An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1496


Filed: 1 July 2003


v .                         Gaston County
                            Nos. 98 CRS 37318-24,
                                99 CRS 1634,
                                01 CRS 61372-77

    Appeal by defendant from judgments entered 6 May 2002 by Judge Jesse B. Caldwell, III in Gaston County Superior Court. Heard in the Court of Appeals 30 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Deborrah L. Newton, for the State.

    William D. Auman for defendant-appellant.

    TYSON, Judge.

I. Background

    On 7 February 2002, Gary Duke Perry (“defendant”) pled guilty pursuant to a plea agreement to seven counts of possession with intent to sell or deliver heroin, three counts of selling heroin, three counts of maintaining a place to keep a controlled substance, two counts of possession of cocaine, one count of possession with intent to sell or deliver cocaine, and one count of possession of heroin. Defendant stipulated to a factual basis for the plea and the State offered a factual summary. The court found that a factual basis existed for entry of the plea and accepted defendant's guilty plea. Sentencing was continued until 7 March2002.
    Defendant failed to appear on 7 March 2002, but returned to court for sentencing on 6 May 2002. At the court's request, defendant's counsel gave a brief summary of the factual basis for the plea. The trial court struck the plea for the limited purpose of correcting an erroneous advisement as to the maximum sentence that defendant could receive. Defendant was re-arraigned, pled guilty and stipulated to the factual basis for the entry of the plea. The court then sentenced defendant to three consecutive terms of twenty-one to twenty-six months imprisonment in accordance with the plea agreement. Defendant appeals.
II. Issue

    Defendant's sole argument on appeal is that the trial court erred by accepting his guilty plea because there was no factual basis to support the plea.
III. Factual Basis for Plea

    Defendant contends that because the plea entered on 7 February 2002 was vacated, the factual summary recited by the State had no bearing on the plea entered on 6 May 2002. Defendant further argues that the limited factual summary recited by defendant's counsel was insufficient to support the plea. Defendant asserts that without factual basis on the record to support the guilty plea, the plea should be stricken and the matter remanded for trial.
IV. State's Motion to Dismiss

    The State has moved to dismiss the appeal, arguing thatdefendant has no appeal of right and has not petitioned this Court for a writ of certiorari. We agree. Defendant is not entitled to review of his conviction because he pled guilty. N.C.G.S. 15A- 1444(a1) (2001). Defendant's right to appellate review is limited to a review of whether the sentence imposed resulted from an incorrect calculation of defendant's prior record level. G.S. 15A- 1444(a2) (2001).
    Defendant does not seek review of his prior record level calculation. Defendant argues that the trial court erred by accepting his guilty plea without a factual basis to support the plea. Defendant is not entitled to appellate review of this issue because he has not made a motion to withdraw his guilty plea. See State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. rev. denied, 356 N.C. 442, 573 S.E.2d 163 (2002); N.C.G.S. 15A- 1444(e) (2001).
V. Conclusion

    We dismiss the appeal without prejudice to defendant's right to file a motion to withdraw his guilty plea in superior court.
    Appeal dismissed.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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