different than the sentence described in the plea agreement, any possible error was

harmless because the judge’s sentence was practically the same. That is, the time

Defendant will serve under the concurrent sentences is the same as he would have

served if he had received the single sentence contemplated in his agreement with the

State.

         Much of our precedent where relief has been granted under Section 15A-1024

involves instances where the sentence imposed by the judge was significantly

different from or more severe than that agreed upon in the defendant’s plea

agreement.2 However, our precedent is clear that any change by the trial judge in

the sentence that was agreed upon by the defendant and the State, even a change

benefitting the defendant, requires the judge to give the defendant an opportunity to

withdraw his guilty plea.           For instance, our Supreme Court has suggested the


         2See e.g., State v. Puckett, 299 N.C. 727, 730-31, 264 S.E.2d 96, 98-9 (1980) (vacating the trial
court’s sentence because the court inappropriately sentenced the defendant to two consecutive two-
year sentences, inconsistent with the plea deal agreeing to a sentence of no more than two years total);
State v. Carricker, 180 N.C. App. 470, 471-72, 637 S.E.2d 557, 558-59 (2006) (vacating the trial court’s
sentence because it revoked the defendant’s nursing license, where her plea agreement did not include
license revocation); State v. Rhodes, 163 N.C. App. 191, 195, 592 S.E.2d 731, 733 (2004) (vacating the
sentence because the trial court sentenced the defendant to an active sentence of twenty-one (21) to
twenty-six (26) months incarceration, inconsistent with the plea agreement for a sentence of twenty-
one (21) to twenty-six (26) months incarceration to be suspended for three years).

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                                   STATE V. MARSH

                                  Opinion of the Court



meaning of Section 15A-1024 to include situations where the sentence imposed is

merely “different from” the sentence agreed to:

             The equally unambiguous language of 15A-1024 discloses
             that this statute applies in cases in which the trial judge
             does not reject a plea arrangement when it is presented to
             him but hears the evidence and at the time for sentencing
             determines that a sentence different from that provided for
             in the plea arrangement must be imposed. Under the
             express provisions of this statute a defendant is entitled to
             withdraw his plea and as a matter of right have his case
             continued until the next term.

State v. Williams, 291 N.C. 442, 446-47, 230 S.E.2d 515, 517-18 (1976) (emphasis

added).

      And our Court has held that Section 15A-1024 is implicated even where the

sentence imposed may be more favorable to the defendant that that which he had

agreed to. State v. Wall, 167 N.C. App. 312, 316, 605 S.E.2d 205, 208 (2004). In Wall,

the trial judge sentenced the defendant to a sentence less than the sentence described

in the defendant’s plea agreement. Id. Our Court held that the plain language of

Section 15A-1024 applied when any sentence “different from” the plea agreement was

imposed and vacated the defendant’s judgment accordingly. Id. at 317-18, 605 S.E.2d

at 208-09. Further, in Wall, we noted that the Official Commentary to Section 15A-

1024 demonstrates that our General Assembly intended for the statute “to apply if

there is any change at all concerning the substance[]” of the sentence imposed,

rejecting to use the phrase “more severe than” in the statutory language. Wall, 167



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                                  STATE V. MARSH

                                  Opinion of the Court



N.C. at 316, 605 S.E.2d at 208 (quoting N.C. Gen. Stat. § 15A-1024) (emphasis

added)).

      We conclude that the two separate judgments/sentences imposed by the trial

judge are different than the single, consolidated judgment/sentence that Defendant

had agreed to. See State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247

(2002) (“A plea agreement is treated as contractual in nature[.]”). Though the total

amount of time served in the concurrent sentences is materially the same as the

single consolidated sentence in Defendant’s plea agreement, Defendant is still liable

for two separate judgments and two separate sentences. This is not what he agreed

to. And, for example, if for any reason one of the judgments was later vacated,

Defendant would still be left with an outstanding judgment and corresponding

sentence.

      We recognize that, ordinarily, “[a] judgment will not be disturbed because of

sentencing procedures unless there is a showing of abuse of discretion, procedural

conduct prejudicial to defendant, circumstances which manifest inherent unfairness

and injustice, or conduct which offends the public sense of fair play.” State v. Pope,

257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962). However, our review of the case law

shows no instances where a harmless or prejudicial error standard has been applied

in cases involving Section 15A-1024, as plea arrangements are contractual in nature.

                                   III. Conclusion



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                                   STATE V. MARSH

                                  Opinion of the Court



      We hold that the trial court was required to inform Defendant of his right to

withdraw his guilty plea pursuant to Section 15A-1024. We, therefore, must vacate

the trial court’s judgments and remand the matter for further proceedings consistent

with this opinion. Since Defendant was entitled to withdraw his plea based on the

sentencing, we conclude that Defendant is no longer bound by the plea arrangement;

but neither is the State. See Puckett, 299 N.C. at 731, 264 S.E.2d at 99 (remanding

under Section 15A-1024 with instructions “that the judgments of the trial court be

vacated, that defendant's plea of guilty be stricken, and that the cases be reinstated

on the trial docket”). On remand, the State and Defendant are, of course, free to enter

into a new plea arrangement.

      VACATED AND REMANDED.

      Judges BRYANT and ARROWOOD concur.




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