An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-983


Filed: 18 March 2003


    v.                            Clay County
                                Nos. 01 CRS 878, 50153
JOSEPH KING SWEZEY, JR.                    

    Appeal by defendant from judgments dated 12 February 2002 by Judge James U. Downs in Clay County Superior Court. Heard in the Court of Appeals 4 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State

    William D. Auman for defendant appellant.

    BRYANT, Judge.

    Joseph King Swezey, Jr. (defendant) appeals from judgments dated 12 February 2002 entered consistent with his guilty pleas to charges of attempted first-degree burglary, attempted breaking or entering, two counts of conspiracy to commit common law robbery, breaking or entering, larceny, possession of stolen goods, burning of an uninhabited dwelling, conspiracy to commit breaking or entering and larceny, two counts of conspiracy to commit first- degree burglary, two counts of first-degree burglary, robbery with a dangerous weapon, and first-degree kidnapping. On 4 February 2002, defendant appeared in court to tender pleas of guilty pursuant to a negotiated plea agreement. Defendant pled guilty, and the trial court conducted a full inquiry regarding thevoluntariness of the plea, during which defendant stipulated to the factual basis for the plea. The trial court then continued judgment until 11 February 2002.
    On 11 February 2002, defendant appeared in court for sentencing. Prior to sentencing, defendant indicated that he was not satisfied with the plea arrangement. Defendant alleged as an issue the ineffective assistance of his counsel, complaining that counsel had not come to see him until one month earlier and that he did not think they “had enough time to go through any of this.” Arguing that he was not guilty of all the charges, defendant then indicated he would take the plea bargain, but would appeal. Accordingly, because defendant was “vacillating,” the trial court struck the plea agreement, concluding that Defendant had not voluntarily entered a plea, and set a trial date.
    On 12 February 2002, defendant returned to court and once more entered a plea of guilty pursuant to a negotiated plea agreement. The trial court again conducted an inquiry into the voluntariness of the plea. Defendant indicated that he was satisfied with his attorney, was guilty of all the offenses, and entered the plea freely and understandingly. Defendant further stipulated to the factual basis for the plea.
    Pursuant to the final plea agreement, defendant was sentenced to a term of 116 to 149 months imprisonment for the charge of first-degree kidnapping. Additionally, the counts of breaking or entering, attempted breaking or entering and conspiracy to breaking or entering, two counts of larceny, and one count each ofpossession of stolen goods, burning an uninhabited dwelling, first-degree burglary, and conspiracy to commit first-degree burglary were consolidated. Defendant was consequently sentenced to a consecutive term of 103 to 133 months imprisonment.


    The dispositive issue is whether defendant's appeal from his entry of a guilty plea is properly before this Court.
    Defendant argues that the trial court erred by accepting his guilty plea. Defendant contends there were obvious problems between him and his attorney resulting in ineffective assistance of counsel. Defendant further contends that, due to these problems, the trial court should have appointed new counsel to represent him ex mero motu. Accordingly, defendant argues his guilty plea was not knowingly and voluntarily entered.
    Initially, we note that defendant is not entitled to review of his conviction since he pled guilty and was sentenced in the presumptive range for his offenses. N.C.G.S. § 15A-1444(a1) (2001); see State v. Williams, 116 N.C. App. 354, 356, 447 S.E.2d 437, 438 (1994). Defendant's right to appellate review is limited to a review of whether the sentence imposed resulted from an incorrect calculation of his prior record level. N.C.G.S. § 15A- 1444(a2). Defendant, however, does not seek review of his prior record level calculation and, in fact, stipulated in his plea agreement to having a prior record level of III.
    With regard to defendant's assignment of error that his guilty plea was not voluntarily entered, defendant is not entitled toappellate review of this issue 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 (2002); State v. Young, 120 N.C. App. 456, 459, 462 S.E.2d 683, 685 (1995).
    Additionally, because of the lack of evidence available to this Court, defendant's argument that he received ineffective assistance of counsel would be more properly 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) (“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.
    Accordingly, as the arguments raised by defendant are not properly before this Court, we must dismiss this appeal.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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