IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-51

Filed 19 December 2023

Wayne County, No. 03 CRS 60546

STATE OF NORTH CAROLINA

v.

LUIS FERNANDO SALDANA.

Appeal by Defendant from an order entered 10 May 2022 by Judge William W. 

Bland in Wayne County Superior Court. Heard in the Court of Appeals 6 September 

2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Caden W. 

Hayes, for the State.

Appellant Defender Glenn Gerding, by Assistant Appellate Defender Heidi 

Reiner, for the Defendant.

North Carolina Advocates for Justice, by Christopher J. Heaney and North 

Carolina Justice Center, by Daniel Melo, Amici Curiea.

WOOD, Judge.

Luis Fernando Saldana (“Defendant”) appeals from the trial court’s order

denying his motion to withdraw his guilty plea entered 8 February 2005. After 

careful consideration of the record and applicable law, we affirm the trial court’s 

order. 

I. Factual and Procedural Background
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On 3 January 2005, Defendant was indicted by a grand jury for felony 

possession of cocaine, misdemeanor possession of a controlled substance, and 

misdemeanor possession of drug paraphernalia. On 8 February 2005, Defendant, 

through counsel, entered a plea of guilty to felony possession of cocaine in order to 

receive a conditional discharge pursuant to N.C. Gen. Stat. § 90-96. As a part of the 

plea transcript, Defendant affirmed, under oath, that he was satisfied “with [his] 

lawyer’s legal services”; that he understood “the nature of the charges” and discussed 

“possible defenses” with his lawyer; that he had “the right to plead not guilty and be 

tried by a jury”; and that “if [he] was not a citizen of the United States of America, 

[his] plea[] of guilty . . . may result in deportation, the exclusion from admission to 

this country, or the denial of naturalization under federal law.” The State, as part of 

the agreement, agreed to dismiss the pending misdemeanor charges. 

The trial court accepted Defendant’s plea on 8 February 2005 and, pursuant to 

the provisions of § 90-96, “defer[red] further proceedings” pending successful 

completion of various conditions, including payment of all fees, completion of a drug 

education program, and supervised probation. On 7 February 2006, the trial court, 

satisfied Defendant had complied with the previously imposed conditions for a 

conditional discharge, dismissed the charges against Defendant pursuant to the 

provisions of § 90-96. 

At the time of these proceedings, Defendant, an undocumented immigrant, 

resided in North Carolina, had been married since 2004 to an American citizen, and 
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was the father to a child born of the marriage. After the charges were dismissed 

against Defendant, he continued to reside in the United States and raise his three 

children with his wife. In 2021, Defendant was detained by immigration officials and 

sent to Stewart Detention Center in Lumpkin, Georgia as a consequence of the 2005 

guilty plea entered pursuant to § 90-96. Because of his undocumented status and 

guilty plea to a felony, Defendant was subject to mandatory detention without bond. 

On 19 January 2022, Defendant, through new counsel, filed a motion to 

withdraw his § 90-96 guilty plea. Defendant asserted that he had a “fair and just” 

reason to withdraw his guilty plea, because he was “confused” and did not know “that 

the conditional discharge would not result in the withdrawal of his guilty plea and 

that the guilty plea would still continue to constitute a conviction for [federal law] 

immigration purposes.” Specifically, Defendant alleged he did not “understand that 

the guilty plea would not be fully withdrawn upon his discharge from the post-plea 

diversion program.” Defendant further alleged his guilty plea “is unfairly preventing 

Defendant from applying [for] cancellation of removal for non-lawful permanent 

residents or consular processing with a 1-601A waiver” in order for Defendant to 

remain in the United States. Defendant’s motion also specifically stated he was not 

contending his original trial attorney rendered ineffective assistance of counsel.

On 6 May 2022, the trial court heard Defendant’s motion. At the hearing, 

Defendant’s counsel argued Defendant “was confused, he was misled by the 

circumstances” when he entered the § 90-96 guilty plea and based on communications 
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with “officers of the court, . . . he believed that he would be left with, quote, a clean 

slate.” During the hearing, Defendant’s wife testified that shortly after Defendant’s 

guilty plea was dismissed, the couple met with an immigration attorney “about what 

process we would need to go through to get him legal status.” According to 

Defendant’s wife, the immigration attorney told them there were “some laws or 

something hindering at the time, but they didn’t tell him specifically what it was, 

that it would be better if we waited and came back because there was going to be an 

election at the time, and they didn’t know if that would affect things.” 

