IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-1026
Filed 21 October 2026
Cabarrus County, No. 24CR223723-120
STATE OF NORTH CAROLINA
v.
GARY JOHN PLUMMER, II
Appeal by defendant from judgment entered 18 December 2024 by Judge
Martin B. McGee in Cabarrus County Superior Court. Heard in the Court of Appeals
13 August 2026.
Attorney General Jeff Jackson, by Chief Deputy Fellow Allyson S. Barkley, for
the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
ZACHARY, Judge.
Defendant Gary John Plummer, II, appeals from the judgment entered upon
his entry of an Alford1 plea to the charges of assault on a female, felonious restraint,
and interfering with emergency communications. On appeal, Defendant argues that
the trial court erred by denying his post-sentencing motion to withdraw his Alford
1 “A defendant enters into an Alford plea when he proclaims he is innocent, but intelligently
concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” State v. Crawford, 278 N.C. App. 104, 105 n.1, 861 S.E.2d 18, 21 n.1 (2021) (extraneity omitted), disc. review denied, 382 N.C. 728, 879 S.E.2d 582 (2022); see also North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171 (1970).
STATE V. PLUMMER
Opinion of the Court
plea. After careful review, we affirm the court’s decision but remand for the limited
purpose of correcting a clerical error in the judgment.
I. Background
On 6 July 2022, Defendant was charged with assault on a female. The
complainant was his girlfriend, Sara Smith.2 Defendant was subsequently charged
with resisting, delaying, or obstructing a police officer and assault on a law
enforcement officer, following an altercation with Defendant during officers’ service
of the arrest warrant for the previous charge. The State dismissed the charge of
assault on a female but not the later charges. Defendant was convicted of resisting,
delaying, or obstructing a police officer and assault on a law enforcement officer in
Cabarrus County District Court and then appealed to Superior Court. As a condition
of his release pending appeal, Defendant was ordered to have no contact with Ms.
Smith.
On 5 November 2022, Defendant was arrested and charged with assault on a
female and assault by strangulation of Ms. Smith. Again, the court ordered
Defendant to have no contact with Ms. Smith pending trial. On 1 February 2024,
Defendant was arrested and charged with assault on a female, kidnapping, and
interfering with emergency communications; again, the victim was Ms. Smith.
Due to Defendant’s “violation of multiple court orders” prohibiting him from
2 We have adopted a pseudonym to protect the victim’s identity.
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Opinion of the Court
having contact with Ms. Smith, on 16 December 2024, the State filed a motion to
modify the conditions of Defendant’s release, requesting that the court “revoke . . .
[D]efendant’s bond, forfeit any bond previously posted, and institute” a secured
$100,000.00 bond. That same day, the State extended a plea offer to Defendant.
Two days later, on 18 December 2024, Defendant entered an Alford plea to the
charges of assault on a female, felonious restraint, and interfering with emergency
communications. In exchange for Defendant’s plea, the State dismissed all other
pending charges and stipulated to a suspended sentence.
During the plea hearing, the trial court thoroughly reviewed the Transcript of
Plea, which Defendant had signed, with Defendant:
THE COURT: Other than the plea arrangement between
you and the prosecutor, has anyone promised you anything
or threatened you in any way to cause you to enter this plea
against your wishes?
DEFENDANT: Revoke my bond.
THE COURT: Okay. Well, I understand they talked about
that being a possibility. But ha[ve] any of those promises
or threats caused you [to] enter[ ] this plea against your
wishes?
DEFENDANT: Truthfully? No.
THE COURT: All right. Do you need to talk to your lawyer
about that? Because I’m asking the question, . . . you need
to be clear with me what you want to do. So this needs to
be your own free will. This is your choice as to what you
decided you wanted to do given all of the options that are
in front of you, all the positives and all the negatives. I’m
go[ing to] ask you one more time. If you need time to think
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Opinion of the Court
about it, talk to [your] lawyer then I’ll give you an
opportunity to do that.
(Discussion at defense table.)
THE COURT: All right. Sir, you’ve had an opportunity to
talk with your lawyer. I’m going to go through this with you
again.
