State v. Benfield

140 S.E.2d 706 (1965)

264 N.C. 75

STATE v. Donald BENFIELD.

No. 168.

Supreme Court of North Carolina.

March 17, 1965.

*707 Atty. Gen. T. W. Bruton, and Deputy Atty. Gen. Harvey W. McGalliard, for the State.

Robert E. Gaines, Gastonia, for defendant appellant.

PER CURIAM.

Defendant was represented in both the hearing below and now by counsel other than the attorney who represented him in February 1964. The record and "appeal" were docketed here on January 26, 1965, less than 60 days from the rendition of the judgment denying defendant relief. We treat the "appeal" as an application for a writ of certiorari. The application is granted.

Judge Campbell denied defendant's prayer for a new trial on these findings: The case was regularly called for trial in February 1964. Defendant entered pleas of not guilty. A jury was impaneled. During the course of the trial, the presiding *708 judge had a conference with the solicitor and counsel for defendant, at which time the judge informed defendant's counsel that "he (the judge) was of the opinion that the jury was going to convict the defendant, and, if so, he felt inclined to give him a long sentence, and gave counsel an opportunity to confer with defendant." The statements made by the judge during the conference were communicated to defendant. The judge did not promise to suspend sentence if a plea of guilty was entered. When defendant was informed of the statements made by the presiding judge at the conference between the solicitor and defendant's counsel, defendant withdrew his plea of not guilty, and tendered a plea of guilty. This plea was accepted. The court then, in open court, inquired whether defendant's plea of guilty was freely and voluntarily made, explaining to defendant that the court could impose sentences providing for imprisonment for a total of 90 years. Hearing this explanation from the court, the defendant stated that his plea of guilty was freely made.

The fact that defendant's companion in the robberies was, when awarded a new trial, given a suspended sentence is not controverted. That fact was known to defendant. It is simply an element which must be taken into consideration in determining whether in fact the plea of guilty was freely and voluntarily made. The fact that the court interrupted the hearing before all the evidence was in to express the opinion that the jury would convict defendant, followed by the statement that, if convicted, defendant could expect "a long sentence," necessarily leads, we think, to the conclusion that defendant changed his plea from not guilty to guilty because of what the judge said. It cannot be said that the plea was in fact a voluntary plea. On the findings made, Judge Campbell should have awarded a new trial. Defendant may now be tried on the bills charging him with armed robbery.

Reversed.