NO. COA02-979
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.
Dismissed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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