A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-807


Filed: 4 June 2002


         v.                        Buncombe County
                                Nos. 97 CRS 52890
                                    97 CRS 137-38

    Appeal by defendant from judgment entered 20 February 1998 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 28 May 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General T. Lane Mallonee, for the State.

    Belser & Parke, P.A., by David G. Belser, for the defendant.

    HUDSON, Judge.

    Defendant Donald Franklin Vick was charged with the attempted murder of his wife, discharging a firearm into occupied property and assault with a deadly weapon with intent to kill inflicting serious injury. Pursuant to a plea agreement, defendant pled guilty to the above charges on 20 February 1998. All three charges were consolidated for judgment. Consistent with the plea agreement, the trial court sentenced defendant to a term of imprisonment from a minimum of 150 months to a maximum of 189 months, which was within the presumptive range of the most serious offense of attempted murder, a class B2 felony. Defendant's 26June 2001 appellate entries show that defendant gave notice of appeal to this Court, however, the record on appeal does not contain defendant's notice of appeal.
    On 1 October 2001, defendant filed a “Motion to Deem Brief Timely Filed or, in the Alternative, Petition for Writ of Certiorari” with this Court. Defendant's counsel states that he was unable to complete the brief on time and “prays the Court to deem [his] brief timely filed or in the alternative, to consider this motion a Petition for Writ of Certiorari and [] grant the petition.” The State contends, and we agree, defendant has no appeal of right from the judgment in this case. See N.C. Gen. Stat. § 15A-1444(a1) and (e)(1999) (a defendant who pleads guilty and is sentenced within the presumptive range is not entitled to appeal as a matter of right the issue of whether the sentence is supported by the evidence introduced at the sentencing hearing, but may petition the appellate court for a review by writ of certiorari). We hereby treat defendant's motion to deem his brief timely filed, as a petition for writ of certiorari, which we allow, and we review his argument on its merits.
    Defendant contends that the trial court erred by failing to find as a mitigating factor that he was suffering from a mental or physical condition that was insufficient to constitute a defense, but significantly reduced his culpability for the offense.
    Here, the court found five factors in mitigation and one aggravating factor, but imposed a sentence within the presumptive range, noting that the factors “counterbalanced” each other. ThisCourt has held that the “trial court [is intended] to take into account factors in aggravation and mitigation only when deviating from the presumptive range.” State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997); see also, State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. rev. denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Thus, we hold that even though the trial court chose to find some mitigating factors, it was not required to do so, and did not err by failing to find the additional factor urged by defendant.
    Judges GREENE and TYSON concur.
    Report per Rule 30(e).

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