Appeal by defendant from judgment ordered on 09 September 2005
and entered 16 September 2005 by Judge Richard D. Boner in
Mecklenberg County Superior Court. Heard in the Court of Appeals
18 September 2006.
Peter Wood, for Defendant-Appellant.
Roy A. Cooper, III, Attorney General, by Christopher W.
Brooks, Assistant Attorney General, for the State.
The State moved to dismiss this appeal on 31 January 2006.
Defendant timely responded and petitioned for writ of certiorari.
For the reasons set forth below, we grant the State's motion to
dismiss and deny defendant's petition for writ of certiorari.
On 14 October 2003, defendant was convicted of Assault with a
Deadly Weapon with Intent to Kill Inflicting Serious Injury in
Mecklenburg County Superior Court. The Honorable Marcus L. Johnson
sentenced defendant to a term of imprisonment in the aggravated
range. Defendant appealed and this Court affirmed the conviction
but remanded for resentencing, holding that the trial court erred
in finding an aggravating factor. At the resentencing hearing, the Honorable Richard Boner
sentenced defendant to a term of imprisonment within the
presumptive range. During the hearing, defendant requested new
counsel. Judge Boner denied this request. Additionally, the tape
recording of the hearing inadvertently stopped for a brief period
of time, rendering the transcript incomplete. Defendant assigns
as error the denial of his request for new counsel, the failure of
the trial court to conduct a hearing regarding his request for new
counsel, and the failure of the trial court to provide a complete
In North Carolina, a defendant may appeal a conviction as a
matter of right only by statute. State v. Shoff
, 118 N.C. App.
724, 725, 456 S.E.2d 875, appeal dismissed
, 340 N.C. 572, 460
S.E.2d 328, aff'd
, 342 N.C. 638, 466 S.E.2d 277 (1995) (citing
Abney v. United States
, 431 U.S. 651, 656, 52 L. Ed. 2d 651, 658
(1977)). The relevant statute in North Carolina states:
[a] defendant who has been found guilty . . .
is entitled to appeal as a matter of right
issue of 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. Otherwise, the defendant is not
entitled to appeal this issue as a matter of
right but may petition the appellate division
for review of this issue by writ of
N.C. Gen. Stat. § 15A-1444(a1) (2003) (emphasis added).
This court has already affirmed defendant's conviction. State
, 169 N.C. App. 390, 610 S.E.2d 433 (2005). Defendantwas resentenced in the presumptive range. Defendant has no appeal
as a matter of right and we decline to grant defendant's petition
for writ of certiorari.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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