              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-854

                                 Filed: 2 July 2019

Wilkes County, No. 17 CRS 050494-95, 17 CRS 000434

STATE OF NORTH CAROLINA

             v.

BENJAMIN CURTIS LANKFORD, Defendant.


      Appeal by Defendant from judgment entered 13 February 2018 by Judge

Michael D. Duncan in Wilkes County Superior Court. Heard in the Court of Appeals

12 February 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Rory Agan,
      for the State.

      Meghan Adelle Jones for defendant-appellant.


      MURPHY, Judge.


      Where a defendant moves to withdraw his plea of guilty or no contest before

sentencing but after he has been informed of his sentence by the presiding judge, such

motion need only be granted where a trial court’s denial would result in a manifest

injustice. Here, Defendant, Benjamin Curtis Lankford, moved to withdraw his plea

of no contest more than two months after he was told his sentence by the trial court.

The trial court’s denial of Defendant’s motion did not result in a manifest injustice,

and is affirmed.

                                  BACKGROUND
                                 STATE V. LANKFORD

                                   Opinion of the Court



      Defendant was indicted for fleeing to elude arrest, speeding, driving left of

center, driving while license revoked, and attaining the status of habitual felon. On

3 February 2018, Defendant entered a plea of no contest to the charges of fleeing to

elude arrest, driving while license revoked, and attaining habitual felon status. Nine

other charges were dismissed in exchange for his plea. At this hearing, Defendant

was advised that he would “be sentenced as a habitual felon at a Class D, prior record

level VI, at the lowest end of the mitigated range not less than 77 months nor more

than 105 months in the North Carolina Department of Adult Corrections.” Defendant

was granted pretrial release, and the matter was continued until 2 April 2018, when

judgment was to be entered. Defendant failed to appear for his scheduled sentencing

hearing, and an order for his arrest was issued on 9 April 2018.

      On 8 May 2018, Defendant appeared before the Superior Court on a motion to

withdraw his no contest plea.       Defendant explained that he believed his plea

agreement included a provision that allowed him to amend his plea “if there was any

evidence that was brought forth of this case[,]” and that he wished to withdraw his

plea. Defendant also told the trial court, “I’m not guilty of these charges that they’ve

charged me with[.]” Defendant’s counsel asked to respond to his client’s statements

and argued “the State could prove absolutely and without a doubt in [trial counsel’s]

opinion” that Defendant was guilty as charged. Defendant’s counsel explained that

Defendant was not claiming innocence regarding the charges he had pled to, but was



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                                   Opinion of the Court



“talking about the possession of a firearm by a felon [charge], one of the cases that

would be dismissed [under his plea agreement].” Counsel further expressed that he

had advised Defendant against filing a motion to withdraw his plea, and that, if the

trial court granted the motion, counsel would need to withdraw his representation

because there would be “a conflict that couldn’t never [sic] be solved.”

      The trial court found that Defendant had received competent legal

representation and had not been coerced into entering his original plea of no contest.

Subsequently, the trial court concluded there was no fair and just reason that

Defendant should be permitted to withdraw his plea and denied Defendant’s motion

to do so. The trial court entered judgment upon the plea of no contest and sentenced

Defendant, as previously announced, to an active term of 77 to 105 months.

                                     ANALYSIS

      In his only argument on appeal, Defendant argues the trial court erred in

denying his motion to withdraw his plea of no contest. Defendant contends the trial

court was required to grant his motion because he presented a fair and just reason

for withdrawal and the State did not allege or show any substantial prejudice which

would have been caused by the withdrawal.

      “While there is no absolute right to withdrawal of a guilty plea, withdrawal

motions made prior to sentencing, and especially at a very early stage of the




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                                 STATE V. LANKFORD

                                  Opinion of the Court



proceedings, should be granted with liberality[.]” State v. Handy, 326 N.C. 532, 537,

391 S.E.2d 159, 161-62 (1990) (internal citations omitted).

             In a case where the defendant seeks to withdraw his guilty
             plea before sentence, he is generally accorded that right if
             he can show any fair and just reason. On the other hand,
             where the guilty plea is sought to be withdrawn by the
             defendant after sentence, it should be granted only to avoid
             manifest injustice.

Id. at 536, 391 S.E.2d at 161 (quoting State v. Olish, 164 W.Va. 712, 715, 266 S.E.2d

134, 136 (1980)). Here, Defendant had not yet been sentenced, but had known his

sentence for nearly three months before he moved to withdraw his plea of no contest.

