An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-599


Filed: 15 November 2005


    v.                        McDowell County
                            No. 04 CRS 51249

    Appeal by defendant from judgment entered 8 December 2004 by Judge Forrest Donald Bridges in McDowell County Superior Court. Heard in the Court of Appeals 10 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State.

    William D. Auman, for defendant-appellant.

    TYSON, Judge.

    Terrance L. James (“defendant”) appeals from judgment entered sentencing him to twenty to twenty-four months for malicious conduct by a prisoner. We dismiss defendant's appeal.

I. Background
    Defendant pled guilty to one count of malicious conduct by a prisoner after the court dismissed a second such count at the conclusion of the State's evidence at trial. The court sentenced defendant to an active prison term within the presumptive range of twenty to twenty-four months consecutive to any sentences he was obligated to serve. Defendant appeals.
II. Issues
    The issues on appeal are whether the trial court erred by: (1) denying defendant's motion to continue because it violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 23 of the North Carolina Constitution; and (2) sentencing defendant to a consecutive sentence in response to the State's request in violation of his constitutional rights to due process.
III. Limited Right of Direct Appeal
    Defendant presents two assignments of error on appeal. He first claims that the trial court infringed his constitutional rights by denying his pretrial motion for a continuance. He further avers that the court violated the holding in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), by imposing an active, consecutive prison sentence after the prosecutor represented, without proof or submission to a jury, that defendant had an additional criminal charge pending against him. See generally State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005) (applying Blakely to Structured Sentencing Act). Because neither of these issues are within defendant's limited statutory appeal of right as defined by N.C. Gen. Stat. § 15A-1444, we dismiss the appeal.
    By virtue of his guilty plea, defendant's right of direct appeal is confined to the following issues:
        (1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen. Stat. § 15A-1340.14 . . .; (3) whether the sentence constitutes a type of sentence not authorizedby N.C. Gen. Stat. § 15A-1340.17 . . . for the defendant's class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant's motion to suppress; and (5) whether the trial court improperly denied the defendant's motion to withdraw his guilty plea.

State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004) (citing State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003)).
    As neither of defendant's assignments of error concern an issue within this limited appeal of right, they are not properly before this Court for review. By pleading guilty, defendant waived any objection to the denial of his motion to continue. See State v. Caldwell, 269 N.C. 521, 526, 153 S.E.2d 34, 37-38 (1967) (noting plea waives “the right to trial and the incidents thereof and the constitutional guarantees with respect to the conduct of criminal prosecutions”). This issue also does not fall within his limited appeal of right under N.C. Gen. Stat. § 15A-1444(a1) and (a2).
    The decision to impose a consecutive sentence is a matter left to the sound discretion of the trial court and is not subject to appeal following a guilty plea. See N.C. Gen. Stat. § 15A-1354(a) (2003); N.C. Gen. Stat. § 15A-1444(a1)-(a2) (2003).
    The imposition of a consecutive sentence neither “increases the penalty for a crime beyond the prescribed statutory maximum” nor requires the finding of any additional fact beyond the bare elements of the offense. Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)). Therefore, the holding in Blakely isinapposite.
III. Conclusion
    Defendant's sentence falls within the applicable presumptive range for his class of offense and prior record level. Inasmuch as he has not challenged his prior record level calculation, he has failed to present to this Court any ground for relief cognizable on direct appeal. Jamerson, 161 N.C. App. at 530, 588 S.E.2d at 547. Defendant's appeal is dismissed.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***