STATE OF NORTH CAROLINA
v. Pitt County
Nos. 01 CRS 5620, 53242
JOHN EUGENE WARD
Attorney General Roy Cooper, by Assistant Attorney General
Brian C. Wilks, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
appellant.
MARTIN, Chief Judge.
On 16 April 2002, defendant pled guilty to three counts of
obtaining property by false pretenses and one count of habitual
felon status. Under the terms of his plea, defendant agreed to be
sentenced as a Class C (habitual) felon for one of his three
substantive felonies. See N.C. Gen. Stat. § 14-7.6 (2005). In the
corresponding judgment, the trial court sentenced defendant as an
habitual felon with a prior record level II to a presumptive prison
term of 90 to 117 months.
(See footnote 1)
By order entered 16 February 2005, weallowed defendant's petition for writ of certiorari to review the
judgment but further ordered that “[s]uch review shall be confined
to the issues within defendant's appeal of right under N.C. Gen.
Stat. § 15A-1444(a1), (a2), (2004).”
Defendant now argues that his “sentence was not supported by
the evidence presented at the sentencing hearing,” see N.C. Gen.
Stat. § 15A-1444(a1), because he “was not called upon to admit
[his] habitual felon status,” and did not stipulate to the three
prior felony convictions which were used to establish his status as
a habitual felon. In a related argument, defendant asserts that
his sentence of 90 to 117 months was not authorized for the Class
H felony of obtaining property by false pretenses, see N.C. Gen.
Stat. § 15A-1444(a2), inasmuch as he did not admit to habitual
felon status at the plea hearing.
To the extent defendant denies that he admitted his status as
a habitual felon as part of his guilty plea, the materials before
this Court directly contradict his claim. The transcript of
defendant's plea hearing reflects the following exchange between
defendant and the hearing judge:
THE COURT: . . . You are pleading guilty to
three counts of obtaining property by false
pretense, the false pretense charges being
Class H felonies and one of these will be
elevated to a habitual felon charge being a
Class C felony. Do you understand that? That
could expose you to 321 months in jail if you
got the maximum?
THE DEFENDANT: Yes, sir.
THE COURT: Do you now personally plead guilty
to these charges?
THE DEFENDANT: Yes, sir.
THE COURT: Are you in fact guilty?
THE DEFENDANT: Yes, sir.
Defendant's signed transcript of plea form lists his pleas of
guilty to three counts of obtaining property by false pretenses in
01 CRS 53242-44, and one count of habitual felon status in 01 CRS
5620. His plea agreement expressly provides that he would be
sentenced for one of his three substantive felonies “as a Class C
felon[] pursuant to G.S. 14-7[.]1, et. seq. _ Habitual Felon.”
To the extent defendant assigns error to the lack of evidence
supporting his guilty plea, this issue lies outside of his appeal
of right under N.C. Gen. Stat. § 15A-1444(a1) and (a2). Section
15A-1444(a1) allows a defendant who pleads guilty to appeal
“whether his or her sentence is supported by evidence introduced at
the trial and sentencing hearing only if the minimum sentence of
imprisonment does not fall within the presumptive range for the
defendant's prior record or conviction level and class of offense.”
Having received a presumptive sentence for a felony committed as a
habitual felon with a prior record level II, see N.C. Gen. Stat. §
15A-1340.17(c), (e) (2005), defendant has no right of appeal under
N.C. Gen. Stat. § 15A-1444(a1). Defendant does not contest the
evidence supporting his prior record level calculation, as
authorized under N.C. Gen. Stat. § 15A-1444(a2)(1). Because his
sentence is authorized for his class of offense and record level,
he has no ground for relief under N.C. Gen. Stat. § 15A-
1444(a2)(2)-(3). We note that defendant's counsel stipulated to the existence
of a factual basis for his guilty plea and agreed to allow the
prosecutor to present a factual statement in support thereof in
lieu of a formal proffer of evidence. See N.C. Gen. Stat. § 15A-
1022(c)(1) (2005). After describing the three occasions in which
defendant obtained or attempted to obtain money by pawning stolen
property, see N.C. Gen Stat. § 14-100 (2005), the prosecutor set
forth defendant's three prior felony convictions, as alleged in his
habitual felon indictment, as follows:
Judge, for the record the defendant has been
convicted of three felonies, prior felonies,
breaking and entering, which he . . .
committed October 4th of '89, convicted March
11, 1991 in Tyrrell County. July 25, 1995,
possession of cocaine and convicted January
25, of '96 in Tyrrell County. On October 3rd
of '88, he committed the offense of breaking
and entering, and convicted January 18th of
1989 in Tyrrell County.
By stipulating to the existence of a factual basis for his guilty
plea and offering no objection to the prosecutor's summary or the
trial court's finding of a factual basis, defendant waived
appellate review of this issue. See State v. Canady, 153 N.C. App.
455, 458, 570 S.E.2d 262, 264-65 (2002) (citation omitted).
Finally, inasmuch as the trial court did find a factual basis for
the plea as required by N.C. Gen. Stat. § 15A-1022(c), defendant
cannot show any procedural error by the court. See generally State
v. Rhodes, 163 N.C. App. 191, 193-94, 592 S.E.2d 731, 732-33 (2004)
(allowing a defendant to challenge procedural errors under Article
58 by petition for writ of certiorari, pursuant to N.C. Gen. Stat.
§ 15A-1027 (2005)) (citation omitted). The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C. R. App. P. 28(b)(6), we deem them abandoned.
Because defendant's claims do not fall within the scope of
review authorized by the writ of certiorari issued by this Court on
16 February 2005, we dismiss his appeal.
Dismissed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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