      During his February hearing, Defendant was advised by the trial court that he

would “be sentenced as a habitual felon at a Class D, prior record level VI, at the

lowest end of the mitigated range not less than 77 months nor more than 105 months

in the North Carolina Department of Adult Corrections.” We find this situation

different from that in Handy, where the defendant attempted to withdraw his guilty

plea before he became aware of his sentence. Indeed, in every case the parties cite in

their briefs, and all of the cases found in our independent analysis of this issue, the

defendant moved to withdraw his plea before he knew his sentence. See, e.g., Handy,

326 N.C. at 534-35, 391 S.E.2d at 160; State v. Meyer, 330 N.C. 738, 740, 412 S.E.2d

339, 340 (1992); State v. Deal, 99 N.C. App. 456, 457, 393 S.E.2d 317, 317 (1990).

Whether to grant the level of deference from Handy in a case where the defendant




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                                     STATE V. LANKFORD

                                      Opinion of the Court



moves to withdraw his plea prior to sentencing but after learning his sentence is a

matter of first impression.

       In Handy, the North Carolina Supreme Court reasoned: “A fundamental

distinction exists between situations in which a defendant pleads guilty but changes

his mind and seeks to withdraw the plea before sentencing and in which a defendant

only attempts to withdraw the guilty plea after he hears and is dissatisfied with the

sentence.” Handy, 326 N.C. at 536, 391 S.E.2d at 161. In so reasoning, our Supreme

Court recognized some key differences between these two situations:

              First, once sentence is imposed, the defendant is more
              likely to view the plea bargain as a tactical mistake and
              therefore wish to have it set aside. Second, at the time the
              sentence is imposed, other portions of the plea bargain
              agreement will often be performed by the prosecutor, such
              as the dismissal of additional charges or the return or
              destruction of physical evidence, all of which may be
              difficult to undo if the defendant later attacks his guilty
              plea. Finally, a higher post-sentence standard for
              withdrawal is required by the settled policy of giving
              finality to criminal sentences which result from a voluntary
              and properly counseled guilty plea.

              These considerations are not present where the defendant
              seeks to withdraw the guilty plea prior to sentencing.

Id. at 537, 391 S.E.2d at 161 (citing Olish, 164 W.Va. at 716, 266 S.E.2d at 136

(citation omitted)).1 All three considerations are present here, where Defendant


       1  We recognize that the Olish case, which underlies Handy, relies upon a since-supplanted
federal standard in which “[A] motion to withdraw a plea of guilty or nolo contendere may be made
only before sentence is imposed or imposition of sentence is suspended; but to correct manifest



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                                       STATE V. LANKFORD

                                         Opinion of the Court



already knew his sentence but was granted a continuance and presentence release.

We hold that in such cases it is appropriate to review the trial court’s denial of

Defendant’s motion only to determine whether it amounted to a manifest injustice,

and not according to the “any fair and just reason” standard.

       Inevitably, we look to similar factors to those described in our existing caselaw

to determine whether a denial would amount to a manifest injustice. As is discussed

in greater detail below, Defendant had already received part of the benefit of his plea

agreement by the time he moved to withdraw it, did not protest his innocence of the

charges to which he had already pled guilty, and failed to provide the trial court any

other reason why his withdrawal was imperative.                     The trial court’s denial of

Defendant’s motion does not amount to a manifest injustice.

       Even assuming arguendo the fair and just standard does apply, Defendant’s

argument on appeal fails. We “must look to the facts of each case to determine

whether a defendant has come forward with a fair and just reason to allow

withdrawal of his guilty pleas.” Meyer, 330 N.C. at 743-44, 412 S.E.2d at 343. Some



injustice the Court after sentence may set aside the judgment of conviction and permit the defendant
to withdraw his plea.” See Fed. R. Crim. P. 32 advisory committee’s notes (1983) (emphasis added).
Since Olish was decided, the “manifest injustice” language has been removed, and a defendant may
withdraw a guilty or nolo contendere plea “after the court accepts the plea, but before it imposes
sentence if . . . the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2) (2019). In amending the rule, the Advisory Committee hoped to “avoid[] language
[regarding manifest injustice] which has been a cause of unnecessary confusion.” Fed. R. Crim. P. 32
advisory committee’s notes (1983). However, Handy has not been overruled or distinguished by our
Supreme Court, or the Supreme Court of the United States, since it was published, and we remain
bound by its holding. See, e.g., Mahoney v. Ronnie’s Road Serv., 122 N.C. App. 150, 153, 468 S.E.2d
279, 281 (1996), aff’d per curiam, 345 N.C. 631, 481 S.E.2d 85 (1997).

