State v Harvey, 163 NC App 612 (03-622) 04/06/2004

Appeal by defendant from judgment entered 28 October 2002 by Judge Evelyn W. Hill in Superior Court, Wake County. Heard in the Court of Appeals 22 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Terry F. Rose for defendant-appellant.

WYNN, Judge.

    Under Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (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 correspondence and have found no error. Accordingly, we affirm the judgment below.
    The record on appeal reveals that on 25 February 2002, the Wake County grand jury indicted Defendant on charges of trafficking in cocaine by possession, trafficking in cocaine by transportation, conspiracy to traffic in cocaine by possession and transportation, maintaining a dwelling for keeping and/or selling controlled substances, two counts of possession with intent to sell marijuana,and two counts of possession with intent to deliver marijuana. Defendant pled guilty to the charges pursuant to a plea arrangement on 28 October 2002. In accordance with the terms of the plea arrangement, the trial court consolidated the convictions for judgment, imposed a fine of $100,000.00, and sentenced Defendant to a term of seventy to eighty-four months imprisonment. From the trial court's judgment, Defendant appeals.
    Defendant's counsel brings forward no questions on appeal and presents no arguments in Defendant's brief. She states that “[u]pon review of the transcript of the Plea and Sentencing Hearings as well as the Entry of Judgment, counsel can find no reason to believe error was committed in accepting the plea or issuing the sentence.” Defendant's counsel “requests this Court review the record for any prejudicial error pursuant to Anders v. California . . . and State v. Kinch . . ..” By letters dated 23 April 2003 and 6 June 2003, Defendant's counsel informed Defendant that in her opinion there was no error in Defendant's trial and that Defendant could file her own arguments in this Court if she so desired. Copies of the transcript, record, and the brief filed by counsel were sent to Defendant. We hold that Defendant's counsel has substantially complied with the holdings in 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). Pursuant to Anders and Kinch, we must determine from a full examination of all the proceedings whether the appeal is wholly frivolous.    On 1 July 2003, Defendant filed correspondence containing a pro se argument with this Court in which she complains of “'countless' cruel stabs from a very overbearing Judge who has had countless news media viewings on her conduct and misbehavior.” Her argument appears to be that her guilty plea was not voluntary as a result. As an initial matter, a Defendant is entitled to appellate review as a matter of right only in limited circumstances when he or she has pled guilty to a criminal charge in superior court. See N.C. Gen. Stat. § 15A-1444(e) (2003). Because Defendant is not challenging her sentence, see N.C. Gen. Stat. § 15A-1444(a1) and (a2), the denial of a motion to suppress, see N.C. Gen. Stat. § 15A-979 (2003), or the denial of a motion to withdraw her guilty plea, see N.C. Gen. Stat. § 15A-1444(e), her argument does not fall within this Court's scope of the review. See id. We conclude that Defendant is not entitled to appeal this issue as a matter of right and further note that review by writ of certiorari would be inappropriate. See State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002).
    The issue of the voluntariness of Defendant's guilty plea is more appropriately raised with the trial court pursuant to a motion for appropriate relief. See N.C. Gen. Stat. § 15A-1415 (2003). Having reviewed the entire record, we find the appeal to be wholly frivolous.
    No error.
Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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