State v Oliver, (04-1697) 08/16/2005

Appeal by defendant from judgment entered 7 July 2004 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 15 August 2005.

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

William D. Spence for defendant.

LEVINSON, Judge.

    Defendant entered a guilty plea to possession of cocaine with intent to sell or deliver and to habitual felon status. Upon his stipulation to 29 prior record points and a prior record level VI, the trial court sentenced defendant at the very bottom of the mitigated range to an active prison term of 101 to 131 months. See N.C.G.S. § 15A-1340.17(c), (e) (2003). Defendant filed timely notice of appeal from the judgment and has sought certiorari review of the first issue discussed below. The State has since moved to dismiss the appeal.
    By his first two assignments of error on appeal, defendant challenges the evidence supporting the trial court's finding of afactual basis for his guilty plea.
    Defendant asks this Court to review the factual basis for his guilty plea to possession of cocaine with intent to sell or deliver by writ of certiorari. One who pleads guilty may file a petition for writ of certiorari during the pendency of his appeal in order to challenge the trial court's non-compliance with the procedures set forth in N.C.G.S. § 15A-1022(c) (2003). See State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004) (citing State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987), and N.C.G.S. § 15A-1027 (2003)).
    G.S. § 15A-1022(c) provides:
        The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:
            (1) A statement of the facts by the prosecutor.
            (2) A written statement of the defendant.
            (3) An examination of the presentence report.
            (4) Sworn testimony, which may include reliable hearsay.
            (5) A statement of facts by the defense counsel.

    The transcript of defendant's plea hearing reflects that, in addition to an adequate statement by the prosecutor concerning the facts giving rise to the substantive offense, defendant waived the presentation of formal evidence by the State and specifically stipulated to a factual basis for his plea. We conclude that the trial court fully complied with the procedural requirements of G.S. § 15A-1022(c) by finding a factual basis for the guilty plea.     Defendant next assigns error to his prior record level calculation. Having stipulated during sentencing to both 29 prior record points and a prior record level VI, however, defendant waived the right to appeal his prior record level under N.C.G.S. § 15A-1444(a2)(1) (2003). See State v. Hamby, 129 N.C. App. 366, 369-70, 499 S.E.2d 195, 198 (1998).
    We allow defendant's motion for certiorari as to the issue concerning compliance with G.S. § 15A-1022 and therefore deny the State's motion to dismiss this appeal. In addition, we dismiss the assignment of error concerning defendant's prior record level calculation.
    Affirmed.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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