STATE OF NORTH CAROLINA v. EMILY W. FOSTER
18 November 2008
Criminal Law–consequences of plea rejection–defendant’s knowledge–plain error
review not applicable–defense counsel’s responsibility
Plain error review was not applicable in a prosecution for narcotics offenses where the
trial court did not intervene ex mero motu to advise defendant of the potential maximum
sentence she could face if she rejected the State’s plea offer and was convicted as charged. Plain
error review applies only to jury instructions and evidentiary matters; moreover, the duty to
inform a defendant of the consequences of rejecting a plea bargain offer rests with defense
counsel, not the trial judge.
Constitutional Law–ineffective assistance of counsel–record not sufficient–dismissed
The record was not sufficient for appellate consideration of a claim of ineffective
assistance of counsel arising from defense counsel’s alleged failure to properly advise defendant
of the correct potential sentence if she rejected a plea bargain. The assignment of error was
dismissed without prejudice to defendant’s right to file a motion for appropriate relief and
request a hearing on the issue.
Appeal by defendant from judgments entered on or after 6
December 2007 by Judge Alma L. Hinton in Beaufort County Superior
Heard in the Court of Appeals 31 October 2008.
Attorney General Roy Cooper, by Special
General Mabel Y. Bullock, for the State.
Larry C. Economos, for defendant-appellant.
Emily W. Foster (“defendant”) appeals from judgments entered
after a jury found her to be guilty of two counts of trafficking in
opium or heroin by sale and possession pursuant to N.C. Gen. Stat.
We find no error in part and dismiss without
prejudice in part.
-2On 17 September 2007, defendant was indicted on charges of
trafficking in opium by possession and trafficking in Lortab, a
derivative of opium, by sale.
Both offenses arose out of a single
sale of ten Lortab tablets to a confidential informant.
Prior to trial, defendant’s attorney informed the trial court
that defendant had rejected the State’s plea offer, which would
have allowed defendant to plead guilty to the lesser offense of
sale of opium.
Defendant’s counsel noted on the record that if
defendant had accepted the plea offer, defendant would be “looking
at the presumptive range of — sentenced to six to eight months” and
could possibly be placed on probation. Instead, counsel noted that
“trafficking in . . . [o]pium requires a minimum sentence of 70
months, which is five years and ten months, plus it has a large
fine, but definitely a mandatory sentence basically of six years.
. . .”
Defendant confirmed to the trial court that she had
rejected the plea offer and wished to proceed to trial on the
sentencing, the State sought the maximum sentence the court could
The trial court initially noted that “the statute calls
for consecutive sentences.”
The following colloquy ensued:
[Defense counsel]: I’m not aware of that -The Court: I could be wrong, but I -- it’s
consecutive to any other sentence that she
would be -- that she would have been serving.
[The State]: Right. I believe that if the two
sentences are at the same time that you do
have the authority to run them consecutive or
The Court: I agree with that.
[Defense counsel]: Your Honor, obviously,
[defendant] has – the only other criminal
matter she’s ever had was a worthless check,
no prior drug charges of any kind, and, Your
Honor, we would ask that, while we understand
that there is a required sentence that would
have a minimum of 70, the maximum, I believe - I believe it was 85 months, with a large
fine -The Court: Say that again now?
[Defense counsel]: I believe the sentence -- I
believe the sentence requires 70 months,
[The State]: Seventy is the minimum -[Defense counsel]: A minimum of 70 -[The State]: And it’s a Class F. A Class F,
Your Honor, which is -- it’s a minimum of 70
and a maximum of 84 months for each count.
[Defense counsel]: But it’s considered -opium is considered much – for sentencing,
much worse than cocaine though it’s a much
Your Honor, we would ask that you take
into consideration the fact that she’s had no
felonies, no drugs, and is married and has
four children, that you would enter just one
sentence in the matter and not do consecutive
Defendant was sentenced to two consecutive terms of a minimum of
seventy to a maximum of eighty-four months imprisonment. Defendant
(1) the trial court committed plain error
by failing to intervene ex mero motu to correct her counsel’s
-4misstatements of law concerning her minimum sentence and (2) she
received ineffective assistance of counsel.
Ex Mero Motu Failure to Inform
 Defendant argues the trial court committed plain error when
it failed, ex mero motu, to correct her counsel’s misstatement of
law regarding the minimum mandatory consecutive terms she could be
sentenced if she were found guilty of two counts of trafficking in
Plain error review applies only to jury instructions and
State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d
22, 39–40 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795
challenge to jury instructions nor an evidentiary matter.
error review is inapplicable to this assignment of error.
Moreover, our review has not discovered any North Carolina or
Federal case or statute that imposes a duty on the trial court to
ex mero motu intervene and inform a represented defendant of the
maximum consequences of rejecting a State offered plea bargain and
proceeding to trial.
Such comments could be viewed as encouraging
a defendant to plead guilty, which might raise challenges to the
voluntariness of a guilty plea.
See State v. Pait, 81 N.C. App.
