STATE OF NORTH CAROLINA
v. Wilkes County
Nos. 01CRS051468-71
TIMOTHY LEON JOHNSTON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Angel E. Gray, for the State.
Thorsen Law Office, by Haakon Thorsen, for defendant-
appellant.
HUNTER, Judge.
On 10 December 2001, Timothy Leon Johnston (“defendant”) pled
no contest pursuant to a plea agreement to three counts of
trafficking in cocaine, one count of sale of cocaine, and one count
of possession with intent to sell or deliver cocaine. Prayer for
judgment was entered and the case was continued until 4 February
2002. On 11 February 2002, judgments were entered on the
convictions. Defendant was sentenced to a term of thirty-five to
forty-two months imprisonment for one of the trafficking
convictions. The remaining convictions were consolidated for
judgment and defendant was sentenced to a consecutive term ofthirty-five to forty-two months imprisonment. Defendant appeals.
We find no error.
Counsel appointed to represent defendant has been unable to
identify any issue with sufficient merit to support a meaningful
argument for relief on appeal and asks that this Court conduct its
own review of the record for possible prejudicial error. Counsel
has also shown to the satisfaction of this Court that he has
complied with the requirements of Anders v. California, 386 U.S.
738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331
S.E.2d 665 (1985), by advising defendant of his right to file
written arguments with this Court and providing him with the
documents necessary for him to do so.
On 14 October 2002, defendant filed written arguments with
this Court. Pursuant to Anders and Kinch, we must determine from
a full examination of all the proceedings whether the appeal is
wholly frivolous. Defendant argues that he was pressured into
accepting the plea agreement and received ineffective assistance of
counsel. Defendant also contends that he was not given the
opportunity to comply with the terms of the plea agreement, in
which he was to give substantial assistance to the police in their
investigation in exchange for leniency. Defendant further argues
that he was not guilty of the crime charged, but was entrapped.
Initially, we note that defendant is not entitled to review of
his conviction since he pled no contest. See N.C. Gen. Stat. §
15A-1444(a) (2001). Defendant is also not entitled to review of
his sentence since he was sentenced within the presumptive range. N.C. Gen. Stat. § 15A-1444(a1). Thus, defendant's right to
appellate review is limited to a review of whether the sentence
imposed resulted from an incorrect calculation of defendant's prior
record level. N.C. Gen. Stat. § 15A-1444(a2)(1). However,
defendant does not seek review of his prior record level
calculation.
Furthermore, to the extent that defendant is arguing that the
State did not comply with the plea agreement, defendant is not
entitled to appellate review because he has not made a motion to
withdraw his guilty plea. See 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).
Additionally, with regards to defendant's argument that he
received ineffective assistance of counsel, defendant fails to make
his claims with any specificity. Furthermore, defendant's claim is
best raised upon a motion for appropriate relief in the trial
court. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985) (“[t]he accepted practice is to raise claims of
ineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal”). Thus, we decline to review
defendant's argument.
In addition to defendant's arguments, this Court has reviewed
the record for other possible prejudicial error and has found none.
Accordingly, we conclude that the appeal is wholly frivolous.
No error.
Judges BRYANT and ELMORE concur. Report per Rule 30(e).
*** Converted from WordPerfect ***