STATE OF NORTH CAROLINA
v. Brunswick County
No. 01Crs-53723
JAMES OLIN BARRETT
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General William P. Hart and Assistant Attorney
General J. Philip Allen, for the State.
Peter Wood for defendant-appellant.
HUNTER, Judge.
James Olin Barrett (“defendant”) entered a guilty plea,
pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162
(1970), to the charge of robbery with a dangerous weapon. The
trial court sentenced him to 85 to 111 months imprisonment.
Defendant claims on appeal that the trial court erred in
accepting his Alford plea, arguing that his plea was not voluntary,
given his dissatisfaction with his trial counsel's advice. The
State has filed a motion to dismiss the appeal on the ground that
it raises issues outside of defendant's appeal of right under N.C.
Gen. Stat. § 15A-1444(e) (2001). We agree. “[D]efendant has made
no motion to withdraw the plea. Thus, according to N.C.G.S. §15A-1444 defendant is not entitled as a matter of right to
appellate review of his contention that the trial court improperly
accepted his guilty plea.” State v. Bolinger, 320 N.C. 596, 601,
359 S.E.2d 459, 462 (1987).
In response to the State's motion to dismiss, defendant asks
this Court to treat his appellant's brief as a “de[]facto petition
for a writ of certiorari[.]” We have recently held that N.C.R.
App. P. 21(a) precludes issuance of a writ of certiorari for this
purpose, despite statutory language to the contrary:
While N.C.G.S. § 15A-1444(e) allows a
defendant to petition for writ of certiorari
after entering a guilty plea, this Court is
limited to issuing a writ of certiorari “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.”
State v. Pimental, ___ N.C. App. ___, ___, 568 S.E.2d 867, 872
(2002) (quoting N.C.R. App. P. 21(a)). Here, as in Pimental,
defendant has not lost his right of appeal by failing to take
timely action; nor is he seeking review of a non-appealable
interlocutory order or of an order denying a motion for appropriate
relief. Therefore, as this Court is unable to grant a writ of
certiorari in the case at bar, and defendant is without a right to
appeal, the State's motion to dismiss the appeal is granted, the
petition for the writ of certiorari is denied, and defendant's
appeal is dismissed. Id. Motion allowed; appeal dismissed; petition denied.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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