Other than the plea arrangement between you and [the]
prosecutor, has anyone promised you anything or
threatened you in any way to cause you to enter this plea
against your wishes?
DEFENDANT: No.
THE COURT: Do you enter this plea of your own free will,
fully understanding what you’re doing?
DEFENDANT: Yes.
The prosecutor then summarized the factual basis for the charges against
Defendant; Defendant lodged no objection. The trial court accepted Defendant’s
Alford plea and sentenced him to 16 to 29 months’ imprisonment in the custody of
the North Carolina Department of Adult Correction. In accordance with the plea
arrangement, the court suspended Defendant’s sentence and placed him on 18
months of supervised probation.
The following day, Defendant made an oral motion to withdraw his Alford plea.
The trial court heard the arguments of counsel and denied Defendant’s motion,
reasoning:
I’ve considered all of the information before the [c]ourt, I’ve
touched on some of the factors that we’ve discussed, and
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Opinion of the Court
that is, [D]efendant entered an Alford plea, so he does not
plead factually guilty but entered into an Alford plea,
stipulated that there was a factual basis for the [c]ourt to
accept the plea. The [c]ourt considered the State’s proffer
yesterday in deciding whether or not to accept the plea. The
time length between the guilty plea and his request that it
be set aside was within 24 hours.
I would find that [Defendant] understood the consequences
of the plea. I went through and thoroughly reviewed the
plea transcript with him, talked to him about
consequences, gave him an opportunity to consult with his
lawyer, even during the plea transcript process. I will find
that the plea was not entered in haste. The cases have been
pending, some of them back to 2022. There was a plea offer
made, I understand it was made this week. He had an
opportunity to consider whether he wished to accept that
or not. The State does not have to make a plea offer. They
can withdraw it at any point. Gave him an opportunity to
do that. The plea was entered into yesterday, which was
Wednesday, in the middle of the week.
I would find that he was not under coercion . . . at that time.
He specifically said something about having a bond
hearing. Of course, it’s the [c]ourt’s decision whether or not
bonds are revoked. Anyone can come before the [c]ourt and
seek that the bond be modified, [Defendant] as well as the
State, explained that process to him, said if he felt -- I
explained on the record that -- I went through that question
in terms of whether or not anyone had promised him or
threatened him in any way. After I explained that process,
he said no. I would find that he was not under coercion at
the time, was not confused. He entered the plea that he did.
[The] State took the action it did with regard[ ] to
dismissing some of those charges.
I would find there was no manifest injustice in this matter
and I would deny the motion.
Defendant gave oral notice of appeal.
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Opinion of the Court
II. Discussion
Defendant argues that the trial court erred by denying his post-sentencing
motion to withdraw his Alford plea. He also contends that this matter should be
remanded to the trial court to correct a clerical error appearing in the judgment.
A. Post-Sentencing Motion to Withdraw Plea
1. Standard of Review
“When a defendant seeks to withdraw a guilty plea . . . post-sentence, it is
properly treated as a motion for appropriate relief.” State v. Konakh, 266 N.C. App.
551, 556, 831 S.E.2d 865, 869 (2019) (extraneity omitted). “When reviewing a trial
court’s findings on a motion for appropriate relief, the findings are binding if they are
supported by competent evidence and may be disturbed only upon a showing of
manifest abuse of discretion.” Id. (extraneity omitted). “Unchallenged findings of fact
are presumed to be supported by competent evidence and are binding on appeal.” Id.
(extraneity omitted). “[C]onclusions of law are fully reviewable on appeal.” Id.
2. Analysis
“While there is no absolute right to [the] withdrawal of a guilty plea,
withdrawal motions made prior to sentencing, and especially at a very early stage of
the proceedings, should be granted with liberality.” State v. Handy, 326 N.C. 532,
537, 391 S.E.2d 159, 161–62 (1990) (citations omitted). Withdrawal of a guilty plea
before sentencing is permitted where a defendant “meets his burden of showing that
his motion is supported by a fair and just reason and the court determines that
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Opinion of the Court
withdrawal of the plea will not cause substantial prejudice to the State.” State v.