Following Defendant’s wife’s testimony and arguments from the parties, the

trial court denied Defendant’s motion. On 10 May 2022, the trial court entered a 

written order, formally denying Defendant’s motion. In its written order, the trial 

court treated Defendant’s motion as a motion for appropriate relief (“MAR”) but noted 

that under either the “fair and just” standard or the “manifest injustice” standard, 

Defendant had not shown entitlement to relief. The “fair and just” standard applies 

to motions to withdraw a plea, and the “manifest injustice” standard applies to MARs. 

The trial court found “[D]efendant was represented by competent counsel . . . wellknown to the court as a skilled attorney with years of experience.” Additionally, the 

trial court noted that in the plea transcript Defendant marked the box acknowledging 

that he understood the plea could have immigration consequences and “nothing was 

presented or shown to support any assertion that [D]efendant was ‘misled’ by the 

court or by his trial counsel.” Accordingly, the court found “[t]he plea was not the 
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result of misunderstanding, haste, coercion, or confusion, but was entered knowingly 

and voluntarily.” The trial court further found that while “[t]he contention that 

sentencing was never entered is probably correct,” this is “not a dispositive issue” 

because the case “was fully dismissed by the court in a fair and just manner.” On 11 

May 2022, Defendant filed written notice of appeal.

II. Analysis

A. Appellate Jurisdiction

Defendant alleges the trial court addressed his claim as a motion to withdraw 

a plea and as a MAR. Defendant contends his pleading should have been treated by 

the trial court solely as a pre-sentence motion to withdraw his plea allowing him a 

right of direct appeal, but he has also filed a petition for writ of certiorari with this 

Court requesting appellate review of the merits of his appeal if his motion is treated 

as a MAR. According to Defendant, in consideration of the “seriousness of the 

consequences of allowing this plea to remain, the questionable constitutional validity 

of the plea itself, and the unusual procedural posture of his case,” this Court should 

grant his writ of certiorari to “address the meritorious claim raised in [his] brief.” In 

response, the State has filed a motion to dismiss Defendant’s appeal.

Because Defendant filed the MAR “long after the time for taking appeal had 

expired, he can obtain appellate review of the court’s ruling only by a petition for a 

writ of certiorari.” State v. Isom, 119 N.C. App. 225, 227, 458 S.E.2d 420, 421 (1996)

(emphasis added); N.C. Gen. Stat. § 15A-1422(c)(3) (2023). In our discretion, we grant 
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Defendant’s petition for writ of certiorari to consider the merits of Defendant’s appeal

and deny the State’s motion to dismiss Defendant’s appeal.

B. Standard of Review

Defendant argues the trial court “erred by denying [his] motion to withdraw 

his [§ 90-96] guilty plea because [he] gave fair and just reasons for doing so.” The 

basis of Defendant’s argument rests on the misapprehension that his motion to 

withdraw was asserted before sentencing on his plea and thus can be withdrawn if 

he can show a fair and just reason to do so. In refuting Defendant’s characterization 

of the motion to withdraw, the State argues the trial court appropriately categorized 

Defendant’s motion as a MAR which requires Defendant to prove his guilty plea 

amounts to “manifest injustice” and that Defendant is unable to do so. 

Whether a defendant should be allowed to withdraw a guilty plea is a question 

of law, which is reviewed de novo. State v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 

163 (1990). Under the de novo standard of review, the reviewing court considers the 

matter anew and freely substitutes its own judgment for the lower court’s judgment. 

Sutton v. N.C. Dep’t of Lab., 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)

(citation omitted). 

When considering rulings on MARs, we review the trial court’s order to 

determine “whether the findings of fact are supported by evidence, whether the 

findings of fact support the conclusions of law, and whether the conclusions of law 

support the order entered by the trial court.” State v. Frogge, 359 N.C. 228, 240, 607 
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S.E.2d 627, 634 (2005) (citation omitted). When a trial court’s findings on a MAR are 

reviewed, “these findings are binding if they are supported by competent evidence 

and may be disturbed only upon a showing of manifest abuse of discretion. However, 

the trial court’s conclusions are fully reviewable on appeal.” State v. Lutz, 177 N.C. 

