An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1685


Filed: 1 July 2003


         v.                        Nash County
                                No. 01 CRS 051073

    Appeal by defendant from judgment entered 11 July 2002 by Milton F. Fitch, Jr. in Superior Court, Nash County. Heard in the Court of Appeals 23 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    WYNN, Judge.

    In accordance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (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.
    By a proper bill of indictment the defendant was charged with first-degree murder. The defendant pled guilty to second-degree murder pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). According to the terms of the plea agreement, the defendant plead guilty to second degree murder and, in exchange, he would receive a sentence from the low end of the mitigated range of a minimum of 132 months and a corresponding maximum of 168 monthsbased upon the defendant's prior record level of “III.” The defendant stipulated to the factual basis to support his guilty plea and the trial court accepted the defendant's plea.   (See footnote 1)  After the trial court found seven mitigating factors and no aggravating factors, the court sentenced the defendant to 132 to 168 months imprisonment.
    At the outset we note that the record on appeal does not include a notice of appeal. We, therefore, grant certiorari to review those issues the defendant would have been able to raise on his limited direct appeal. Specifically, “under 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, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002); See N.C. Gen. Stat. § 15A-1444(a2). While defense counsel asks this Court to issue certiorari to review issues outside the scope of the defendant's limited appeal, we are without authority to do so. See State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002) (providing that while N.C. Gen. Stat. § 15A-1444(e) allows a defendant to petition for writ of certiorari, the appellate court was limited by N.C.R. App. P. 21 to issuing awrit of certiorari in appropriate circumstances to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal had been lost by failure to take timely action, or when no right of appeal from an interlocutory order existed, or for review pursuant to N.C. Gen. Stat. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief).
    The defendant's counsel states that she “is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal,” and asks this Court to review the record for any prejudicial error. Counsel has shown to the satisfaction of this Court that she has complied with the requirements of 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), by advising the defendant of his right to file written arguments with this Court and providing him with documents necessary for him to do so. The defendant has not filed any written arguments on his own behalf with this Court, and a reasonable time in which he could have done so has passed.
    In accordance with Anders, we must fully examine the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. We conclude the appeal is wholly frivolous. In reaching this conclusion, we have conducted our own examination of the record for possible prejudicial error under N.C. Gen. Stat. § 15A-1444 and have found none.
    We hold defendant had a fair trial, free from prejudicial error.    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
        The transcript indicates the defendant was granted a different court-appointed attorney after stating he was dissatisfied with his counsel and the State presented the defendant's incriminating statement to police as part of its factual basis.

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