13 N.C. App. 34 | N.C. Ct. App. | 1971
Concurrence Opinion
concurring in result.
The record contains no exceptions or assignments of error. Defendant does not attack his plea of nolo contendere, nor does he contend that the record fails to adequately show that the plea was voluntarily and understandingly made. Therefore, I do not think we are required, on our own motion, to inquire into the question of whether the plea was in fact voluntarily and understandingly made, or whether the record sufficiently shows that it was.
Where an appeal contains no assignment of error, the judgment will be sustained unless error appears on the face of the record proper. State v. Smith, 279 N.C. 505, 183 S.E. 2d 649.
In Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S.Ct. 1709, the Supreme Court of the United States reversed three capital convictions on the ground the record failed to affirmatively disclose that defendant voluntarily and understanding^ entered his pleas of guilty. There, as here, defendant did not raise this question in his brief. (Apparently the question was argued on oral argument.) The Supreme Court nevertheless concluded that the matter was properly before it because of an Alabama statute requiring the reviewing court to comb the entire record in capital cases for “ ‘any error prejudicial to the appellant, even though not called to our attention in brief of counsel.’ ” The instant case is not a capital case and therefore is distinguishable from Boykin.
Since Boykin, we have held that the failure of the record to affirmatively show that a plea of guilty was voluntarily and understandingly entered entitles1 a defendant to replead. State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29. However, I do not interpret Boykin, or Harris, to mean that in a non-capital case, an appellate court must search the record to determine if it sufficiently shows that a plea was voluntarily and understandingly made where the defendant has raised absolutely no question with respect thereto.
In my opinion no error appears on the face of the record proper. I therefore vote to find no error without further inquiry.
Dissenting Opinion
dissenting.
Counsel for the defendant in this appeal has brought forward no assignments of error but says in his brief that the following question is raised: “Were any of defendant’s constitutional or other legal rights abridged by the trial court?” The Attorney General asserts that he has searched the record and can find no error. The indictment properly charged the crime of felonious escape, and the two-year sentence was within the statutory limits. G.S. 148-45. Nevertheless, the defendant’s ap
“ * * * Ordinarily, in criminal cases the record proper consists of (1) the organization of the court, (2) the charge (information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment.” (Emphasis added.)
See also State v. Roberts, supra. That which occurs during the arraignment and entry of the plea is a part of the record proper. In my opinion, error does appear on the face of this record proper. At the time of the arraignment and entry of the plea of nolo contendere, as shown by this record, neither the trial judge nor anyone else actually informed the defendant of the nature of such plea or of the possible consequences. The trial judge did not make an adjudication that the plea was freely, understandingly and voluntarily made, and in my opinion, sufficient facts (as distinguished from conclusions) do not appear of record upon which such an adjudication could properly be made. See State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971). Therefore, I dissent from the majority opinion.
Furthermore, I do not think that the fact that the record shows that the defendant’s lawyer stated to the judge that he had explained to the defendant the effect of a plea of nolo con-tendere is a sufficient showing on the record that the legal effect of the plea was explained to the defendant in such a manner that he understood the nature of the plea and the possible consequences thereof. It is my opinion that pursuant to the mandate of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S.Ct. 1709 (1969), when a defendant enters a plea of nolo contendere, the record must show that the trial judge, or someone under his direction, informed the defendant of the effect of the plea and the possible consequences thereof. In Boykin it is stated:
“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. * * * ” (Emphasis added.)
For the foregoing reasons, I would strike the plea of nolo contendere and remand the case and permit the defendant to replead.
Lead Opinion
The record contains no exceptions or assignments of error. It affirmatively appears from the record that the defendant, represented by counsel, freely, understandingly and voluntarily entered a plea of nolo contendere to a valid bill of indictment, and the prison sentence imposed by the judgment is within the limits prescribed for a violation of the statute.
In the defendant’s trial in the superior court, we find no error.
No error.