Suites, 109 N.C. App. 373, 375, 427 S.E.2d 318, 320 (citation omitted), disc. review
denied, 333 N.C. 794, 431 S.E.2d 29 (1993). By contrast, “[w]hen a defendant seeks
to withdraw a guilty plea after sentencing, his motion should be granted only where
necessary to avoid manifest injustice.” Id. (emphasis added).
As our Supreme Court has explained, “[i]t should be easier to withdraw a plea
before sentenc[ing] than after” because:
First, once [a] sentence is imposed, the defendant is more
likely to view the plea bargain as a tactical mistake and
therefore wish to have it set aside. Second, at the time the
sentence is imposed, other portions of the plea bargain
agreement will often be performed by the prosecutor, such
as the dismissal of additional charges or the return or
destruction of physical evidence, all of which may be
difficult to undo if the defendant later attacks his guilty
plea. Finally, a higher post-sentence standard for
withdrawal is required by the settled policy of giving
finality to criminal sentences which result from a voluntary
and properly counseled guilty plea.
Handy, 326 N.C. at 537, 391 S.E.2d at 161, 162.
In Handy, our Supreme Court articulated a number of factors relevant to a
court’s consideration of a defendant’s pre-sentencing motion to withdraw a guilty
plea, such as “whether the defendant has asserted legal innocence, the strength of
the State’s proffer of evidence, the length of time between the entry of the guilty plea
and the desire to change it, and whether the accused has had competent counsel at
all relevant times.” Id. at 539, 391 S.E.2d at 163. Further, “[m]isunderstanding the
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Opinion of the Court
consequences of a guilty plea, hasty entry, confusion, and coercion are also factors for
consideration.” Id. However, the Handy factors are neither “intended to be exhaustive
nor definitive; rather, they are designed to be an instructive collection of
considerations[.]” State v. Taylor, 374 N.C. 710, 723, 843 S.E.2d 46, 55 (2020).
This Court has concluded that the factors delineated in Handy also apply to
post-sentencing motions to withdraw a guilty plea. See State v. Shropshire, 210 N.C.
App. 478, 481, 708 S.E.2d 181, 183, disc. review denied, 365 N.C. 204, 710 S.E.2d 28
(2011); State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247 (2002).
On appeal, Defendant argues that the following factors support his claim that
the trial court’s denial of his post-sentencing motion to withdraw his plea constituted
manifest injustice: “the fact that [Defendant] moved to withdraw his plea less than
24 hours after sentencing; his assertion of innocence; the weakness of the State’s
case”; and the coercion inherent in the State’s leverage of its bond-modification
motion “to induce [Defendant] to accept its plea offer” rather than spend Christmas
in jail. We disagree.
Length of Time Between Plea and Motion to Withdraw
Defendant contends that “the standard for judging the movant’s reasons for
delay remains low where the motion comes only a day or so after the plea was
entered.” (citing Handy, 326 N.C. at 539, 391 S.E.2d at 162). But as the State correctly
notes, Handy involved a pre-sentencing motion to withdraw a plea, which is analyzed
under the less demanding “fair and just reason” legal standard. State v. Salvetti, 202
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Opinion of the Court
N.C. App. 18, 34, 687 S.E.2d 698, 708 (citation omitted), disc. review denied, 364 N.C.
246, 699 S.E.2d 919 (2010). By contrast, a post-sentencing motion to withdraw a plea
should be granted only where the defendant meets the heightened standard: that
withdrawal of the plea is necessary to avoid manifest injustice. Id.
In the present case, Defendant has not shown how the timing of his postsentencing motion to withdraw his plea weighs in favor of withdrawal—particularly
when the State had already dismissed several pending charges in accordance with
the parties’ plea arrangement. Thus, this factor ultimately does not weigh in favor of
a determination of manifest injustice.
Assertion of Innocence
Defendant also maintains that he asserted his innocence before the trial court,
contending that “a defendant necessarily asserts his innocence when he enters an
Alford plea[.]”
Failure to assert his innocence weighs heavily against a defendant. See State
v. McGill, 250 N.C. App. 121, 129, 791 S.E.2d 702, 707 (2016), disc. review denied,
369 N.C. 534, 797 S.E.2d 12 (2017). A plea of “no contest or an Alford plea does not
conclusively establish the factor of assertion of legal innocence for purposes of the
Handy analysis.” State v. Chery, 203 N.C. App. 310, 315, 691 S.E.2d 40, 44 (2010).
