An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1099

                                   Filed: 19 May 2015

Wake County, Nos. 11 CRS 7982, 213829-30

STATE OF NORTH CAROLINA

                v.

DEON MONTREL SYKES


          Appeal by defendant from judgment entered 10 January 2013 by Judge G.

Wayne Abernathy in Wake County Superior Court. Heard in the Court of Appeals 3

March 2015.


          Attorney General Roy Cooper, by Special Deputy Attorney General Katherine A.
          Murphy, for the State.

          James W. Carter for defendant-appellant.


          DIETZ, Judge.


          Defendant Deon Montrel Sykes appeals from the trial court’s denial of his

motion to withdraw his guilty plea.        Sykes was convicted of robbing a man at

gunpoint. The victim gave a description of his assailant and the getaway vehicle to

police.     Police pursued and ultimately used road spikes to stop the fleeing car,

recovering the victim’s wallet and a firearm that had been thrown from the vehicle.

Sykes was the only occupant of the vehicle matching the description of the
                                    STATE V. SYKES

                                   Opinion of the Court



perpetrator, and the other occupants were prepared to testify at trial that Sykes

robbed the victim at gunpoint.

         Sykes pleaded guilty at a hearing and stated under oath that he was in fact

guilty, that he admitted his guilt of his own free will, and that no one promised him

anything in return for his guilty plea. Six months later, at the start of his sentencing

hearing, Sykes moved to withdraw his guilty plea on the grounds that he was

innocent, his counsel was not competent, and he was coerced into pleading guilty by

the promise that the charges later would be dismissed.

         We reject Sykes’s arguments. Other than the bare assertions in his appellate

brief and his own self-serving testimony, Sykes points to no record evidence or

testimony supporting his claims. In light of the six-month delay between his guilty

plea and his attempt to withdraw it, we hold that Sykes has not met his burden to

establish fair and just reasons for withdrawal of his plea. Accordingly, we affirm the

trial court’s judgment.

                           Facts and Procedural History

         On 25 July 2011, the grand jury indicted Defendant Deon Montrel Sykes for

robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous

weapon, possession of a stolen firearm, and possession of a firearm by a convicted

felon.




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                                   Opinion of the Court



      On 17 July 2012, Sykes appeared in court to enter a plea of guilty pursuant to

a plea agreement with the State. During the hearing, Sykes was placed under oath

and the court went through a detailed plea colloquy. The State informed the court of

Sykes’s record level and points under the structured sentencing statutes, and Sykes

stipulated that the State’s determination was correct. After the trial court explained

the charges and potential punishments in detail, Sykes stated under oath that he

understood all of the charges against him and the nature of the potential

punishments. He also stated that he was entering the plea of his own free will, that

no one promised him anything in return for his plea, and that he was in fact guilty of

the charges.

      The State then provided a factual basis for the plea which showed the

following: On 17 June 2011, around 1:45 a.m., the victim, Antonio Demond Hopkins,

approached Officer S.N. Rogers at the VIP Club in Raleigh and informed her that he

was just robbed of his wallet and gold chain while in the parking lot. Hopkins told

Officer Rogers that he was approached by three black males, one holding a gun.

Hopkins described the man with the gun as having shoulder-length dreadlocks.

Hopkins provided a description of the car he saw the men get into, and another

Raleigh police officer quickly picked up pursuit of the vehicle.

      The pursuit ended in Fuquay-Varina after officers deployed stop sticks onto

the road. Sykes was inside the vehicle with two other black males and a female



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                                  Opinion of the Court



driver.   Sykes was the only one in the vehicle with shoulder-length dreadlocks.

Officers recovered the victim’s wallet and a .45 caliber gun which were discarded out

of the windows of the vehicle during the pursuit. Hopkins later identified Sykes in a

photographic lineup as the person who held the gun during the robbery, physically

took his gold chain, and was the key participant in the robbery.

      Under the plea agreement, the court would continue Sykes’s sentencing to a

later date in order for him to provide information to the State about an unrelated

investigation. The trial court found that there was a factual basis for the plea, that

Sykes was satisfied with his attorney, and that his plea was voluntary. The court

accepted Sykes’s plea in line with the plea agreement and continued his sentencing

to a future date to allow Sykes to provide information to the State.

      Six months later, on 10 January 2013, Sykes returned to court for sentencing.

At the hearing, Sykes moved to withdraw his guilty plea, stating that he only pleaded

guilty because his attorney informed him that he would get fourteen years in prison

if he went to trial and that he was prejudiced because he did not have faith in his

counsel’s ability to handle the case.          When questioned further about his

understanding of his plea agreement, Sykes stated that “[t]he agreement was if I

cooperated then this matter would be looked upon about my case getting dismissed.”

The court immediately placed him under oath and asked for more information about

the purported agreement to dismiss the charges. Sykes stated under oath that



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                                    Opinion of the Court



 “somebody” told him that if he cooperated with the State, his case would be dismissed,

 but he did not identify the person who purportedly told him that.

