An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-979


Filed: 4 March 2003


         v.                        Carteret County
                                Nos. 01 CRS 4437
FREDERICK DOUGLAS GIBBS                    01 CRS 50306    

    Appeal by defendant from judgment entered 2 October 2001 by Judge Charles H. Henry in Carteret County Superior Court. Heard in the Court of Appeals 24 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    Nora Henry Hargrove for defendant-appellant.

    TYSON, Judge.

I. Background

    Frederick Douglas Gibbs (“defendant”) pled guilty to felony possession of cocaine and admitted his status of habitual felon. The trial court accepted defendant's guilty plea, found no aggravating factors and one mitigating factor and sentenced defendant to the mitigated range of 101 months to 131 months imprisonment. Defendant purports to appeal from this judgment.
    Defendant's sole assignment of error in his brief is whether his adjudication as an habitual felon violated the due process, equal protection and double jeopardy clauses of the state and federal constitutions. The State filed a motion to dismiss defendant's appeal arguing that defendant's right to appeal isprecluded by N.C. Gen. Stat. § 15A-1444 and defendant's guilty plea. Defendant asks this Court to deny the State's motion and, in the alternative, moves this Court to treat his appeal as a petition for writ of certiorari and address the merits of his appeal.
II. Issue

    The dispositive issue is whether this Court has the authority to review the trial court's judgment entered consistent with defendant's guilty plea.
III. Right of 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), aff'd, 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 a matter 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 (2002) (citing State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002)).
    Here, defendant's constitutional arguments lie outside his right to appeal. We conclude 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. The State's motion to dismiss is allowed.
IV. Writ of Certiorari
    We now turn to defendant's request that this Court grant a writ of certiorari to address the merit of defendant's argument. In Dickson, this Court noted that while N.C. Gen. Stat. § 15A- 1444(e) allows a defendant to petition for writ of certiorari after entering a guilty plea, North Carolina Rules of Appellate Procedure limits the circumstances upon which a petition for writ of certiorari may be granted. Dickson, 151 N.C. App. at 137-38, 564 S.E.2d at 640. Specifically, N.C. R. App. P. 21(a)(1) provides:
        The writ of certiorari may be issued 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 exits, or for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.

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. Defendant's motion to treat his appeal as a petition for writ of certiorari is denied.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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