STATE OF NORTH CAROLINA
v. Nash County
No. 02 CRS 50991
TERRY THOMAS KEY,
Attorney General Roy Cooper, by Solicitor General Christopher
G. Browning, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine J. Allen, for defendant-appellant.
On 9 September 2002, a grand jury in Nash County indicted
defendant for embezzlement in 02 CRS 50991. Defendant moved to
dismiss the indictment based on asserted violations of the
Interstate Agreement on Detainers Act (I.A.D.A.), N.C. Gen. Stat.
§ 15A-761, Art. V(c) (2004), and his Sixth Amendment right to a
speedy trial. Following a hearing on 13 and 14 November 2003, the
trial court denied defendant's motion. On 13 January 2004,
defendant entered a guilty plea to three counts of embezzlement,
including the count alleged in 02 CRS 50991. Consistent with the
terms of defendant's plea agreement, the trial court sentenced himto consecutive presumptive terms of eight to ten months'
Defendant gave notice of appeal in open court from the judgment in 02 CRS 50991, but did not appeal his remaining convictions. Thereafter, on 23 January 2004, defendant filed a pro se motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A- 1414(b) (2004), challenging, inter alia, the legality of his extradition and requesting the appointment of counsel familiar with the Interstate Agreement on Detainer's Act (I.A.D.A.). He filed a pro se amendment to his motion on 10 June 2004, setting forth in greater detail his argument regarding the violation of his rights under the I.A.D.A. The trial court held a hearing on defendant's motion for appropriate relief on 21 June 2004, and denied it by order entered 16 July 2004.
In his sole argument on appeal, defendant avers the trial court erred by refusing to dismiss the indictment in 02 CRS 50991 based on the State's failure to bring him to trial within 180 days of his demand for final disposition of the charge under the I.A.D.A. See N.C. Gen. Stat. § 15A-761, Art. V(c). For the reasons discussed below, we hold this issue is not properly before this Court for review, and we dismiss the appeal.
Although defendant gave timely notice of appeal from the judgment entered in 02 CRS 50991, the scope of direct appeal following a guilty plea is limited to certain sentencing issues set forth in N.C. Gen. Stat. § 15A-1444(a1), (a2) (2004), the denial of a motion to withdraw his plea under N.C. Gen. Stat. § 15A-1444(e),or the denial of a motion to suppress under N.C. Gen. Stat. § 15A- 979(b) (2004). Defendant does not challenge the denial of either a motion to suppress or a motion to withdraw his plea; nor does he assert any sentencing error by the trial court. See N.C. Gen. Stat. §§ 15A-979(b), 15A-1444(a1), (a2), (e) (2004). Inasmuch as defendant seeks to raise only an issue lying outside the scope of his statutory appeal of right from his guilty plea, his appeal from the judgment must be dismissed. See State v. Jamerson, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547 (2003). This Court may not expand the limited scope of his direct appeal by issuance of a writ of certiorari. See State v. Dickson, 151 N.C. App. 136, 138, 564 S.E.2d 640, 640-641 (2002) (citing N.C.R. App. P. 21(a)); State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
In his brief to this Court defendant also asserts a right of appeal from the 16 July 2004 order denying his motion for appropriate relief. He correctly cites N.C. Gen. Stat. § 15A- 1422(b) (2004), as providing a right of appeal from an order denying a motion for appropriate relief filed under N.C. Gen. Stat. § 15A-1414. In order to perfect an appeal under N.C. Gen. Stat. § 15A-1422(b), however, a defendant must file notice of appeal from the order within the time[ and] in the manner . . . provided in the rules of appellate procedure. N.C. Gen. Stat. § 15A-1448(b) (2004). The provisions of N.C.R. App. P. 4(a)(2) and N.C. Gen. Stat. § 15A-1448(a)(2), (b) require notice of appeal to be filed within fourteen days after entry of the order denying thedefendant's motion for appropriate relief.
The record on appeal contains no evidence that defendant filed timely notice of appeal from the 16 July 2004 order denying his motion for appropriate relief. Without a timely notice of appeal in the record before this Court, we must dismiss the appeal for lack of jurisdiction. Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991). We further decline defendant's request to review the denial of his motion by writ of certiorari. Although this Court has the authority to issue a writ of certiorari where a defendant's right to prosecute an appeal has been lost by failure to take timely action N.C.R. App. P. 21(a), defendant did not file a formal petition for writ of certiorari. Moreover, he has offered no explanation for his failure to file timely notice of appeal. Finally, we note that defendant's guilty plea in 02 CRS 50991 waived any procedural irregularities preceding his plea. See State v. Reynolds, 298 N.C. 380, 394-95, 259 S.E.2d 843, 852 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980); State v. Daughtry, 236 N.C. 316, 319, 72 S.E.2d 658, 660 (1952); see also State v. Stokes, 274 N.C. 409, 412, 163 S.E.2d 770, 773 (1968) (holding that guilty plea waives all defenses other than that the indictment charges no offense).
The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
Dismissed. Judges MCGEE and LEVINSON concur.
Report per Rule 30(e).
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