       The trial court stated that “frankly, the Court finds as a fact that the Court

 does not believe a single word this man says. Not one word. I think he is lying under

 oath.” The court consolidated all the charges into the robbery with a dangerous

 weapon charge and sentenced Sykes to 51-71 months imprisonment, a sentence at

 the bottom of the mitigating range. Sykes appealed.

                                        Analysis

I.     Appellate Jurisdiction

       After Sykes’s sentencing hearing, he went back into court and entered oral

 notice of appeal. However, there is no record of his notice of appeal in the transcript.

 Additionally, due to a clerical error, Sykes’s file was misplaced and appellate entries

 were not issued until 26 February 2014, outside the fourteen-day window to properly

 notice a criminal appeal. N.C. R. App. P. 4 (a)(2) (2013).

       Sykes admits these defects in perfecting his appeal and asks this Court to

 review the merits of his appeal by allowing his petition for a writ of certiorari.

 Because Sykes’s untimely appeal is due to circumstances beyond his control, we

 exercise our discretion to allow his petition for a writ of certiorari. See N.C. R. App.

 P. 21(a)(1); State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005)

 (“While this Court cannot hear defendant’s direct appeal [for failure to perfect his



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                                      Opinion of the Court



notice of appeal], it does have the discretion to consider the matter by granting a

petition for writ of certiorari.”).

II.    Denial of Motion to Withdraw Guilty Plea

       Sykes argues that the trial court erred by denying his motion to withdraw his

guilty plea because he established “fair and just reasons” for the motion. We disagree.

       “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. Villatoro,

193 N.C. App. 65, 67-68, 666 S.E.2d 838, 841 (2008). A court generally should allow

a presentence motion to withdraw a guilty plea if the defendant makes “a sufficient

showing of a fair and just reason.” State v. Handy, 326 N.C. 532, 542, 391 S.E.2d 159,

164-65 (1990). “The defendant has the burden of showing his motion to withdraw his

guilty plea is supported by some fair and just reason.” State v. Robinson, 177 N.C.

App. 225, 229, 628 S.E.2d 252, 254-55 (2006) (internal quotation marks omitted).

Once the defendant meets his burden of showing a fair a just reason to allow his

motion to withdraw his guilty plea, “the State may refute the movant’s showing by

evidence of concrete prejudice to its case by reason of the withdrawal of the plea.”

State v. Chery, 203 N.C. App. 310, 312, 691 S.E.2d 40, 43 (2010) (internal quotation

marks omitted).




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                                   Opinion of the Court



      Our Supreme Court has identified a list of factors courts should consider in

addressing a defendant’s motion to withdraw a plea:

             [1] whether the defendant has asserted legal innocence, [2]
             the strength of the State’s proffer of evidence, [3] the length
             of time between entry of the guilty plea and the desire to
             change it . . . [4] whether the accused has had competent
             counsel at all relevant times[,] [5] [m]isunderstanding of
             the consequences of a guilty plea, [6] hasty entry, [7]
             confusion, and [8] coercion.

Handy, 326 N.C. at 539, 391 S.E.2d at 163 (citation omitted). No one factor is

determinative. See id. However, “[t]his Court has placed heavy reliance on the length

of time between a defendant’s entry of the guilty plea and motion to withdraw the

plea.” Robinson, 177 N.C. App. at 229, 628 S.E.2d at 255. When the defendant waits

a significant amount of time before moving to withdraw his guilty plea, “the reasons

given to support withdrawal must have considerably more force.” Handy, 326 N.C.

at 539, 391 S.E.2d at 163 (internal quotation marks omitted).

      Here, Sykes waited six months after entering his guilty plea before making a

motion to withdraw his plea. Sykes argues that he made his motion to withdraw his

guilty plea at the start of the sentencing hearing, and although it was six months

after entry of his plea, “[t]here is no showing [Sykes] had any control in determining

when this case would be returned to court.” However, this Court previously has

upheld a trial court’s denial of a defendant’s motion to withdraw his guilty plea when

the defendant waited more than one month before moving to withdraw his plea. See



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State v. Graham, 122 N.C. App. 635, 637-38, 471 S.E.2d 100, 101-02 (1996); see also

State v. Marshburn, 109 N.C. App. 105, 108-09, 425 S.E.2d 715, 718 (1993). If Sykes

changed his mind about the plea, he could have contacted his attorney at any point

during this six-month period and filed a motion to withdraw the plea. He offers no

evidence to show why he did not do so and why he waited until the sentencing hearing

six months later.

      In light of the six months between the time Sykes entered his guilty plea and

when he first moved to withdraw his plea, Sykes’s reasons for seeking to withdraw

his guilty plea “must have considerably more force” than in an ordinary case. Handy,

326 N.C. at 539, 391 S.E.2d at 163 (internal quotation marks omitted).

      Sykes argues that he demonstrated fair and just reasons to allow his motion

to withdraw his guilty plea because he claimed he was innocent, did not have

competent counsel at all times, and was confused and coerced into accepting the plea.

We address and reject each of these arguments in turn.

   A. Assertion of Legal Innocence

      Sykes first contends the he should have been permitted to withdraw his plea

because he asserted his innocence.

