               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1249

                                Filed: 6 August 2019

Buncombe County, Nos. 17CRS81131-33

STATE OF NORTH CAROLINA

              v.

DMITRY KONAKH


        Appeal by Defendant from judgment entered 10 April 2018 by Judge J. Thomas

Davis in Buncombe County Superior Court. Heard in the Court of Appeals 10 April

2019.


        Attorney General Joshua H. Stein, by Assistant Attorney General Candace A.
        Hoffman, for the State.

        Office of the Appellate Defender, by Emily Holmes Davis, for Defendant-
        Appellant.


        COLLINS, Judge.


        Defendant appeals from an order denying his Motion to Withdraw Plea and

Motion for Appropriate Relief. Defendant argues that the trial court erred by denying

the motions because circumstances demonstrate that the withdrawal of Defendant’s

guilty plea would prevent manifest injustice. We affirm.

                   I. Factual Background and Procedural History

        On 10 April 2018, Defendant pled guilty to felony possession with intent to

manufacture, sell, or deliver marijuana; felony possession of marijuana; and felony
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                                   Opinion of the Court



maintaining a vehicle for controlled substance. During the plea hearing, Defendant

admitted to transporting and delivering approximately three pounds of marijuana to

Asheville; answered affirmatively when asked by the court if he understood the felony

charges to which he was pleading guilty; and answered affirmatively when asked by

the court if he was, in fact, guilty of all three felony charges. The court consolidated

Defendant’s three convictions for judgment, sentenced Defendant to a term of 6 to 17

months’ imprisonment, suspended the sentence, and placed Defendant on supervised

probation for 24 months. The court also assessed $972.50 in costs, ordered Defendant

to complete 72 hours of community service within the first 150 days, and required

Defendant to report for an initial substance abuse assessment.

         On 12 April 2018, Defendant filed a Motion to Withdraw Plea and Motion for

Appropriate Relief (“Motion”), alleging that he “felt dazed and confused at the time of

the plea due to lack of sleep and due to medications he was taking;” “did not

understand he was pleading guilty to three felonies and . . . did not understand what

three felonies being consolidated into one judgment meant;” “did not feel he had

appropriate time to consider the plea agreement and felt pressured to make a decision

regarding his plea;” and believed his decision to plead guilty would “have negative

employment ramifications . . . that he was not aware of at the time he entered his

plea.”




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      On 16 April 2018, the Motion was heard in superior court. At the hearing,

when the State asked Defendant if he had three pounds of marijuana in his car on

the date of the offense, Defendant replied, “Yea, I guess.” Defendant testified that

“nobody threatened or coerced” him into taking a plea, and that he was not promised

anything for taking the plea. When asked if he understood what crimes he was

charged with and whether he had discussed possible defenses with his attorney,

Defendant replied “yes” and “yes, sir.”      Moreover, when Defendant was asked

whether, at the time of the plea hearing, he understood that he was pleading guilty

to three felony charges, Defendant relied “yes.”         Despite these statements and

admissions, however, when asked by the State whether he was asserting his legal

innocence, Defendant replied, “I am now.”

      At the conclusion of the hearing, the court announced extensive findings of fact

in support of its conclusion that the Motion was without merit, and denied the Motion.

On 24 April 2018, the court entered a written order reflecting its ruling from the

bench. The court made the following written findings of fact:

             ....

             2. Based on the testimony of the Defendant, as well as the
             observations and understandings of the Court regarding
             his trial, the Defendant was not only aware of the factual
             circumstances against him, he was also aware of the pleas
             that he had been offered to him by the State and that the
             Defendant basically simply took a position of not doing
             anything until the trial date.



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3. On the morning of April 10, 2018, the Court heard the
Defendant’s Motion to Suppress. That Motion to Suppress
was denied prior to the Court’s lunch recess at 12:30 pm
and that the State was ready to proceed with the
Defendant’s trial. Following the denial of the Defendant’s
Motion to Suppress but prior to the lunch recess, the
Defendant was given an opportunity to consider whether
to accept a plea offer or go to trial. The Court recessed from
12:30 until 2:00 to give the Defendant an opportunity to
consider what was available to him and also to consider
whether he wanted to proceed at trial. Furthermore, the
Court paused for a period of time up to 15 to 30 minutes,
from 2:00 to 2:30, to allow the Defendant to further talk
with his attorney and consider whether or not he wanted
to plead in this matter.

4. On April 10, 2018 the Defendant appeared before the
Court and answered the questions as given to him both
orally and written and pursuant to the transcript of the
plea.

