An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-360


Filed: 18 November 2003


v .                         Avery County
                            No. 02 CRS 50316

    Appeal by defendant from judgment entered 6 January 2003 by Judge Marlene Hyatt in Avery County Superior Court. Heard in the Court of Appeals 17 November 2003.

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

    William D. Auman for defendant-appellant.

    EAGLES, Chief Judge.

    Upon defendant's guilty plea to voluntary manslaughter, the trial court entered judgment sentencing him within the applicable presumptive range to a term of 96 to 125 months imprisonment. Defendant appealed.
    Counsel appointed to represent defendant on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), stating that he is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. He asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has submitted documentation showing his compliance with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), byadvising defendant of his right to file written arguments with the Court and providing him with a copy of the documents pertinent to his appeal. Defendant has not filed arguments in this Court, and a reasonable period for him to do so has passed.
    In accordance with Anders and Kinch, we have fully examined the record to determine whether any issues of arguable merit appear therein. We find no error and conclude that the appeal is frivolous.
    We note that defendant's handwritten notice of appeal filed in superior court includes a claim, unsupported by affidavit or other evidence, that his trial counsel incorrectly advised him about the sentence he would receive under the plea. Although this document appears in the record on appeal, defendant did not present his claim to this Court on appeal or in a motion for appropriate relief filed during the pendency of the appeal.     See N.C. Gen. Stat. § 15A-1418 (2001). Because the claim contained in defendant's notice of appeal has not yet been presented to this Court, our ruling is without prejudice to defendant's right to raise the issue in a motion for appropriate relief filed in superior court pursuant to N.C. Gen. Stat. § 15A-1420 (2001).
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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