State v. Saldana

896 S.E.2d 193

STATE of North Carolina

v.Luis Fernando SALDANA.

No. COA23-51

Court of Appeals of North Carolina.

Filed December 19, 2023

Appeal by Defendant from an order entered 10 May 2022 by Judge William W. Bland in Wayne County Superior Court-Heard in the Court of Appeals 6 September 2023. Wayne County, No. 03 CRS 60546

Attorney General Joshua H. Stein, by Assistant Attorney General Caden W. Hayes, for the State.

Appellant Defender Glenn Gerding, by Assistant Appellate Defender Heidi Reiner, for the Defendant.

North Carolina Advocates for Justice, by Christopher J. Heaney and North Carolina Justice Center, by Daniel Melo, Amici Curiea.

WOOD, Judge.

Luis Fernando Saldana ("Defendant") appeals from the trial court’s order denying his motion to withdraw his guilty plea entered 8 February 2005. After careful consideration of the record and applicable law, we affirm the trial court’s order.

I. Factual and Procedural Background

On 3 January 2005, Defendant was indicted by a grand jury for felony possession of cocaine, misdemeanor possession of a controlled substance, and misdemeanor possession of drug paraphernalia. On 8 February 2005, Defendant, through counsel, entered a plea of guilty to felony possession of cocaine in order to receive a conditional discharge pursuant to N.C. Gen. Stat. § 90-96. As a part of the plea transcript, Defendant affirmed, under oath, that he was satisfied "with [his] lawyer’s legal services"; that he understood "the nature of the charges" and discussed "possible defenses" with his lawyer; that he had "the right to plead not guilty and be tried by a jury"; and that "if [he] was not a citizen of the United States of America, [his] plea[ ] of guilty … may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." The State, as part of the agreement, agreed to dismiss the pending misdemeanor charges.

The trial court accepted Defendant’s plea on 8 February 2005 and, pursuant to the provisions of § 90-96, "defer[red] further proceedings" pending successful completion of various conditions, including payment of all fees, completion of a drug education program, and supervised probation. On 7 February 2006, the trial court, satisfied Defendant had complied with the previously imposed conditions for a conditional discharge, dismissed the charges against Defendant pursuant to the provisions of § 90-96.

At the time of these proceedings, Defendant, an undocumented immigrant, resided in North Carolina, had been married since 2004 to an American citizen, and was the father to a child born of the marriage. After the charges were dismissed against Defendant, he continued to reside in the United States and raise his three children with his wife. In 2021, Defendant was detained by immigration officials and sent to Stewart Detention Center in Lumpkin, Georgia as a consequence of the 2005 guilty plea entered pursuant to § 90-96. Because of his undocumented status and guilty plea to a felony, Defendant was subject to mandatory detention without bond.

On 19 January 2022, Defendant, through new counsel, filed a motion to withdraw his § 90-96 guilty plea. Defendant asserted that he had a "fair and just" reason to withdraw his guilty plea, because he was "confused" and did not know "that the conditional discharge would not result in the withdrawal of his guilty plea and that the guilty plea would still continue to constitute a conviction for [federal law] immigration purposes." Specifically, Defendant alleged he did not "understand that the guilty plea would not be fully withdrawn upon his discharge from the post-plea diversion program." Defendant further alleged his guilty plea "is unfairly preventing Defendant from applying [for] cancellation of removal for non-lawful permanent residents or consular processing with a 1-601A waiver" in order for Defendant to remain in the United States. Defendant’s motion also specifically stated he was not contending his original trial attorney rendered ineffective assistance of counsel.

On 6 May 2022, the trial court heard Defendant’s motion. At the hearing, Defendant’s counsel argued Defendant "was confused, he was misled by the circumstances" when he entered the § 90-96 guilty plea and based on communications with "officers of the court, … he believed that he would be left with, quote, a clean slate." During the hearing, Defendant’s wife testified that shortly after Defendant’s guilty plea was dismissed, the couple met with an immigration attorney "about what process we would need to go through to get him legal status." According to Defendant’s wife, the immigration attorney told them there were "some laws or something hindering at the time, but they didn’t tell him specifically what it was, that it would be better if we waited and came back because there was going to be an election at the time, and they didn’t know if that would affect things."

