State v Johnson, (02-1687) 10/07/2003

Appeal by defendant from judgment entered 19 August 2002 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 25 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.

Lynne Rupp, for defendant-appellant.

GEER, Judge.

    Defendant James Alfred Johnson purports to appeal from a judgment entered on 19 August 2002 consistent with his plea of guilty to possession of a firearm by a felon and to his admission of his habitual felon status. The dispositive issue is whether this Court has the authority to review that judgment. Because the issues raised by defendant do not fall within the scope of the review authorized by N.C. Gen. Stat. § 15A-1444 (2001), we grant the State's motion to dismiss.
    Defendant was indicted for possession of a firearm by a felon with his felon status established by a 27 June 1996 conviction for sale and delivery of cocaine. In a separate bill of indictment, defendant was charged with attaining the status of habitual felonbased on the following three prior felonies: (1) a 17 September 1987 assault with a deadly weapon inflicting serious injury conviction; (2) a 13 March 1995 possession of stolen property conviction; and (3) the 27 June 1996 possession with intent to sell and deliver cocaine conviction.
    Defendant pled guilty to possession of a firearm by a felon and admitted to being an habitual felon. The trial court accepted defendant's guilty plea and found one mitigating factor and no aggravating factors. The trial court then sentenced defendant to 80 to 105 months imprisonment. Defendant appealed.
    The State filed a motion to dismiss defendant's appeal arguing that defendant's right to appeal is precluded by N.C. Gen. Stat. § 15A-1444 and defendant's guilty plea. Defendant has not responded to the State's motion.
    A defendant's right to appeal a conviction is "purely statutory." State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd per curiam, 342 N.C. 638, 466 S.E.2d 277 (1996). Under N.C. Gen. Stat. § 15A-1444, the statute specifying when a defendant in a criminal case may appeal, "[a] defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered." N.C. Gen. Stat. § 15A-1444(a) (2001). With respect, however, to a defendant who has entered a guilty plea, N.C. Gen. Stat. § 15A-1444(e) limits the right to appeal to cases in which the defendant is "appealing sentencing issues or the denial of a motion to suppress, or thedefendant 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). The sentencing issues that may be appealed include: (1) the sentence, when not within the presumptive range, is not supported by evidence; (2) the sentence resulted from an incorrect finding of defendant's prior record level or prior conviction level; or (3) the sentence, including the term of imprisonment, is not authorized by statute for defendant's class of offense and prior record or conviction level. N.C. Gen. Stat. § 15A-1444(a1), (a2).
    The two assignments of error that defendant brings forward in his brief on appeal are: (1) his conviction as an habitual felon must be vacated because the date of the sale and delivery of cocaine conviction, upon which defendant's sentence was enhanced, "overlaps those of the priors used to establish Defendant's habitual felon status"; and (2) the length of his sentence resulting from his status as an habitual felon violates his constitutional right against cruel and unusual punishment. Neither of these arguments raises issues that may be appealed under N.C. Gen. Stat. § 15A-1444. We, therefore, conclude that defendant is not entitled to appellate review as a matter of right.
    Although N.C. Gen. Stat. § 15A-1444(e) provides that a defendant not entitled to appellate review as a matter of right "may petition the appellate division for review by writ of certiorari," we find that we would not have authority to review the issues raised by defendant even had they been included in apetition for writ of certiorari. This Court held in State v. Dickson, 151 N.C. App. 136, 138, 564 S.E.2d 640, 640 (2002), that N.C.R. App. P. 21(a)(1) limits review pursuant to a writ of certiorari to situations when a defendant has failed to take timely action, is attempting to appeal from an interlocutory order, or is seeking review of a denial of a motion for appropriate relief. None of those categories apply here.
    This dismissal of defendant's appeal is, however, without prejudice to defendant's right to file a motion for appropriate relief with the trial court pursuant to N.C. Gen. Stat. §§ 15A-1415 and 1420 (2001).

    Dismissed.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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