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                                  STATE V. LANKFORD

                                   Opinion of the Court



factors we have considered are “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.” Handy, 326 N.C. at 539, 391 S.E.2d at 163. Here, after

a careful review of the record before us, we cannot conclude Defendant offered a fair

and just reason for withdrawing his plea, let alone that the trial court’s denial of

Defendant’s motion resulted in a manifest injustice.

      Regarding a protestation of innocence, Defendant told the trial court, “I’m not

guilty of these charges that they’ve charged me with[.]” Although at first glance this

appears to be a protestation of innocence, upon reading the entire record we cannot

determine with clarity whether Defendant was claiming actual innocence of the

charges to which he had pled no contest. After Defendant claimed he was not guilty

of the charges, his counsel explained to the trial court, “he’s talking about the

possession of a firearm by a felon [charge], one of the cases that would be dismissed

[under his plea agreement].” The closest Defendant comes to protesting his innocence

of the charges to which he initially pled was explaining, “I just feel like if everything

is brought out in every case that every officer has charged me with, I know what I’m

guilty of and I know what I’m not guilty of. I’m not guilty of all these charges.”

Reviewing the entire record, we are not convinced Defendant protested his innocence

of the relevant charges in his motion to withdraw his plea.



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                                STATE V. LANKFORD

                                 Opinion of the Court



      As for the temporal factor, Defendant moved to withdraw his plea

approximately ten weeks after he initially entered it. The timing of a motion for

withdrawal in relation to the initial plea has received considerable attention by our

appellate courts.   For example, the defendant in Handy—who was allowed to

withdraw his plea—moved to withdraw his plea less than 24 hours after he initially

entered it. Handy, 326 N.C. at 534-35, 391 S.E.2d at 160. In Meyer, on the other

hand, the defendant’s motion to withdraw was denied in part because it was made

almost four months after the defendant initially entered his plea. Meyer, 330 N.C. at

744, 412 S.E.2d at 343. However, in our Court’s first case applying Handy, we

reasoned “[a]lthough [the defendant] did not attempt to revoke his plea for over four

months, this appears to have resulted from his erroneous expectations and lack of

communication with his attorney.” Deal, 99 N.C. App. at 464, 393 S.E.2d at 321

(reversing the trial court’s denial of the defendant’s motion to withdraw his plea).

Even in applying the “fair and just reason” analysis arguendo, we would consider the

unique fact that Defendant knew what his sentence would be when he moved to

withdraw his plea, which demonstrates that his motion did not come “at a very early

stage of the proceedings,” as was the case in Handy, 326 N.C. at 537, 391 S.E.2d at

161-62. The timing of Defendant’s motion to withdraw neither bolsters nor subverts

his argument that he presented a fair and just reason.




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                                STATE V. LANKFORD

                                 Opinion of the Court



        Finally, Defendant argues his counsel was incompetent in representing him

during the hearing regarding his motion to withdraw. We are admittedly concerned

with defense counsel’s balancing of his duty of candor to the tribunal with that of

zealous representation during the withdrawal hearing, where he interrupted

Defendant on multiple occasions and described to the trial court why he had advised

Defendant against attempting to withdraw his plea. However, the record does not

indicate Defendant’s counsel provided incompetent representation throughout the

process.    Counsel filed Defendant’s motion to withdraw his plea—despite the

counselor’s personal belief that the motion was meritless—and timely notice of

appeal.    Defendant was represented by competent counsel at all relevant times

throughout this process.

        In sum, Defendant did not suffer a manifest injustice when the trial court

denied his motion to withdraw his no contest plea. Even applying the less deferential

standard described by our Supreme Court in Handy, we would not hold Defendant

met his burden of showing that his motion to withdraw was made for a “fair and just

reason.” We affirm the trial court’s denial of Defendant’s motion to withdraw his

plea.

                                  CONCLUSION




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                                 STATE V. LANKFORD

                                  Opinion of the Court



      The trial court’s denial of Defendant’s motion to withdraw his plea of no contest

did not cause Defendant to suffer a manifest injustice. Furthermore, Defendant did

not present the trial court with a fair and just reason to grant his motion.

      AFFIRMED.

      Judges BRYANT and DIETZ concur.




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