STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 99 CRS 15116
GREGORY LYNN ROSS 00 CRS 06801
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Hartsell, Hartsell, & White, P.A., by H. Jay White, for
defendant appellant.
BIGGS, Judge.
K, a five-week-old girl, was admitted to the Emergency Room of
Northeast Medical Center on the night of 1 September 1999,
suffering from vaginal trauma indicating sexual abuse, bruises to
her face and scalp, severe blunt force trauma to her skull and
brain, and a contusion of her spinal cord. She died from her
injuries two days later. On 13 September 1999, a grand jury
indicted Gregory Lynn Ross (defendant) on charges of first-degree
statutory sex offense, first-degree murder, and felony child abuse.
In exchange for a dismissal of the felony child abuse and first-
degree murder charges, defendant entered a guilty plea to second-
degree murder and an Alford plea to first-degree statutory sexoffense. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d
162 (1970). The trial court sentenced defendant to consecutive
prison terms totaling 527 to 651 months.
Defendant raises three issues on appeal. He claims the trial
court erred in denying his request for a continuance. Next,
defendant avers the court erred in denying his motion for a bill of
particulars. Finally, he challenges the trial court's failure to
dismiss the short-form murder indictment, because it failed to
allege the underlying felony offense required for a charge of
first-degree murder under the felony murder rule.
The State has filed a motion to dismiss defendant's appeal on
the ground that the issues raised do not fall within his appeal of
right under N.C.G.S. § 15A-1444 (2001).
"The right to appeal in a criminal proceeding is purely
statutory." State v. Nichols, 140 N.C. App. 597, 598-99, 537
S.E.2d 825, 826 (2000) (quoting State v. Shoff, 118 N.C. App. 724,
725, 456 S.E.2d 875, 876 (1995)). The appellate rights of a
defendant who pleads guilty are defined by N.C.G.S. § 15A-1444(a1)
and (a2) (2001). State v. Jarman, 140 N.C. App. 198, 535 S.E.2d
875 (2000). Under these subsections, the issues properly brought
on appeal following a guilty plea are (1) whether the evidence
supports the defendant's sentence, if the sentence is not within
the presumptive range, (2) whether the defendant's prior record
level or prior conviction level is correctly calculated, (3)
whether the type of sentence or term of imprisonment is authorized
by statute, based on the defendant's class of offense and priorrecord or conviction level. In addition to these sentencing
issues, N.C.G.S. § 15A-979 (2001) allows the defendant to appeal
the denial of a pre-trial motion to suppress, if he gives notice to
the prosecutor and trial court before entering his guilty plea.
Finally, a defendant has an appeal of right from the denial of
a motion to withdraw his guilty plea. See N.C.G.S. § 15A-1444(e).
“If a defendant who has pled guilty does not raise the specific
issues enumerated in subsection [s (a1) and] (a2) and does not
otherwise have a right to appeal, his appeal should be dismissed.”
State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998)
The issues raised by defendant lie outside his appeal of
right. Accordingly, we allow the State's motion to dismiss. We
note that defendant waived his pre-trial procedural rights by
pleading guilty. See State v. Hughes, 136 N.C. App. 92, 524 S.E.2d
63 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878
(2000), and that he has not challenged the sufficiency of the
short-form indictment to support the charge of second-degree murder
to which he pled guilty. See State v. Caldwell, 269 N.C. 521, 526,
153 S.E.2d 34, 37-38 (1967) (A guilty plea "waives all defenses
other than that the indictment charges no offense.").
Appeal dismissed.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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