Appeal and Error--appealability--guilty plea--habitual felon indictment
Defendant's appeal from his sentence for possession of cocaine after a guilty plea and
from the habitual felon indictment, allegedly being attached to a misdemeanor instead of a
felony, is dismissed without prejudice to his right to file a motion for appropriate relief under
N.C.G.S. § 15A-1413, because: (1) defendant does not have a right of appeal when neither
argument is presented in conjunction with the denial of a motion to withdraw a guilty plea or a
motion to suppress evidence as required by N.C.G.S. §§ 15A-1444(e) and 15A-979(b); (2)
neither challenges the sufficiency of the evidence as required by N.C.G.S. § 15A-1444(a1); (3)
defendant did not assert the trial court improperly applied the sentencing statutes under N.C.G.S.
§§ 15A-1340.14, 15A-1340.17, 15A-1340.21, or 15A-1340.23; and (4) the Court of Appeals is
without authority to issue a writ of certiorari.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Bruce T. Cunningham, Jr., for defendant-appellee.
CALABRIA, Judge.
Keith Lee Jamerson (“defendant”) pled guilty to possession of
cocaine and to attaining the status of habitual felon. Defendant
appeals asserting the sentence of 80 to 105 months imprisonment
violated his constitutional protection against cruel and unusual
punishment. Defendant also asserts the trial court erred in
failing to dismiss the habitual felon indictment on the ground that
“N.C. Gen. Stat. § 14-7.6 provides that to be indicted as an
Habitual Felon a defendant must 'commit a felony'” and possession
of cocaine is a misdemeanor. The preliminary issue is whether this Court has the authority
to hear defendant's appeal. “In North Carolina, a defendant's
right to appeal in a criminal proceeding is purely a creation of
state statute. Furthermore, there is no federal constitutional
right obligating courts to hear appeals in criminal proceedings.”
State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869
(2002).
A defendant who pleads guilty has a right of appeal limited to
the following:
1. Whether the sentence “is supported by the evidence.” This
issue is appealable only if his minimum term of imprisonment
does not fall within the presumptive range. N.C. Gen. Stat.
§ 15A-1444(a1) (2001);
2. Whether the sentence “[r]esults from an incorrect finding
of the defendant's prior record level under G.S. 15A-1340.14
or the defendant's prior conviction level under G.S. 15A-
1340.21.” N.C. Gen. Stat. § 15A-1444(a2)(1) (2001);
3. Whether the sentence “[c]ontains a type of sentence
disposition that is not authorized by G.S. 15A-1340.17 or G.S.
15A-1340.23 for the defendant's class of offense and prior
record or conviction level.” N.C. Gen. Stat. § 15A-
1444(a2)(2) (2001);
4. Whether the sentence “[c]ontains a term of imprisonment
that is for a duration not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant's class of offense and
prior record or conviction level.” N.C. Gen. Stat. § 15A-
1444(a2)(3) (2001); 5. Whether the trial court improperly denied defendant's
motion to suppress. N.C. Gen. Stat. §§ 15A-979(b)(2001), 15A-
1444(e) (2001);
6. Whether the trial court improperly denied defendant's
motion to withdraw his guilty plea. N.C. Gen. Stat. § 15A-
1444(e).
Defendant's assertions on appeal, that his sentence violates
his constitutional protection against cruel and unusual punishment,
and that the habitual felon indictment was improper because the
substantive crime to which it attached was a misdemeanor not a
felony, are not issues for which defendant has an appeal of right.
Neither argument is presented in conjunction with the denial of a
motion to withdraw a guilty plea or a motion to suppress evidence.
N.C. Gen. Stat. §§ 15A-1444(e), 15A-979(b). Additionally, neither
challenges the sufficiency of the evidence. N.C. Gen. Stat. § 15A-
1444(a1). Finally, defendant does not assert the trial court
improperly applied the following sentencing statutes: N.C. Gen.
Stat. §§ 15A-1340.14, 15A-1340.17, 15A-1340.21, 15A-1340.23.
Therefore, defendant does not have an appeal of right to this
Court.
Where a defendant does not have an appeal of right, our
statute provides for defendant to seek appellate review by a
petition for writ of certiorari. N.C. Gen. Stat. § 15A-1444(e).
However, our appellate rules limit our ability to grant petitions
for writ of certiorari to the following situations: (1) defendant
lost his right to appeal by failing to take timely action; (2) the
appeal is interlocutory; or (3) to review a trial court's denial ofa motion for appropriate relief. N.C.R. App. P. 21(a)(1) (2003).
In considering appellate Rule 21 and N.C. Gen. Stat. § 15A-1444,
this Court has reasoned that since the appellate rules prevail over
conflicting statutes, we are without authority to issue a writ of
certiorari except as provided in Rule 21. State v. Nance, 155 N.C.
App. 773, 574 S.E.2d 692 (2003); Pimental, 153 N.C. App. at 73-74,
568 S.E.2d at 870; State v. Dickson, 151 N.C. App. 136, 564 S.E.2d
640 (2002). Accordingly, we are without authority to review either
by right or by certiorari the trial court's denial of defendant's
motion to dismiss the habitual felon indictment or defendant's
assertion the judgment violates his constitutional rights.
Without an appeal of right or the authority to grant
certiorari, this Court may not consider the arguments asserted by
defendant. Although defendant's assertion that the habitual felon
indictment was improperly attached to a misdemeanor is of
jurisdictional concern, our Supreme Court has explained that
“[w]hile it is true that a defendant may challenge the jurisdiction
of a trial court, such challenge may be made in the appellate
division only if and when the case is properly pending before the
appellate division.” State v. Absher, 329 N.C. 264, 265 & n.1, 404
S.E.2d 848, 849 & n.1 (1991). Moreover, the Court held defendant's
purported appeal must be dismissed. Id., 329 N.C. at 265, 404
S.E.2d at 849. Accordingly, we must dismiss defendant's appeal.
However, we note, defendant is not without relief. Defendant
may seek post-trial relief through a motion for appropriate relief.
N.C. Gen. Stat. § 15A-1411 thru -1422. Such relief must be sought
in the trial court, under N.C. Gen. Stat. § 15A-1413, since theappellate courts may rule on such a motion under N.C. Gen. Stat. §
15A-1418 only when the defendant has either an appeal of right or
a properly pending petition for a writ of certiorari. State v.
Waters, 122 N.C. App. 504, 470 S.E.2d 545 (1996). See State v.
Hawkins, 110 N.C. App. 837, 431 S.E.2d 503 (1993) (holding a
defendant who pled guilty may not appeal asserting his indictment
was facially invalid, rather his remedy lies with a motion for
appropriate relief). Accordingly, we dismiss defendant's appeal
without prejudice to defendant's right to file a motion for
appropriate relief.
Dismissed.
Judges McGEE and HUDSON concur.
*** Converted from WordPerfect ***