An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-777


Filed: 4 May 2004

STATE OF NORTH CAROLINA                Forsyth County
                                Nos. 01CRS015461, 055988
         v.                            028291, 055948,

    On a writ of certiorari from judgment entered 20 February 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Amy C. Kunstling, for the State.

    Brannon Strickland, PLLC, by Anthony M. Brannon, for defendant-appellant.

    HUNTER, Judge.

    This appeal is before the Court on a writ of certiorari. This Court's order allowing the petition for writ of certiorari stated that the appeal is “limited to those issues defendant could have raised on direct appeal pursuant to N.C. Gen. Stat. § 15A-1444.” The State has moved to dismiss the appeal on the ground that the two issues defendant presents in his brief are not issues defendant has a right to raise on direct appeal. We agree with the State and dismiss this appeal.
    Defendant pled guilty to two counts of habitual felon status and two counts of possession with intent to sell or deliver cocaine. The court consolidated the convictions and sentenceddefendant within the aggravated range to an active term of 104-134 months imprisonment.
    Defendant contends (1) that his plea was not intelligently or voluntarily entered because if he had known he would be sentenced in the aggravated range, he would not have pled guilty; and (2) that he was denied effective assistance of counsel by trial counsel.
    A defendant who has entered a plea of not guilty and who is found guilty of a crime is entitled to appeal as a matter of right. N.C. Gen. Stat. § 15A-1444(a) (2003). However, a defendant who pleads guilty or no contest to a crime limits his right of appeal to the following issues:
        “1.    Whether the sentence 'is supported by the evidence.' This issue is appealable only if his minimum term of imprisonment does not fall within the presumptive range. N.C. Gen. Stat. § 15A-1444(a1) (2001);

        2.    Whether the sentence '[r]esults from an incorrect finding of the defendant's prior record level under G.S. § 15A-1340.14 or the defendant's prior conviction level under G.S. § 15A-1340.21.' N.C. Gen. Stat. § 15A- 1444(a2)(1) (2001);

        3.    Whether the sentence '[c]ontains a type of sentence disposition that is not authorized by G.S. § 15A-1340.17 or G.S. § 15A-1340.23 for the defendant's class of offense and prior record or conviction level.' N.C. Gen. Stat. § 15A-1444(a2)(2) (2001);

        4.    Whether the sentence '[c]ontains a term of imprisonment that is for a duration not authorized by G.S. § 15A-1340.17 or G.S. § 15A-1340.23 for the defendant's class of offense and prior record or conviction level.' N.C. Gen. Stat. § 15A-1444(a2)(3) (2001);
        5.    Whether the trial court improperly denied the defendant's motion to suppress. N.C. Gen. Stat. §§ 15A-979(b) (2001), 15A-1444(e) (2001);

        6.    Whether the trial court improperly denied defendant's motion to withdraw his guilty plea. N.C. Gen. Stat. § 15A-1444(e).”

State v. Jamerson, N.C. App. , 588 S.E.2d 545, 546-47 (2003). Neither of the issues defendant seeks to raise falls within these parameters. Therefore, defendant does not have a right to raise these issues on appeal.
    As reflected in the limiting language of our order allowing the petition for a writ of certiorari, we also may not review the issues by means of a writ of certiorari. Issuance of a writ of certiorari is strictly limited to the following situations: (1) when the right of appeal has been lost by failure to take timely action; (2) when the order of which review is sought is not final; or (3) when the order of which review is sought denied a post- conviction motion for appropriate relief. State v. Dickson, 151 N.C. App. 136, 137-38, 564 S.E.2d 640, 640 (2002).
    Although we must dismiss defendant's appeal for lack of jurisdiction, we note that defendant has a possible remedy in seeking post-trial relief in the form of a motion for appropriate relief filed in the trial tribunal. Jamerson, ___ N.C. App. at ___, 588 S.E.2d at 547.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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