NO. COA04-1566

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

    Appeal by defendant from (1) judgments entered 2 April 2004, by Judge Orlando Hudson, and (2) a post-judgment order entered 5 October 2004 denying his “Motion to withdraw guilty plea”, by Judge Donald W. Stephens all entered in Wake County Superior Court. Heard in the Court of Appeals 13 September 2005.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Adrian M. Lapas for defendant.

LEVINSON, Judge.

    Judgments were entered 2 April 2004 consistent with defendant's guilty plea to various charges, including failure to register as a sex offender. Defendant did not take a timely appeal from these judgments, but has assigned error to the prior record level determination utilized by the superior court. In addition, defendant purports to take a direct appeal as a matter of right from an order of the superior court, entered 5 October 2004,denying a post-judgment motion.
    With respect to the judgments entered 2 April 2004, defendant argues the trial court erred in its calculation of defendant's prior record level. We treat defendant's appeal as a petition for a writ of certiorari, and grant the same. Defendant contends, and the State agrees, that insufficient evidence was presented to the trial court to show that defendant's prior out-of-state convictions were substantially similar to offenses in North Carolina for purposes of assigning prior record points. See N.C. Gen. Stat. . 15A-1340.14(e) (2003). After reviewing the record in this matter, we agree, and remand to the trial court for resentencing.
    Defendant argues next that the trial court erred by denying his “Motion to withdraw guilty plea.” Defendant contends that N.C. Gen. Stat. . 14-208.11 (2003) is unconstitutional as applied to out-of-state sex offenders who, like him, moved to North Carolina and lacked notice of a requirement to register. Defendant's argument is premised on this Court's opinion in State v. Bryant, 163 N.C. App. 478, 594 S.E.2d 202 (2004).
    Even assuming, arguendo, that defendant has a right of appeal from the order denying his “motion to withdraw guilty plea” entered after judgment, see State v. Handy, 326 N.C. 532, 391 S.E.2d 159 (1990), we observe that the North Carolina Supreme Court has reversed this Court's opinion in Bryant. See State v. Bryant, 359N.C. 554, 614 S.E.2d 479 (2005). Consequently, defendant's argument is without merit.
    Remanded for resentencing.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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