State v Anderson, (04-1547) 08/02/2005

On writ of certiorari to review judgment entered 7 August 2002 by Judge Mark E. Klass in Iredell County Superior Court. Heard in the Court of Appeals 18 July 2005.

Attorney General Roy Cooper, by Assistant Attorney General Kelly L. Sandling, for the State.

Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.

MARTIN, Chief Judge.

    Defendant Bonita Sue Anderson was convicted by jury verdict of conspiracy to traffic more than four grams of opium/heroin. The trial court sentenced defendant pursuant to N.C. Gen. Stat. § 90- 95(h)(4) to a mandatory sentence of 70-84 months imprisonment, and imposed a fine of $50,000. By order entered 25 July 2003, this Court allowed defendant's petition for writ of certiorari for the purpose of reviewing the trial court's 7 August 2002 judgment and commitment.
    Counsel retained to represent defendant has filed an Anders brief in which counsel states, “After due inquiry, and seriousconsideration of the Transcript and Record, the limited scope for which this appeal was allowed to go forward, and relevant law, counsel has been unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.” Counsel, therefore, asks that this Court conduct its own review of the record for possible prejudicial error. To fulfill his obligations under Anders, counsel refers the Court to two issues in particular: (1) whether the trial court properly calculated defendant's prior record level; and (2) whether the trial court properly sentenced defendant for the offense convicted. In addition, acknowledging defendant's limited right of appeal under N.C. Gen. Stat. § 15A- 1444(a1), counsel asks that the Court treat this brief as a petition for writ of certiorari to review the additional issue of “whether the court should have found mitigating factors based on the evidence and whether the sentence imposed is supported by the evidence.” See N.C. Gen. Stat. § 15A-1444(a1)(2003)(providing that a defendant sentenced within the presumptive range of sentences is not entitled to appeal the issue of whether his/her sentence is supported by the evidence).
    Counsel has submitted documentation to the Court showing that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of her right to file written arguments with this Court and providing her with the documents necessary for her to do so. Defendant has submitted a pro sefiling in which she argues that she has been sentenced to an inordinate amount of time in prison when compared to others convicted of the same offense. She calls to the Court's attention her completion of DART, her regular attendance at Narcotics Anonymous and Alcoholics Anonymous meetings while incarcerated, and the completion of other behavior modifying courses since her conviction. She asks for the commutation of her sentence.
    Regarding those issues to which counsel referred the Court, we note that since defendant was sentenced pursuant to a mandatory sentence for drug trafficking four or more grams, but less than fourteen grams of opium/heroin under N.C. Gen. Stat. § 90- 95(h)(4)(a), defendant's prior record level was irrelevant and the court had no discretion in sentencing defendant under the subject statute. Further, to the extent that defendant seeks review of whether the trial court erred in failing to make mitigating findings by writ of certiorari, this issue does not fall within any of the enumerated circumstances of N.C.R. App. P. 21(a)(1), wherein the writ is appropriately issued. See State v. Nance, 155 N.C. App. 773, 574 S.E.2d 692 (2003)(providing that while N.C. Gen. Stat. 15A-1444(e) “does provide that . . . a defendant may petition the appellate division for review by writ of certiorari,” this Court is limited by N.C.R. App. P. 21, as to the circumstances under which the writ may be issued); State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002)(noting that where there is a conflict between the General Statues and Appellate Rules, the Appellate Rules will prevail, and therefore, the Court was withoutauthority to issue a writ of certiorari to review matter outside of those enumerated in N.C.R. App. P. 21(a)(1), as suggested in N.C. Gen. Stat. 15A-1444(e)).
    Having reviewed the record proper, noting the limitations of N.C. Gen. Stat. 15A-1444(a1), we conclude that there are no errors in defendant's sentence. In sum, we discern no issues of arguable merit on this record, and conclude that the appeal is wholly frivolous.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e)

*** Converted from WordPerfect ***