App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation omitted). Because the facts 

underlying this case as described in the trial court’s findings of fact are undisputed, 

we only consider whether the trial court correctly concluded that Defendant was not 

entitled to relief.

C. N.C. Gen. Stat. § 90-96 Conditional Discharge Guilty Plea

Under § 90-96, in certain circumstances, when an individual who has not 

previously been convicted of “(i) any felony offense under any state or federal laws . . 

. pleads guilty to or is found guilty of” certain drug and controlled substances offenses, 

the trial court “shall, without entering a judgment of guilt and with the consent of 

the person, defer further proceedings and place the person on probation upon such 

reasonable terms and conditions as it may require . . .” N.C. Gen. Stat. § 90-96(a) 

(2023). Thus, § 90-96 provides a special form of conditional discharge wherein certain 

qualifying defendants may, for only their first qualifying offense, plead guilty or no 

contest, and “[u]pon fulfillment of the terms and conditions, the court shall discharge 

the person and dismiss the proceedings.” N.C. Gen. Stat. § 90-96(a). The statute 

further provides that after successful completion of these terms and conditions, the 

discharge and dismissal of the case “shall be without court adjudication of guilt and
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shall not be deemed a conviction.” N.C. Gen. Stat. § 90-96(a). Such a dismissal is 

“final for the purpose of appeal.” N.C. Gen. Stat. § 90-96(a).

The record evidence shows Defendant entered a guilty plea pursuant to § 90-

96 to defer further prosecutorial proceedings, complied with the conditions set forth 

in the guilty plea, and after successfully complying with the conditions, the trial court 

discharged and dismissed the proceedings against him. N.C. Gen. Stat. § 90-96.

However, Defendant and the State characterize Defendant’s motion to withdraw his 

guilty plea as two different procedural mechanisms for requesting relief. 

In State v. Handy, our Supreme Court examined the distinction between the 

treatment of a motion to withdraw a guilty plea made prior to sentencing and one 

made after sentencing. 326 N.C. at 536, 391 S.E.2d at 161. According to Handy, “[a]

motion to withdraw a guilty plea made before sentencing is significantly different 

from a post-judgment or collateral attack on such a plea, which would be by a motion 

for appropriate relief.” Id. (citations omitted).

A motion for appropriate relief is a post-verdict motion (or 

a post-sentencing motion where there is no verdict) made 

to correct errors occurring prior to, during, and after a 

criminal trial. N.C.G.S. § 15A-1411 (1988); Bailey, Trial 

Stage and Appellate Procedure Act: An Overview, 14 Wake 

Forest L. Rev. 899, 905-06 (1978). A party may make the 

motion “[a]fter the verdict but not more than 10 days after 

entry of judgment.” N.C.G.S. § 15A-1414(a) (1988). “Entry 

of [j]udgment” occurs “when sentence is pronounced.” 

N.C.G.S. § 15A-101(4a) (1988). 

Id. at 535, 391 S.E.2d at 160-61. The Court reasoned that a “fundamental distinction 
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exists between situations in which a defendant pleads guilty but changes his mind 

and seeks to withdraw the plea before sentencing and in which a defendant only 

attempts to withdraw the guilty plea after he hears and is dissatisfied with the 

sentence.” Id. at 536, 391 S.E.2d at 161. In explaining the difference in treatment of 

the two motions, the Court noted:

[i]n a case where the defendant seeks to withdraw his 

guilty plea before sentence, he is generally accorded that 

right if he can show any fair and just reason. On the other 

hand, where the guilty plea is sought to be withdrawn by 

the defendant after sentence, it should be granted only to 

avoid manifest injustice.

Id. (citations omitted). 

In the present case, the trial court correctly interpreted Defendant’s motion as 

a post-judgment motion on a guilty plea and thus, treated the motion as a MAR. The 

trial court’s dismissal of Defendant’s charge in 2006 pursuant to § 90-96, constituted 

the “final judgment” of this matter. When Defendant pleaded guilty in 2005, the trial 

court imposed various conditions to the § 90-96 conditional discharge, including

payment of restitution and community service, which Defendant eventually fulfilled. 

