STATE OF NORTH CAROLINA
v. Pitt County
No. 01 CRS 59547
JEFFREY RAY HARRISON,
Defendant.
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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