      At the start of the hearing, Sykes told the court that he only pleaded guilty

because his attorney told him he would get fourteen years in prison if he did not. He

also stated that ”somebody” told him if he pleaded guilty and cooperated by providing



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                                   Opinion of the Court



the State with information on another crime then his case would be dismissed. Later

in the hearing, Sykes stated, “Your Honor, for one I didn’t commit no robbery.” This

was the first instance that Sykes claimed he was not guilty, and he did not provide

any explanation for why he was innocent despite the overwhelming evidence of guilt.

The trial court stated that it “[did] not believe a single word [Sykes] says.”

      At his plea hearing, Sykes admitted under oath that he was “in fact, guilty of

the charges.” He also did not object to the factual basis of his plea presented by the

State. The State showed that the victim identified Sykes as the person who robbed

him at gunpoint. Officers apprehended Sykes fleeing the scene in a vehicle and

recovered the victim’s wallet, which was thrown from the vehicle as it fled from police.

Sykes’s two co-defendants were willing to testify against Sykes regarding his

participation in the robbery.

      In light of this evidence, and after reviewing the entire record, Sykes failed to

show that this factor weighs in his favor.

   B. Lack of Competent Counsel

      Sykes next contends that he did not have competent counsel in the time leading

up to his guilty plea.

      At the plea hearing, Sykes stated, “I don’t have faith in this lawyer carrying

my case. I feel like my life is in jeopardy here and I don’t have the confidence to

proceed about this matter on behalf of her carrying this case out for me.” But there



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                                   Opinion of the Court



is no evidence in the record that the performance of Sykes’s counsel was in any way

deficient. Indeed, during the transcript of his plea agreement, Sykes testified that

his attorney explained the nature of the charges against him and the range of possible

punishments he may face by pleading guilty. He then stated that he was satisfied

with his legal counsel.

      Sykes argues that he only pleaded guilty “because his attorney told him he was

a level IV and could get fourteen years” and that he “had no other option” because

“it’s either take this plea or you will have that 14 years at the end of this week.” The

trial court questioned his attorney, who disputed Skyes’s statement and explained

that she “probably said he could get up to 14 years if he was found guilty of everything

and it was box carred [sic] which he could get more than that.” Sykes’s counsel also

obtained a favorable plea agreement for him where the court sentenced him at the

very bottom of the mitigating range.

      As the trial court observed, Sykes could have received a substantially harsher

punishment than the sentence he received, which was at the low-end of the mitigated

range after consolidation of the charges. Even if we were to accept Skyes’s self-

serving testimony as true—and we are not persuaded that it is—Sykes has not shown

that he lacked competent counsel during the proceedings below. Accordingly, this

factor does not favor Sykes.




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                                   Opinion of the Court



   C. Confusion and Coercion

      Finally, Sykes contends that he was confused and coerced into accepting the

guilty plea. Sykes argues that he was confused about his prior record level because

at the hearing on 17 July 2012, he was told he was a level IV, but at his sentencing

hearing he was a level III. Sykes further argues that “he could easily consider the

overstatement of his prior record level as a means to coerce him into taking a plea he

did not want to accept.”

      But importantly, Sykes only argues that he could have been coerced in this

way, not that he actually was. Additionally, at his plea hearing, Sykes stipulated to

his prior record level being a level IV, and there is no evidence in the record indicating

that this level was incorrect.

      Sykes also argues that he did not understand his possible punishments and

only pleaded guilty because he was told he would get fourteen years imprisonment.

But as explained above, his counsel testified that she did not tell Sykes that his

sentence would be fourteen years in prison, but that “he could get up to 14 years if he

was found guilty of everything.” The trial court found Sykes’s counsel to be credible,

and nothing in the record supports the opposite conclusion.

      Sykes further argues that he was confused when accepting his plea because he

believed the charges against him would later be dismissed if he cooperated with law

enforcement in a separate investigation. But during the plea colloquy, Sykes stated



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                                  Opinion of the Court



under oath that he understood that he did not have to plead guilty, that he understood

the terms of his plea agreement, and that no one “promised [him] anything or

threatened [him] in any way to cause [him] to enter the plea against [his] will.” The

court informed Sykes that his sentencing would be continued to give him the

opportunity to provide information to the State that may lead to a more favorable

sentence, but the record does not contain any indication that anyone promised Sykes

the charges would be dismissed if he cooperated. Thus, this factor also does not weigh

in Sykes’s favor.

      In sum, we hold that Sykes failed to satisfy the heightened burden for

withdrawal of his guilty plea in light of the six-month delay before seeking to

withdraw his plea. Accordingly, the trial court did not err in denying his motion.

                                    Conclusion

      Sykes failed to meet his burden to show a fair and just reason for withdrawal

of his guilty plea in light of the six-month delay between his guilty plea and his

request to withdraw it. Accordingly, we affirm the trial court’s judgment.

      AFFIRMED.

      Judges CALABRIA and McCULLOUGH concur.

      Report per Rule 30(e).




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