State v. Thompson

190 S.E.2d 877 (1972)

STATE of North Carolina v. James H. THOMPSON.

No. 725SC560.

Court of Appeals of North Carolina.

August 30, 1972.

Certiorari Denied October 3, 1972.

*878 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Roy A. Giles, Jr., for the State.

Jeffrey T. Myles, Wilmington, for the defendant appellant.

Certiorari Denied by Supreme Court October 3, 1972.

HEDRICK, Judge.

The defendant first asserts the Court erred "in failing to explain to the defendant the charges of uttering a forged instrument and in failing to make sure that he understood all the elements of this charge". This contention challenges the trial court's adjudication that the defendant's pleas of guilty were freely, understandingly, and voluntarily entered. The record reveals that the defendant signed the "transcript of plea" contained in the record and that the trial judge, after the defendant was sworn to tell the truth, made careful inquiry of the defendant regarding his pleas of guilty. The record is replete with evidence to support the adjudication that the defendant's pleas of guilty were in fact freely, understandingly, and voluntarily given. State v. Hunter, 11 N.C.App. 573, 181 S.E.2d 752 (1971); State v. Hunter, 279 N.C. 498, 183 S.E.2d 665 (1971); cert. den., 405 U.S. 975, 92 S. Ct. 1195, 31 L. Ed. 2d 249 (1972); State v. Cadora, 13 N.C.App. 176, 185 S.E.2d 297 (1971). This contention is meritless.

Next, the defendant contends "that the trial Judge erred in entering judgment against the defendant on three charges of Uttering a Forged Instrument in that the State had failed to prove that the defendant had uttered a forged instrument."

Defendant's voluntary plea of guilty obviated any necessity of proof by the State, and when such plea was entered, his appeal presents for review only whether the indictment charges an offense punishable under the Constitution and law. State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971); State v. Cadora, supra. In this case the record affirmatively shows the defendant freely and understandingly pleaded guilty to three valid charges of uttering forged instruments and the prison sentences imposed are within the limits prescribed for a violation of the statute, G.S. § 14-120. This assignment of error has no merit.

In his fifth assignment of error, "defendant respectfully contends, that based *879 upon the North Carolina Supreme Court decision in In re Swink, 243 N.C. 86, 89 S.E.2d 792 (1955), the sentence imposed in 72CR1586 lacks the degree of certainty required of judgments in criminal cases". The case of In re Swink, supra, is factually distinguishable and is not controlling. In In re Smith, 235 N.C. 169, 172, 69 S.E.2d 174, 175 (1952), it is stated:

"`When a term of imprisonment is still unexpired, the prisoner being in custody, the proper course at common law is to appoint the second imprisonment to begin at the expiration of the first, to be specifically referred to in the sentence; and a sentence to this effect, when the prior imprisonment is specified, is sufficiently exact.' Whart. Criminal Law, 10th Ed., p. 2307; 24 C.J.S. Criminal Law § 1581, p. 107; 15 Am.Jur. 123; Anno. 70 A.L.R. 1511 et seq.; In re Black . . . [162 N.C. 457, 78 S.E. 273]; State v. Cathey, 170 N.C. 794, 87 S.E. 532; State v. Duncan . . . [208 N.C. 316, 180 S.E. 595]; In re Parker . . . [225 N.C. 369, 35 S.E.2d 169]."

In State v. Lightsey, 6 N.C.App. 745, 746, 171 S.E.2d 27, 29 (1969), this Court held that the imposition of sentence "to begin at the expiration of any and all sentences the defendant is now serving in the North Carolina Department of Correction" clearly indicated the intent of the trial judge that the sentences of defendant be served consecutively without resort to evidence aliunde. In the present case, without resorting to evidence aliunde, the record clearly discloses that it was the intention of the trial judge that the prison sentence imposed in case number 72CR1586 was to commence "at the expiration of the sentence the defendant is now serving". This assignment of error is overruled.

The defendant has other contentions which we have considered and find without merit. The defendant had a fair trial free from prejudicial error.

No error.

BROCK and MORRIS, JJ., concur.