5. The Defendant at that time answered those questions
clearly, appropriately, and at that time did not exhibit any
indications that he was dizzy and he stood through the
whole transcript -- during the whole time that the plea was
offered to him.

6. The Court did not observe any condition of him that
would indicate that he was in any way dizzy, nauseous,
sick, or confused. The Defendant answered the Court’s
questions clearly and appropriately throughout the
transcript, even pausing at one time to talk to his attorney
about one of the questions.

7. Throughout the entire duration of the plea, the
Defendant did not indicate through counsel or directly with
the Court that he was dizzy in any respects. At the
conclusion of the plea the Defendant asked to speak
directly with the Court. During the time the Defendant
spoke on his behalf directly to the Court, the Defendant


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spoke both logically and clearly setting out positions that
he was taking in regard to the matter before the Court
including admitted responsibility for the charges that he
had plead guilty to.

8. The Defendant sought to withdraw his plea after this
Court had sentenced him.

9. The Court finds the contentions set forth in the
Defendant’s Motion for Appropriate Relief filed by the
Defendant on April 12, 2018 including that the Defendant
was dizzy, nauseous, sick, confused, and did not
understand the questions are not credible. It appears to
the Court that the Defendant is merely changing his mind
after entering into the plea freely and voluntarily and
understandingly.

10. The Court also finds that while the Defendant was on
cross-examination by the State regarding these matter[s],
he indicated that he did not remember various questions
asked of him by the Court during the plea. The Court finds
his testimony to be untrue and that the Defendant simply
does not want to remember those answers, not that he
doesn’t remember them.

11. The Court finds that the Defendant’s appearance,
behavior, and ability to communicate with the Court on
April 10, 2018, when the plea was entered, were identical
to that on April 16, 2018, when the Court heard the
Defendant’s Motion for Appropriate Relief.

12. The Court renews all the plea adjudication findings
that were previously discussed on April 10, 2018.

13. The Defendant entered into and accepted the plea
arrangement on April 10, 2018 freely, voluntarily, and
understandingly.




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      14. The Defendant’s plea was not entered into in haste,
      under coercion or at a time when the Defendant was
      confused.

      15. The Court further finds the following in regards to the
      factors set forth in State v. Meyer, 330 N.C. 738, 742-43,
      412 S.E.2d 339, 342 (1992); The Defendant did not assert
      his legal innocence on April 10, 2018 during the plea or in
      his filed Motion for Appropriate Relief; The State’s case
      and the evidence against the Defendant was
      insurmountable. At a previous hearing evidence was
      presented that State and law enforcement had placed a
      GPS tracker within the boxes where the marijuana was
      located, and they were tracking both the Defendant as well
      as the vehicle he was driving at the time. Law enforcement
      knew and had verified that marijuana was contained in the
      boxes before the Defendant took possession, and law
      enforcement conducted surveillance on the Defendant the
      entire time the marijuana was in his possession.
      Furthermore, the marijuana was found by the officer at the
      time that the Defendant was pulled over. In addition, the
      Defendant admitted to possessing and transporting
      marijuana to officers; throughout the entire time the
      Defendant’s charges have been pending, he has been
      represented by counsel.        The Defendant has been
      represented by his own Counsel which was retained in
      December and that counsel is certainly competent and has
      represented him as such throughout the entire process
      including filing and arguing various motions before the
      Court.

Upon its findings, the court concluded:

      ....

      2. Where a guilty plea is sought to be withdrawn by the
      defendant after sentencing, it should be granted only to
      avoid manifest injustice; State v. Handy, 326 N.C. 532, 391
      S.E.2d 159 (1990).



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             3. Based on the above Findings of Fact the Court finds as
             a matter of law that no manifest injustice exist[s].

             4. The Court concludes as a matter of law that the Motion
             is without merit and that it is not supported by any facts
             in any respects, thus there is no manifest injustice by
             denying the Defendant’s motion.

      Based upon the findings of fact and conclusions of law, the trial court denied

the Motion. From the trial court’s order denying the Motion, Defendant appeals.

                                   II. Discussion

      Defendant argues that the trial court erred by denying his Motion because the

circumstances demonstrate that withdrawal of his plea would prevent manifest

injustice. We disagree.

A. Standard of Review

      When a defendant seeks to withdraw a guilty plea, and the “defendant’s motion

to withdraw his plea was made post-sentence, it is properly treated as a motion for

appropriate relief.”   State v. Monroe, 822 S.E.2d 872, 875 (N.C. Ct. App. 2017)

(citation omitted).    When reviewing “a trial court’s findings on a motion for

appropriate relief . . ., [the] findings are binding if they are supported by competent

evidence and may be disturbed only upon a showing of manifest abuse of discretion.”