On 7 February 2006, the trial court entered final judgment on Defendant’s felony 

possession of cocaine charge by dismissing the charge under the terms of the § 90-96

judgment. Therefore, Defendant’s motion, brought nearly eighteen years after his 

case was dismissed, is a post-sentence MAR requiring Defendant to show manifest 

injustice in order to withdraw his guilty plea. 
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Our case law sets forth six non-exclusive factors to consider when determining 

whether a defendant has shown sufficient cause to withdraw his plea and these 

factors remain the same whether defendant has made a “pre-” or “post-sentencing” 

motion. State v. Konakh, 266 N.C. App. 551, 556-57, 831 S.E.2d 865, 869 (2019)

(citation omitted). The six factors include: (1) defendant’s assertion of legal 

innocence; (2) the strength of the State’s case; (3) the length of time between entry of 

the plea and the motion to withdraw; (4) the competency of counsel; (5) 

misunderstanding the consequences of the guilty plea, hasty entry, confusion, and 

coercion; and (6) prejudice to the State. See State v. Taylor, 374 N.C. 710, 719-25, 843 

S.E.2d 46, 52-56 (2020) (citing Handy, 326 N.C. at 539, 391 S.E.2d at 163).

If a defendant makes a prima facie showing of the existence of manifest 

injustice, “[t]he State may refute the movant’s showing by evidence of concrete 

prejudice to its case by reason of the withdrawal of the plea. Prejudice to the State is 

a germane factor against granting a motion to withdraw.” Id. at 725, 843 S.E.2d at 

56 (citing Handy, 326 N.C. at 539, 391 S.E.2d at 163).

In the present case, Defendant does not argue the first four factors related to 

the denial of his motion to withdraw his plea. Defendant has not asserted his legal 

innocence and he has not contested the strength of the State’s proffer of evidence for 

his felony possession of a controlled substance. Furthermore, Defendant filed his 

“motion to withdraw” the guilty plea nearly eighteen years after it was entered. 

Additionally, Defendant’s motion at trial and in his brief before this Court clearly 
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states he is not raising an argument as to his attorney’s competency or effective 

assistance. Instead, Defendant alleges he should be permitted to withdraw his guilty 

plea based upon a “[m]isunderstanding of the consequences of a guilty plea, hasty 

entry, confusion, and coercion.” Defendant contends

his hasty plea was marred by confusion and a lack of 

understanding about the severe immigration consequences 

that would result from the plea. In the month between 

indictment and plea, [Defendant] was not informed about, 

nor did he come to understand, the certain and grave 

immigration-related consequences his conditional 

discharge plea would entail. Instead, [Defendant]

reasonably understood a conditional discharge to mean 

dismissal of the charges and restoration to the position he 

was in before any allegations were made. [Defendant] had 

no inkling that a dismissal would be used against him to 

bar granting him a green card, to deport him, and to 

permanently bar him from reentering the United States. 

Defendant asserts he believed that his guilty plea would be “fully withdrawn” 

upon his completion of the conditions imposed by the trial court pursuant to § 90-96, 

so that the dismissed felony charge would be wiped clean from his record and could

not later be used against him. Defendant argues he did not learn until 2021 that his 

“conviction in this matter was only discharged for state purposes but not for 

immigration purposes” and that his guilty plea could lead to him being “held in 

immigration custody subject to mandatory detention.” Defendant contends he was 

unaware that his entering a guilty plea under a § 90-96 conditional discharge

agreement would qualify as a “conviction” under federal immigration law. Defendant 

argues had he “fully understood the consequences of taking the plea, in light of the 
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extreme immigration consequences, [he] likely would have made a different choice 

and taken his chance at trial.” While we are sympathetic to Defendant’s purported

misunderstanding of the consequences of his guilty plea, Defendant has not 

demonstrated the existence of a manifest injustice.

A plea agreement is contractual in nature, and the parties are bound by its 

terms. State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247 (2002) (citation 

omitted). A court may accept a guilty plea only if it is “made knowingly and 

voluntarily.” State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277 (1998) 

(citations omitted). A plea is voluntarily and knowingly made if the defendant is 

made fully aware of the direct consequences of his plea. Id. at 224, 506 S.E.2d at 277 

(citations omitted).

