An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1113


Filed: 1 June 2004


         v.                        Guilford County
                                Nos. 02 CRS 23852 and

    Appeal by defendant from judgment dated 11 March 2003 by Judge Jerry Cash Martin in Superior Court, Guilford County. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Associate Attorney General Q. Shanté Martin, for the State.

    William H. Dowdy for defendant-appellant.

    McGEE, Judge.

    Robert Fredrick Williams, Jr. (defendant) was indicted on 9 December 2002 as being an habitual felon and subsequently was indicted on 21 January 2003 for five counts of financial transaction card theft. Defendant filed a pre-trial motion on 25 February 2003 to dismiss the habitual felon charge on the grounds that his punishment as an habitual felon for five Class I felonies violated his state and federal constitutional rights.
    The trial court denied defendant's motion to dismiss at a hearing on 11 March 2003. Defendant then pled guilty pursuant to a plea arrangement to five counts of financial transaction card theft and to being an habitual felon. The terms and conditions ofthe plea arrangement were as follows:
        The defendant shall receive an active sentence of 90-117 months - all cases consolidated into one.

        *Defendant has preserved his issue to appeal. habitual felon law is unconstitutional under the North Carolina Constitution - "cruel and unusual" punishment.

In accordance with the plea arrangement, the trial court consolidated the substantive offenses for judgment and imposed a sentence of 90 to 117 months in prison. Defendant appeals the trial court's judgment.
    Although defendant seeks to argue that the trial court committed plain error by accepting his guilty plea, when a defendant has pled guilty to a criminal charge in superior court, he is entitled to appellate review as a matter of right only in limited circumstances. State v. Dickson, 151 N.C. App. 136, 137, 564 S.E.2d 640, 640 (2002); N.C. Gen. Stat. § 15A-1444(e) (2003). Under specific circumstances, a defendant may appeal sentencing issues, the denial of a motion to suppress, or the denial of a motion to withdraw a plea of guilty or no contest. See N.C. Gen. Stat. § 15A-1444(a1), (a2) and (e) (2003).
    Defendant attempts to argue that the application of the habitual felon law chilled the exercise of his constitutional rights related to trial. This issue, however, is not an issue from which there is an appeal of right. See N.C. Gen. Stat. § 15A-1444. Further, "this Court does not have the authority to issue a writ of certiorari" because "[d]fendant has not failed to take timely action, is not attempting to appeal from an interlocutory order,and is not seeking review pursuant to N.C. Gen. Stat. § 15A- 1422(c)(3)." Dickson, 151 N.C. App. at 138, 564 S.E.2d at 641. Accordingly, defendant's appeal is dismissed.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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