“Significantly, our research has failed to produce a single case in which our appellate
courts have found that the trial court erred in denying a defendant’s motion to
withdraw his guilty plea where the defendant did not, as a ground for his motion,
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Opinion of the Court
assert his legal innocence.” McGill, 250 N.C. App. at 128, 791 S.E.2d at 707; see, e.g.,
State v. Saldana, 291 N.C. App. 674, 896 S.E.2d 193 (2023), disc. review dismissed,
cert. denied, 386 N.C. 340, 901 S.E.2d 800 (2024); Chery, 203 N.C. App. 310, 691
S.E.2d 40; State v. Watkins, 195 N.C. App. 215, 672 S.E.2d 43 (2009); State v.
Villatoro, 193 N.C. App. 65, 666 S.E.2d 838 (2008); State v. Graham, 122 N.C. App.
635, 471 S.E.2d 100 (1996).
Here, Defendant cites only his Alford plea—with no other evidence—to support
his assertion of innocence. As this Court has determined, an Alford plea does not
constitute an assertion of innocence for the purposes of the Handy factors. Chery, 203
N.C. App. at 315, 691 S.E.2d at 44. Indeed, Defendant stipulated that there was a
factual basis for the plea. Thus, Defendant has failed to establish that he asserted his
innocence, and this Handy factor weighs heavily against him. McGill, 250 N.C. App.
at 129, 791 S.E.2d at 707.
Strength of the State’s Proffer of Evidence
Defendant next contends that the State’s case was “weak” because it “relied
entirely on the testimony of a single witness”—Ms. Smith—who “had been
uncooperative with the prosecution.” Defendant suggests that the trial court failed to
properly evaluate the strength of the State’s case when it limited its analysis to
whether there was a factual basis for the plea. We disagree.
“We must view the State’s proffer [of evidence] based upon what was presented
to the court at the plea hearing.” Chery, 203 N.C. App. at 315, 691 S.E.2d at 45. “[A]
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Opinion of the Court
strong, uncontested forecast of evidence weighs against allowing a defendant to
withdraw his plea.” State v. Crawford, 278 N.C. App. 104, 109, 861 S.E.2d 18, 23
(2021) (citation omitted), disc. review denied, 382 N.C. 728, 879 S.E.2d 582 (2022).
To support Defendant’s guilty plea to the charges of assault on a female,
felonious restraint, and interfering with emergency communications, the State
offered the following factual basis:
[W]hen [Ms. Smith] realized her boyfriend was at another
place and not where he said he was go[ing] [to] be, she
drove there, found [Defendant]. An argument ensued. That
is when [Ms. Smith] indicated that she was pulled from her
vehicle by [Defendant], put into his truck, and then driven
away being assaulted during the entire process.
[Ms. Smith] did let deputies know that she attempted to
call 911 during this felonious restraint portion. He then
took her phone prohibiting her from doing that.
Defendant stipulated that there was a factual basis for the plea. He did not
contest the sufficiency of the State’s proffer of evidence, other than to comment that
“some of those facts are correct, some of them are not,” without offering further
explanation or objection.
On appeal, Defendant asserts—without citation to authority—that “[a] proper
evaluation of the strength of the State’s proffer of evidence would have involved
considerations such as the likelihood of [Defendant’s] conviction at trial when the
State’s entire case turned on the reliability of Ms. [Smith].” Yet our Supreme Court
has determined that the “term that is dispositive of this Handy factor [is] ‘sufficient.’ ”
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Opinion of the Court
Taylor, 374 N.C. at 720, 843 S.E.2d at 53. That is, contrary to Defendant’s
unsupported position on appeal, the standard is not the likelihood of conviction;
instead, it is the sufficiency of the State’s evidence to support the plea.