State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998) (citations

omitted). Unchallenged findings of fact are “presumed to be supported by competent

evidence and are binding on appeal.” State v. Evans, 251 N.C. App. 610, 613, 795

S.E.2d 444, 448 (2017) (brackets and citations omitted).          “[T]he trial court’s

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conclusions of law are fully reviewable on appeal.” State v. Johnson, 126 N.C. App.

271, 273, 485 S.E.2d 315, 316 (1997).

B. Analysis

      “When a defendant seeks to withdraw a guilty plea after sentencing, his motion

should be granted only where necessary to avoid manifest injustice.” State v. Suites,

109 N.C. App. 373, 375, 427 S.E.2d 318, 320 (1993) (citations omitted). “Some 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 the 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.” State v. Handy, 326 N.C. 532, 539,

391 S.E.2d 159, 163 (1990) (citations omitted).            “Misunderstanding of the

consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for

consideration.” Id. “A plea is voluntary and knowing if it is made by someone fully

aware of the direct consequences of the plea.” Wilkins, 131 N.C. App at 224, 506

S.E.2d at 277 (citations omitted). Moreover, “[i]n cases where there is evidence that

a defendant signs a plea transcript and the trial court makes a careful inquiry of the

defendant regarding the plea, this has been held to be sufficient to demonstrate that

the plea was entered into freely, understandingly, and voluntarily.” Id. (citations

omitted).




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                                   Opinion of the Court



      Defendant challenges just two of the trial court’s 15 findings of fact.

Specifically, Defendant challenges finding 13, that he “entered into . . . the plea . . .

freely, voluntarily, and understandingly,” and finding 14, that his “plea was not

entered into in haste, under coercion or at a time when the Defendant was confused.”

Defendant does not challenge the court’s remaining 13 findings, which are thus

binding on appeal. Evans, 251 N.C. App. at 613, 795 S.E.2d at 448.

      Defendant argues that his plea should be withdrawn because he (1) is innocent,

(2) pled guilty in haste, and (3) pled guilty in confusion and “based on the erroneous

belief that all three convictions would be consolidated into a single conviction.”

      Defendant’s claim of innocence is belied by the record, which indicates that

Defendant admitted at the hearing on his Motion that he possessed three pounds of

marijuana on the date of the offense. Moreover, the trial court found that Defendant

did not assert his legal innocence at the plea hearing or in his filed Motion for

Appropriate Relief, and Defendant did not challenge this finding, which is thus

binding on appeal. Id. Accordingly, Defendant’s claim that his innocence requires

the withdrawal of his plea is meritless.

      Defendant next claims that he pled guilty in haste, and that he had “less than

10 minutes” to think about the plea. However, the court found that Defendant had

approximately two hours to consider his options. Defendant did not challenge this




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finding, which is therefore binding on appeal, id., rendering Defendant’s claim that

he pled guilty in haste also unavailing.

      Lastly, Defendant claims that he pled guilty in confusion and based on a

misunderstanding of the law, specifically claiming that he erroneously believed “that

all three convictions would be consolidated into one conviction.”           However, the

transcript from the plea hearing reveals that the trial court made a careful inquiry of

Defendant regarding his decision to plead, the accuracy of which Defendant

confirmed by executing a Transcript of Plea form. These two things demonstrate that

the plea was entered into knowingly, voluntarily, and with an understanding of the

direct consequences of the plea. State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d

245, 248 (2002); Wilkins, 131 N.C. App at 224, 506 S.E.2d at 277. Moreover, the trial

court found Defendant’s contentions that he was “confused and did not understand

the questions” during the plea hearing “not credible[,]” and Defendant did not

challenge this finding, which is thus binding on appeal. Evans, 251 N.C. App. at 613,

795 S.E.2d at 448. Defendant’s claim that he pled guilty in confusion and based on a

misunderstanding of the law is therefore also meritless.

                                    III. Conclusion

      Since Defendant was represented by competent counsel, had ample time to

consider and discuss the plea with his attorney, and was thoroughly questioned by

the trial court about his decision to plead and the effects of his decision to plead guilty



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                                 Opinion of the Court



to three criminal charges, we conclude that Defendant is unable to establish manifest

injustice and unable to show that the trial court erred by denying his Motion. As

Defendant entered into the plea knowingly, voluntarily, and with an understanding

of the direct consequences, Wilkins, 131 N.C. App at 224, 506 S.E.2d at 277, we

determine that the trial court properly denied Defendant’s Motion.

      AFFIRMED.

      Judges BRYANT and STROUD CONCUR.




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