An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1133


Filed: 18 May 2004


         v.                        Pitt County
                                No.    01 CRS 59547
JEFFREY RAY HARRISON,                        

    Appeal by defendant from judgment entered 29 April 2003 by Judge Jerry R. Tillett in Pitt County Superior Court. Heard in the Court of Appeals 10 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

    James M. Bell for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant pled guilty to larceny of a motor vehicle and possession of stolen property. The trial court consolidated the offenses for judgment and sentenced defendant to imprisonment for a minimum term of sixteen months and a maximum term of twenty months. The sentence falls within the applicable presumptive range for a Class H felony based on defendant's Prior Record Level of VI. See N.C. Gen. Stat. §§ 14-72(a), 15A-1340.17(c),(d) (2003).
    In his sole argument on appeal, defendant claims the trial court failed to consider possible mitigating factors at sentencing, despite his proffer of uncontradicted evidence. The State has filed a motion to dismiss the appeal on the grounds that defendantfailed to give timely notice of appeal and has raised an issue which is outside the appeal of right following a guilty plea under N.C. Gen. Stat. § 15A-1444(a1), (a2) (2003).
    Under N.C.R. App. P. 4(a)(2), a defendant must give notice of appeal within fourteen days of entry of judgment. The record on appeal reflects the trial court's entry of judgment on 29 April 2003. Defendant signed his notice of appeal on 20 May 2003, and it was received by the district attorney's office on 27 May 2003. The materials before this Court reflect that petitioner's notice of appeal was filed at least twenty-one days after entry of judgment and was thus untimely. Accordingly, we lack jurisdiction to consider the appeal. Cf. Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) ("Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.").
    Moreover, under N.C. Gen. Stat. § 15A-1444(a1) and (a2) (2003), the right of appeal following a guilty plea is confined to the following issues: (1) whether the evidence supports the defendant's sentence, “only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record . . . level and class of offense[;]” (2) whether the defendant's prior record level was correctly calculated; and (3) whether the type of sentence disposition or the term of imprisonment was authorized by statute, based on the defendant's class of offense and prior record level. “If a defendant who haspled guilty does not raise the specific issues enumerated in subsection[s (a1) and] (a2) and does not otherwise have a right to appeal, his appeal should be dismissed.” State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998) (citing State v. Golden, 96 N.C. App. 249, 385 S.E.2d 346 (1989)). Inasmuch as defendant's sentence falls within the applicable presumptive range, he has no right to appeal the trial court's treatment of his evidence of mitigating factors. “The trial court sentenced defendant within the presumptive range . . . and was therefore not required to make findings in aggravation or mitigation.” State v. Dammons, 159 N.C. App. 284, 299, 583 S.E.2d 606, 615 (citing State v. Streeter, 146 N.C. App. 594, 598, 553 S.E.2d 240, 242-43 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002), cert. denied, 537 U.S.1217, 154 L. Ed. 2d 1071 (2003)), disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 2004 U.S. LEXIS 2256, 72 USLW 3599 (2004).
    Appeal dismissed.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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