STATE OF NORTH CAROLINA Forsyth County
Nos. 01CRS015461, 055988
v. 028291, 055948,
052836
GREGORY T. EVANS
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.
Dismissed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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