An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1069


Filed: 19 April 2005


         v.                             Lenoir County
                                     No. 03 CRS 52468

    Appeal by defendant from judgment entered 13 April 2004 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 11 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.

    McAfee Law, P.A., by Robert J. McAfee for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Timothy Leon Farris was arrested on 18 May 2003 for operating a motor vehicle to elude arrest and was subsequently indicted by a grand jury for the same felony. Defendant pled no contest to the felony charge in exchange for the dismissal of other charges. After the trial court accepted defendant's plea, defendant informed the trial court that he had been in jail since 18 May 2003. The trial court entered judgment and sentenced defendant within the presumptive range to 8 to 10 months' imprisonment and gave defendant credit for 312 days spent in confinement prior to the date of the judgment. On 13 April 2004, the trial court entered an order in which it vacated its earlier judgment, struck the credit for 312 days as defendant was “incustody on another charge and is not entitled to receive double credit on the two charges”; gave defendant credit for 77 days, which was time he actually spent in jail for the speeding to elude arrest charge; and ordered defendant to return to the Department of Corrections to serve the remainder of his active sentence. That same day, the trial court entered an amended judgment to reflect the 77 days' credit. Defendant purports to appeal from the amended judgment entered 13 April 2004.
    The dispositive issue is whether this Court has the authority to review the trial court's judgments entered consistent with defendant's guilty plea. The assignments of error defendant brings forward in his brief on appeal are: (1) whether the trial court erred in entering an amended judgment out of term, out of court and without a hearing which substantially changed his jail time and which resulted in his re-arrest; and (2) whether he received ineffective assistance of counsel.
    A defendant's right to appeal a conviction is “purely statutory.” State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd, 342 N.C. 638, 466 S.E.2d 277 (1996). Section 15A-1444 sets out the circumstances under which a defendant may appeal as a matter of right. Under § 15A-1444(a1) and (a2), a defendant who pleads guilty may raise the following sentencing issues: (1) whether the evidence supports the defendant's sentence, if the sentence is not within the presumptive range; (2) whether the defendant's prior record level or prior conviction level is correctly calculated; and (3) whether the type of sentence or termof imprisonment is authorized by statute, based on the defendant's class of offense and prior record or conviction level. N.C. Gen. Stat. § 15A-1444(a1) and (a2) (2003). Additionally, subsection (e) allows a defendant to appeal the denial of a pretrial motion to suppress, if he gives notice to the prosecutor and trial court before entering his guilty plea, and to appeal the denial of a motion to withdraw his guilty plea. N.C. Gen. Stat. § 15A-1444(e).
    Here, the issues raised by defendant do not involve sentencing issues or the denial of a motion to suppress, and defendant did not move to withdraw his guilty plea. Defendant's arguments, therefore, lie outside his right to appeal under N.C. Gen. Stat. § 15A-1444, and defendant is not entitled to appellate review as a matter of right. When a defendant pleads guilty and fails to raise issues within this limited appeal of right, his appeal must be dismissed. See State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998). Accordingly, we dismiss defendant's appeal.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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