State v Elliott, (02-1324) 07/01/2003

Appeal by defendant from judgments entered 9 April 2002 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 23 June 2003.

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

Michael E. Casterline for defendant-appellant.

WYNN, Judge.

    Under 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), we have fully examined the record for possible prejudicial error under N.C. Gen. Stat. § 15A-1444 and have found no error. Furthermore, we have reviewed defendant's pro se arguments and have found no error. Accordingly, we affirm the judgment of the Superior Court, Stokes County.
    Defendant pled guilty to three counts of first-degree-sexual offense, one count of first-degree-statutory rape, one count of indecent liberties with a child, and two counts of crimes against nature. The trial court consolidated defendant's first-degree-sexual offense and first-degree rape convictions for judgment, and sentenced defendant to 240-297 months imprisonment. The trial court consolidated the remaining charges into a second judgment, which provided that defendant receive a suspended sentence of 16-20 months imprisonment and be placed on probation for 60 months. Defendant timely noticed appeal.
    Counsel for defendant has been unable to identify any issue with sufficient merit to support a meaningful argument for appellate relief. Accordingly, defense counsel asks this Court to conduct its own review of the record for possible prejudicial error. Furthermore, defense counsel has shown, to the satisfaction of this Court, that he has complied with the requirements of Anders v. California and State v. Kinch by advising defendant of his right to file written arguments with this Court and providing him with the necessary documents.
    Defendant has submitted a letter to this Court's attention, in which he recapitulates several arguments that he made during sentencing, wherein he orally moved to withdraw his guilty plea. First, defendant argues he was under the influence of an antidepressant which made him passive. Second, defendant contends that he was erroneously advised by his attorney to plead guilty. Third, defendant argues that there was “duplicity” in the charges against him, and that there was insufficient evidence of penetration to support a conviction of first-degree-statutory rape. Notably, however, defendant specifically notes, herein, that he does not wish to withdraw his plea and go to trial. Instead,defendant would like “less time.”
    We have reviewed defendant's pro se arguments and find them to be without merit. First, petitioner's claims that his plea was not knowing and voluntary are negated by the transcript of plea and evidence of record. See State v. Jackson, 279 N.C. 503, 504, 183 S.E.2d 550, 551 (1971) (where there is sufficient evidence to support a finding that a guilty plea was freely and knowingly entered the plea should not be disturbed on appeal). Moreover, defendant does not seek to withdraw his guilty plea, and therefore, he has waived review of all defenses but the indictment's failure to charge an offense. See State v. Caldwell, 269 N.C. 521, 526, 153 S.E.2d 34, 37-38 (1967)(“An accused by pleading guilty waives all defenses other than that the indictment charges no offense.”). Finally, in accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. We conclude that the appeal is wholly frivolous. Furthermore, we have examined the record for possible prejudicial error and found none.
    Affirmed.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***