In consideration of whether there is manifest injustice on the grounds of a 

misunderstanding of the consequences of a guilty plea, a defendant “must show that 

the misunderstanding related to the direct consequences of his plea, not a 

misunderstanding regarding the effect of the plea on some collateral matter.” State 

v. Marshburn, 109 N.C. App. 105, 109, 425 S.E.2d 715, 718 (1993). “Direct 

consequences are those having a definite, immediate and largely automatic effect on 

the range of the defendant’s punishment for the crime charged.” Id. (cleaned up).

In Marshburn, we considered the effect a defendant’s guilty plea would have 

upon his pending federal criminal proceedings. In that case, the defendant sought to 

withdraw his eight-month-old guilty plea prior to “sentencing.” Id. Seeking to 
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withdraw his plea, the defendant argued he entered the plea “with the understanding 

that it would not count as a conviction in a pending federal drug case when in fact it 

was considered by the federal court as a conviction.” Id. at 108, 425 S.E.2d at 718. 

This Court rejected such a contention and concluded that “[a]ny effect [the 

defendant’s] plea had on the pending federal criminal proceedings was collateral and 

therefore not a basis for supporting a motion to withdraw the plea at issue.” Id. at 

109, 425 S.E.2d at 718. Accordingly, the defendant did not even satisfy the “fair and 

just reason” standard. Id.

Here, Defendant’s contention that he misunderstood the consequences of his 

guilty plea under a state statute would qualify as a conviction under federal 

immigration law is similar to the defendant’s argument in Marshburn. Here, as in 

Marshburn, the effect of Defendant’s guilty plea on his federal immigration 

proceedings is a collateral rather than a direct consequence of his plea. 

Furthermore, this Court has previously determined “if 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.” Russell, 153 N.C. 

App. at 511, 570 S.E.2d at 248 (citation omitted). Here, Defendant acknowledged 

under oath his awareness that his “plea[] of guilty . . . may result in deportation . . . 

or the denial of naturalization under federal law[.]” Therefore, at the time Defendant

entered his guilty plea, he was warned he was subject to deportation as an 
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undocumented immigrant residing in the United States. Defendant has not 

presented any “clear and convincing evidence to the contrary.” State v. Ager, 152 N.C. 

App. 577, 584, 568 S.E.2d, 328, 332 (2002) (noting that when a defendant states 

something under oath in conjunction with a plea, he is bound by such assertion 

“absent clear and convincing evidence to the contrary.”). Furthermore, we note that 

at the time of Defendant’s guilty plea, he was subject to removal from the United 

States regardless of the conditional discharge because of his status as an 

undocumented immigrant.

The State also aptly notes that at the time Defendant entered his guilty plea,

the law was unclear as to whether a conditional discharge 

would qualify as a “conviction” for immigration purposes. 

Indeed, it was not until 2017 that the Fourth Circuit 

definitively ruled that a conditional discharge guilty plea 

is a conviction under federal immigration law. See Jacquez 

v. Sessions, 859 F.3d, 258, 261-64 (2017). Before that, the 

Fourth Circuit had ruled that, at least in some instances, a 

conditional discharge was not a “conviction,” for 

immigration purposes. See Crespo v. Holder, 631 F.3d 130, 

136 (2011).

Defendant has not presented “clear and convincing” evidence to show he 

misunderstood the consequences of his plea or that he did not do so willingly and 

knowingly at the time his § 90-96 guilty plea was entered. Under North Carolina 

law, Defendant received exactly what he bargained for under his plea agreement: in 

exchange for his plea of guilty to the felony possession of cocaine charge, Defendant’s 

remaining charges were dismissed, and he received a conditional discharge of the 
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felony upon the completion of the conditions set by the court under state law. While 

Defendant may now regret the consequences of his guilty plea in light of its

implications under federal law, his remorse does not reflect a misunderstanding of 

the guilty plea at the time he entered into it. Based upon the record evidence before 

us, Defendant has not presented sufficient evidence to establish “manifest injustice”

in order for his guilty plea under N.C. Gen. Stat. § 90-96 to be withdrawn.

III. Conclusion

For the reasons stated above, we affirm the trial court’s order denying 

Defendant’s motion to withdraw his guilty plea under N.C. Gen. Stat. § 90-96.

AFFIRMED.

Judges CARPENTER and STADING concur.