State v Kennedy, (02-587) 04/01/2003

Appeal by defendant from judgments entered 13 December 2001 by Judge Zoro J. Guice, Jr., in Henderson County Superior Court. Heard in the Court of Appeals 17 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Nancy R. Gaines for defendant appellant.

TIMMONS-GOODSON, Judge.

    Terry Kennedy (“defendant”) appeals from his convictions and resulting sentences entered after he pled guilty to various drug charges. For the reasons stated herein, we dismiss defendant's appeal.
    The pertinent facts of the instant appeal are as follows: On 13 December 2001, defendant pled guilty to ten counts of possession with intent to sell or deliver cocaine, ten counts of sale and delivery of cocaine, one count of possession of cocaine, one count of maintaining a place to keep controlled substances, and one count of misdemeanor possession of drug paraphernalia. The trial court accepted defendant's guilty plea and sentenced him to one activesentence of a minimum term of sixteen months' and a maximum term of twenty months' imprisonment. The trial court consolidated the remaining counts into four suspended sentences of a minimum term of sixteen months' and a maximum term of twenty months' imprisonment, and placed defendant on thirty-six months of supervised probation. Defendant purports to appeal from these judgments entered 13 December 2001.
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    The dispositive issue on appeal is whether this Court has the authority to review the trial court's judgments entered consistent with defendant's guilty plea. Because we conclude that issuance of a writ of certiorari is inappropriate under the facts of the instant case, we dismiss defendant's appeal.
    The sole assignment of error defendant brings forward in his brief on appeal is whether he received ineffective assistance of counsel. The State filed a motion to dismiss defendant's appeal, arguing that defendant's right to appeal is precluded by section 15A-1444 of the North Carolina General Statutes and defendant's guilty plea. Defendant asks this Court to deny the State's motion and, in the alternative, defendant petitions this Court for writ of certiorari to review the merits of his appeal.
    A defendant's right to appeal a conviction is “purely statutory.” State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995), affirmed per curiam, 342 N.C. 638, 466 S.E.2d 277 (1996). “[U]nder N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty is not entitled to appellate review as amatter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea.” State v. Pimental, ___ N.C. App. ___, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
    Here, defendant's ineffective assistance of counsel argument lies outside his right to appeal. We therefore conclude that defendant is not entitled to appellate review as a matter of right because his argument does not involve sentencing issues or the denial of a motion to suppress, and defendant did not move to withdraw his guilty plea. Accordingly, we allow the State's motion to dismiss.
    We now turn to defendant's request that this Court grant a writ of certiorari to address the merits of defendant's argument. In State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002), we noted that while section 15A-1444(e) of the General Statutes allows a defendant to petition for writ of certiorari after entering a guilty plea, the North Carolina Rules of Appellate Procedure limit the circumstances upon which a petition for writ of certiorari may be granted. See id. at 137-38, 564 S.E.2d at 640. Specifically, Rule 21(a)(1) permits a writ of certiorari to be granted only
        in appropriate circumstances . . . to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
N.C.R. App. P. 21(a)(1) (2003). Because defendant has not failed to take timely actions, is not attempting to appeal from an interlocutory order, and is not seeking review of an order of the trial court denying his motion for appropriate relief, this Court does not have the authority to issue a writ of certiorari. Accordingly, we deny defendant's petition for writ of certiorari.
    We note that the dismissal of defendant's appeal is without prejudice to defendant's right to file a motion for appropriate relief with the trial court pursuant to sections 15A-1415 and 1420 of the North Carolina General Statutes. Defendant's appeal is hereby
    Dismissed.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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