286, 289, 343 S.E.2d 573, 576 (1986) (“The right to plead not guilty
is absolute and neither the court nor the State should interfere
with the free, unfettered exercise of that right; its surrender by
a plea of guilty must be voluntary and with full knowledge and
understanding of the consequences.” (Citing Brady v. U.S., 397 U.S.
-5742, 25 L. Ed. 2d 747 (1970); State v. Ford, 281 N.C. 62, 187 S.E.2d
741 (1972)); see also N.C. Gen. Stat. § 15A-1021(b) (2007) (“No
person representing the State or any of its political subdivisions
may bring improper pressure upon a defendant to induce a plea of
guilty or no contest.”).
The duty to inform a defendant of the
consequences of rejecting a State offered plea bargain rests upon
defendant’s counsel, not the trial judge.
This assignment of error
Ineffective Assistance of Counsel
 Defendant argues that she received ineffective assistance
of counsel (“IAC”) based upon her attorney’s failure to properly
advise her of the correct potential sentence she could serve if
convicted prior to her rejection of the plea agreement.
argues counsel should have advised her that pursuant to N.C. Gen.
Stat. § 90-95(h)(6), if convicted of two counts of trafficking, her
two sentences could be imposed consecutively and she could face a
minimum term of 140 months imprisonment.
Our Supreme Court has stated that to successfully establish an
ineffective assistance of counsel claim, defendant must satisfy a
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that
the deficient performance prejudiced the
defense. This requires showing that counsel’s
errors were so serious as to deprive the
defendant of a fair trial, a trial whose result
-6State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693 (1984)).
N.C. Gen. Stat. § 90-95(h)(6) (2007) provides that “sentences
imposed pursuant to this subsection shall run consecutively with and
shall commence at the expiration of any sentence being served by the
person sentenced hereunder.”
In State v.
Bozeman, this Court held that N.C. Gen. Stat. § 90-95(h)(6) mandated
“only a single minimum sentence” and did not require consecutive
sentences for three trafficking offenses “disposed of in the same
proceeding.” 115 N.C. App. 658, 662–63, 446 S.E.2d 140, 143 (1994).
Based on this Court’s precedent in Bozeman, defendant’s sentences
statutorily required to run consecutively.
However, this Court must determine whether defense counsel
advised defendant of the possible sentence she could have been
trafficking and the sentences were imposed consecutively. Defendant
asserts that because of the erroneous advice she received from
counsel and the trial court’s failure to ensure she was made aware
of the correct potential minimum sentence, she was deprived of the
opportunity to make an intelligent and voluntary decision whether
to accept the State’s plea offer.
Prior to trial, a colloquy
transpired as follows:
[Defense Counsel]: The State had offered a plea
of the sale of the drug which is a Schedule III
which would be a Class H felony, and she would
be a Level I and looking at the presumptive
-7range of – sentenced to six to eight months,
and she’s rejected the plea offer, and we
wanted to get that on the record. And, Your
Honor, I have informed her that the Trafficking
in Cocaine – I mean in Opium requires a minimum
sentence of 70 months, which is five years and
ten months, plus it has a large fine, but
definitely a mandatory sentence basically of
six years versus the Class H where Your Honor
would have a wide range of options, including
probation, and at worst, the presumptive
sentence of 6 to 8 months, and [defendant] has
indicated that she wants a trial on that, and
we wanted to put that on the record, Your
The Court: Is that correct, [defendant]?
[Defendant]: Yes, ma’am.
The Court: All right.
[The State]: Your Honor, that’s correct as to
the plea offer, and, on this calendar, she has
two counts of Trafficking in Opium, one by
possession and one by a sale, in 06 CRS 53426.
The Court: All right. . . .
We decline to reach defendant’s IAC assignment of error because
the record is not fully developed and it is not properly raised
before us at this stage of review. State v. Blizzard, 169 N.C. App.
285, 299, 610 S.E.2d 245, 255 (2005).
IAC claims brought on direct
review will be decided on the merits “when the cold record reveals
that no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.”
(quoting State v. Fair, 345 N.C. 131, 166, 557 S.E.2d 500, 524
Here, the record is insufficient for this Court to fully
determine whether defendant was properly advised by counsel of the
-8potential sentence the trial court could impose upon her conviction
of two trafficking charges.
Defendant’s assignment of error is dismissed without prejudice
to defendant’s right to file a motion for appropriate relief and
request a hearing to determine whether she received effective
assistance of counsel.
See id. at 300, 610 S.E.2d at 255 (“The
accepted practice is to raise claims of [IAC] in post-conviction
proceedings, rather than direct appeal.” (Quoting State v. Dockery,
assignment of error is dismissed without prejudice to defendant’s
right to file a motion for appropriate relief in superior court.
Plain error review is inapplicable where the trial court did
not act ex mero motu to advise defendant of the potential maximum
sentence she could face if she rejected the State’s plea offer and
was convicted as charged.
After careful review of the record, briefs and contentions of
the parties, we decline to consider defendant’s claim of IAC and
dismiss this assignment of error without prejudice to defendant’s
right to file a motion for appropriate relief.
No error in part and dismissed without prejudice in part.
Judges BRYANT and ARROWOOD concur.