An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1550


Filed: 19 July 2005


         v.                    Yadkin County
                            No.    04 CRS 00145
TIMOTHY MICHAEL HAYES,                03 CRS 51098, 51101
        Defendant.                03 CRS 51104, 51274-75
                                03 CRS 51278, 51280

    Appeal by defendant from judgment entered 9 June 2004 by Judge Richard L. Doughton in the Superior Court in Yadkin County. Heard in the Court of Appeals on 20 June 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.

    Allen W. Boyer, for defendant-appellant.

    HUDSON, Judge.

    Defendant pled guilty to seven counts each of felonious breaking and entering and larceny and to habitual felon status, under a written plea agreement providing as follows:
        Upon the defendant[']s pleas of guilty to all charged felony breaking and/or entering and larcenies and upon the defendant[']s plea of guilty to habitual felon status all charges will be consolidated for judgment into the habitual felon charge and the defendant will be sentenced in the mitigated range.
In advising defendant of the consequences of his plea pursuant to N.C. Gen. Stat. § 15A-1022(a) (2004), the trial court advised him of the minimum and maximum possible sentences authorized for anoffense committed as an habitual felon, as follows:
        Q. [Y]ou are pleading guilty to the fact that you are a[n] habitual felon and that you have habitual felon status which would expose you to a Class C felony of 261 months . . . and a mandatory minimum sentence of 44 months in prison. Do you understand that?

        A. Yes, sir.

Defendant affirmed to the court that his transcript of plea contained his entire plea agreement, that he had no questions regarding its terms, and that he entered his plea freely and understandingly.
    At sentencing, counsel acknowledged defendant's prior record level of IV and urged the court to find defendant's decision to plead guilty a mitigating factor. Defense counsel then made the following request as to sentence:
        Your Honor does have some discretion, substantial discretion in sentencing him in the mitigated range. We would ask the Court to consider [that] his record has gotten bumped up to habitual felon status. His record got him up to Level 4. We ask the Court to consider the fact that there are no violent felonies on there. . . . We ask the Court to consider the lower end of the mitigated range.

In accordance with the terms of the plea agreement, the trial court consolidated defendant's offenses for judgment and sentenced him within the applicable mitigated range to a term of 107 to 138 months' imprisonment. Defendant filed timely notice of appeal.
    On appeal, defendant claims the trial court erred under N.C. Gen. Stat. § 15A-1022(a)(6) (2004), by advising him that the offenses to which he pled guilty carried “a mandatory minimumsentence of 44 months in prison.” He argues that the court should have advised him that his minimum sentence as an habitual felon would be between 80 and 107 months, in light of his prior record level of IV. By “[m]isinforming” him as to the sentence to which he was agreeing, defendant avers, the trial court undermined the validity of his plea.
    The State moves to dismiss defendant's appeal on the grounds that (1) the issue raised by defendant does not lie within his appeal of right under N.C. Gen. Stat. § 15A-1444(a1), (a2) (2004), and (2) defendant has not filed a petition for writ of certiorari to review his claim, as required by N.C. Gen. Stat. § 15A-1444(e). See State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987). Defendant has not responded to the State's motion.
    As this Court has noted, “a challenge to the procedures followed in accepting a guilty plea does not fall within the scope of N.C. Gen. Stat. § 15A-1444 (2003), specifying the grounds giving rise to an appeal as of right.” State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004) (citing State v. Bolinger, 320 N.C. 596, 601-602, 359 S.E.2d 459, 462 (1987)). Because defendant has raised no issue within his limited appeal of right, his appeal is subject to dismissal for lack of subject matter jurisdiction. See State v. Absher, 329 N.C. 264, 265, 404 S.E.2d 848, 849 (1991). However, this Court has recently interpreted N.C. Gen. Stat. § 15A- 1027 (2004), to allow a defendant to petition this Court for a writ of certiorari during the pendency of his appeal, in order to challenge the procedures employed by the trial court in acceptinga guilty plea under N.C. Gen. Stat. § 15A-1022. State v. Carter, __ N.C. App. __, __, 605 S.E.2d 676, 678 (2004) (citing Rhodes, at 193, 592 S.E.2d at 732). Although defendant did not file a petition for writ of certiorari in this cause, we elect to treat defendant's filings as a petition for writ of certiorari, and to review his claim pursuant to our discretionary authority. Rhodes, 163 N.C. App. at 193, 592 S.E.2d at 732 (citing Bolinger, 320 N.C. at 601-602, 359 S.E.2d at 462). Thus, we deny the State's motion to dismiss.
    Before accepting a defendant's guilty plea, N.C. Gen. Stat. § 15A-1022(a)(6) requires the trial court to “[i]nform[] him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced . . . and of the mandatory minimum sentence, if any, on the charge[.]” Here, defendant's guilty plea to habitual felon status mandated that he be sentenced as a Class C felon. Under N.C. Gen. Stat. § 15A- 1340.17(c), the lowest minimum sentence allowed for a Class C felony is 44 months. Although the statutes proscribing defendant's substantive offenses of breaking and entering and larceny do not prescribe mandatory minimum sentences, see N.C. Gen. Stat. § 14-54, 14-72 (2004), the trial court accurately informed defendant that the lowest possible minimum sentence for an offense committed as an habitual felon was 44 months.
    Contrary to defendant's assertion, nothing in N.C. Gen. Stat. § 15A-1022(a)(6) requires a trial court to tailor the information regarding the maximum and minimum possible sentences for an offenseby inquiring into each defendant's projected prior record level. Cf. State v. Byrd, 164 N.C. App. 522, 531, 596 S.E.2d 860, 865-66 (2004) (“'[T]he statutory maximum sentence for a criminal offense in North Carolina is that which results from . . . findings that the defendant falls into the highest criminal history category for the applicable class offense and that the offense was aggravated[.]”) (quoting State v. Lucas, 353 N.C. 568, 596, 548 S.E.2d 712, 731 (2001)). Such a requirement would conflict with the procedural framework established for guilty pleas under Article 58, since at the time of the plea colloquy contemplated by N.C. Gen. Stat. § 15A-1022(a), the defendant's prior record level is indeterminate. We note that defendant's plea agreement contained no stipulation related to prior record level and thus provided the trial court with no basis to make the calculation now sought by defendant.
    We also reject defendant's assertion that the court's reference to a 44-month “mandatory minimum” sentence conveyed “[t]o anyone educated in the English language” that he would receive this sentence. The legal term of art “mandatory minimum” denotes the absolute statutory floor below which a court may not go in sentencing a defendant. Even where a criminal statute prescribes a mandatory minimum sentence for a particular crime, the trial court is free to impose a minimum sentence in excess of the mandatory minimum. See, e.g., State v. Richardson, 61 N.C. App. 284, 287, 289, 300 S.E.2d 826, 828, 829 (1983). Defendant's suggestion that his sentence was “not consistent with an informedchoice on his part” finds no support in the record. Defendant affirmed to the trial court his plea agreement provided only for sentencing “in the mitigated range.” His counsel acknowledged the trial court's “substantial discretion” at sentencing and asked it “to consider the lower end of the mitigated range.” Finally, defendant has not moved to withdraw his plea.
    Because we find the trial court fully complied with the requirements of N.C. Gen. Stat. § 15A-1022(a)(6), we overrule defendant's assignment of error and affirm the judgment.     Motion denied; judgment affirmed.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

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