Here, Defendant stipulated to the factual basis for the plea. Additionally, our
appellate courts have consistently held that a plea’s uncontested factual basis weighs
against allowing the withdrawal of a guilty plea. See id. (“Since the strength of the
State’s proffer of evidence against [the] defendant that was presented as the factual
basis at the plea hearing was essentially uncontested and therefore sufficient, we
agree . . . that this factor likewise fails to support withdrawal of his guilty plea.”
(extraneity omitted)); Chery, 203 N.C. App. at 315, 691 S.E.2d at 45 (“We again note
that [the] defendant did not contest the State’s proffer of a factual basis for the plea
at the hearing.”).
Accordingly, this factor does not support a determination of manifest injustice.
Knowing and Voluntary Plea
Defendant further argues that because the State had filed a motion to modify
his bond, Defendant was compelled to choose between accepting the State’s offer of a
plea arrangement that provided for no additional jail time or “the possibility of a huge
arbitrary bond increase,” which would have resulted in his incarceration during the
Christmas holidays. He characterizes this choice as “coercive,” rendering his plea
involuntary. We disagree.
“A court may accept a guilty plea only if it is made knowingly and voluntarily.”
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Opinion of the Court
Russell, 153 N.C. App. at 511, 570 S.E.2d at 248 (extraneity omitted). “A plea is
voluntarily and knowingly made if the defendant is made fully aware of the direct
consequences of his plea.” Id. (citation omitted). “[I]f the defendant signed a
Transcript of Plea and the record reveals the trial court made a careful inquiry of the
defendant, it is sufficient to show the defendant’s plea was knowingly and voluntarily
made, with full awareness of the direct consequences.” Id. (extraneity omitted).
In the present case, Defendant signed a Transcript of Plea, and the trial court
conducted an extensive colloquy before accepting the plea. During the colloquy, the
trial court reviewed each question on the Transcript of Plea, ensuring that Defendant
understood the plea, appreciated its consequences, and was satisfied with his legal
counsel. While it is true that a motion to modify Defendant’s bond was pending, that
decision was ultimately within the trial court’s discretion. Ultimately, the court
allowed Defendant an additional opportunity to confer with defense counsel, and he
expressly denied that the motion to modify the conditions of release influenced his
decision to plead guilty.
Furthermore, Defendant received significant incentives to accept the plea.
Pursuant to the plea arrangement, the State dismissed the 2022 charges of assault
by strangulation, assault on a female, assault on a government official, and resisting
a public officer and stipulated that Defendant would receive no jail time. Defendant
was given two days to review the plea agreement, weigh his options, and make a
reasoned decision rather than a hasty and coerced choice. Thus, we conclude that
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Opinion of the Court
Defendant knowingly and voluntarily entered into the plea without haste, confusion,
or coercion. This Handy factor weighs against a determination of manifest injustice.
No Manifest Injustice
Defendant does not challenge the competency or effectiveness of his counsel,
and the remaining Handy factors do not favor a conclusion of manifest injustice.
Therefore, the trial court did not abuse its discretion in denying Defendant’s motion
to withdraw his guilty plea. Accordingly, Defendant’s argument is overruled.
B. Clerical Error
Defendant notes on appeal—and the State concedes—that the judgment
contains a clerical error as to the amount of attorney’s fees that Defendant was
ordered to pay as a condition of his probation. We agree.
The transcript reveals that the court ordered Defendant to pay $767.00 in
attorney’s fees, but the judgment erroneously requires Defendant to pay $1,534.00.
Therefore, we remand to the trial court for the limited purpose of correcting the
amount of attorney’s fees that Defendant owes in this matter. See State v. Smith, 188
N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (“When, on appeal, a clerical error is
discovered in the trial court’s judgment or order, it is appropriate to remand the case
to the trial court for correction because of the importance that the record speak the
truth.” (extraneity omitted)).
III. Conclusion
For the foregoing reasons, we conclude that the trial court did not err in
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Opinion of the Court
denying Defendant’s post-sentencing motion to withdraw his Alford plea.
Accordingly, we affirm the judgment but remand to the trial court for the limited
purpose of correcting the clerical error therein concerning the amount of attorney’s
fees owed by Defendant.
AFFIRMED IN PART; REMANDED FOR CORRECTION OF CLERICAL
ERROR.
Judges WOOD and GORE concur.
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