Following Defendant’s wife’s testimony and arguments from the parties, the trial court denied Defendant’s motion. On 10 May 2022, the trial court entered a written order, formally denying Defendant’s motion. In its written order, the trial court treated Defendant’s motion as a motion for appropriate relief ("MAR") but noted that under either the "fair and just" standard or the "manifest injustice" standard, Defendant had not shown entitlement to relief. The "fair and just" standard applies to motions to withdraw a plea, and the "manifest injustice" standard applies to MARs. The trial court found "[D]efendant was represented by competent counsel … well-known to the court as a skilled attorney with years of experience." Additionally, the trial court noted that in the plea transcript Defendant marked the box acknowledging that he understood the plea could have immigration consequences and "nothing was presented or shown to support any assertion that [D]efendant was ‘misled’ by the court or by his trial counsel." Accordingly, the court found "[t]he plea was not the result of misunderstanding, haste, coercion, or confusion, but was entered knowingly and voluntarily." The trial court further found that while "[t]he contention that sentencing was never entered is probably correct," this is "not a dispositive issue" because the case "was fully dismissed by the court in a fair and just manner." On 11 May 2022, Defendant filed written notice of appeal.

II. Analysis

A. Appellate Jurisdiction

Defendant alleges the trial court addressed his claim as a motion to withdraw a plea and as a MAR. Defendant contends his pleading should have been treated by the trial court solely as a pre-sentence motion to withdraw his plea allowing him a right of direct appeal, but he has also filed a petition for writ of certiorari with this Court requesting appellate review of the merits of his appeal if his motion is treated as a MAR. According to Defendant, in consideration of the "seriousness of the consequences of allowing this plea to remain, the questionable constitutional validity of the plea itself, and the unusual procedural posture of his case," this Court should grant his writ of certiorari to "address the meritorious claim raised in [his] brief." In response, the State has filed a motion to dismiss Defendant’s appeal.

[1] Because Defendant filed the MAR "long after the time for taking appeal had expired, he can obtain appellate review of the court’s ruling only by a petition for a writ of certiorari." State v. Isom, 119 N.C. App. 225, 227, 458 S.E.2d 420, 421 (1995) (emphasis added); N.C. Gen. Stat. § 15A-1422(c)(3) (2023). In our discretion, we grant Defendant’s petition for writ of certiorari to consider the merits of Defendant’s appeal and deny the State’s motion to dismiss Defendant’s appeal.

B. Standard of Review

Defendant argues the trial court "erred by denying [his] motion to withdraw his [§ 90-96] guilty plea because [he] gave fair and just reasons for doing so." The basis of Defendant’s argument rests on the misapprehension that his motion to withdraw was asserted before sentencing on his plea and thus can be withdrawn if he can show a fair and just reason to do so. In refuting Defendant’s characterization of the motion to withdraw, the State argues the trial court appropriately categorized Defendant’s motion as a MAR which requires Defendant to prove his guilty plea amounts to "manifest injustice" and that Defendant is unable to do so. [2, 3] Whether a defendant should be allowed to withdraw a guilty plea is a question of law, which is reviewed de novo. State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 163 (1990). Under the de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for the lower court’s judgment. Sutton v. N.C. Dep’t of Lab., 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999) (citation omitted).

[4, 5] When considering rulings on MARs, we review the trial court’s order to determine "whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court." State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (citation omitted). When a trial court’s findings on a MAR are reviewed, "these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. However, the trial court’s conclusions are fully reviewable on appeal." State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation omitted). Because the facts underlying this case as described in the trial court’s findings of fact are undisputed, we only consider whether the trial court correctly concluded that Defendant was not entitled to relief.

C. N.C. Gen. Stat. § 90-96 Conditional Discharge Guilty Plea

Under § 90-96, in certain circumstances, when an individual who has not previously been convicted of "(i) any felony offense under...