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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
STATE OF NORTH CAROLINA
v. Pitt County
No. 06 CRS 848
HEATHER DAWN SANDERS
Appeal by defendant from judgment entered 24 January 2006 by
Judge William C. Griffin, Jr., in Pitt County Superior Court.
Heard in the Court of Appeals 26 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Scott A. Conklin, for the State.
William D. Spence for defendant appellant.
Defendant Heather Dawn Sanders (defendant) was charged with
assault with a deadly weapon inflicting serious injury and driving
while impaired. Defendant and the State entered into a plea
agreement in which defendant agreed to plead guilty to misdemeanor
reckless driving and the State agreed to dismiss the charges of
felony assault and driving while impaired. On 24 January 2006,
defendant appeared with counsel before Judge William C. Griffin,
Jr., who reviewed the terms of the plea bargain with defendant.
The State then summarized the factual basis for the charges as
follows: Defendant was operating a motor vehicle on a public street
in Pitt County and crossed left of center and [defendant] hit avehicle that was being operated by Dustin Polk. Defendant lost a
leg as a result of the collision. Mr. Polk sustained broken bones
in his face and damage to his eye, which required several
reconstructive surgeries. The restitution worksheet submitted to
the court was for the amount of $70,000.00 based upon Mr. Polk's
medical summary and testimony from Mr. Polk's father.
Judge Griffin sentenced defendant to an active term of 45 days
in the Pitt County Jail, suspended the sentence and placed
defendant on supervised probation for 36 months. As a monetary
term of her probation, defendant was ordered to pay restitution in
the amount of $70,000.00. Defendant appeals.
In her sole assignment of error, defendant argues the trial
court erred in conditioning her probation on the payment of
$70,000.00 restitution by not considering her ability to pay the
restitution under N.C. Gen. Stat. §§ 15A-1340.36(a) and -1343(d).
The dispositive issue is whether this Court has the authority to
hear defendant's appeal given that she entered a guilty plea.
"In North Carolina, a defendant's right to appeal in a
criminal proceeding is purely a creation of state statute." State
153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc.
, 356 N.C. 442, 573 S.E.2d 163 (2002). Pursuant to
N.C. Gen. Stat. § 15A-1444, a defendant who pleads guilty may
appeal only 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 or the defendant's prior
conviction level under N.C. Gen. Stat.
§ 15A-1340.21; (3) whether the sentence
constitutes a type of sentence not authorized
by N.C. Gen. Stat. § 15A-1340.17 or
§ 15A-1340.23 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
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)). Defendant's appeal does not fit into any of
these five categories, and therefore, does not have an appeal of
right to this Court.
In the alternative to her appeal, defendant filed a petition
for writ of certiorari on 2 August 2006 asking this Court to review
her assignment of error. Although N.C. Gen. Stat. § 15A-1444(e)
provides for a defendant to seek appellate review by a petition for
writ of certiorari where a defendant does not have an appeal of
right, North Carolina Rules of Appellate Procedure limits our
ability to do so. Rule 21(a)(1) allows this Court to grant a
petition for writ of certiorari in the following situations: "(1)
defendant lost his right to appeal by failing to take timely
action; (2) the appeal is interlocutory; or (3) to review a trial
court's denial of a motion for appropriate relief." State v.
, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547 (2003)
(citing N.C. R. App. P. 21(a)(1)). Because defendant's case doesnot contain any of these circumstances, we do not have authority to
issue a writ of certiorari. Without an appeal of right or the
authority to grant certiorari, this Court may not consider
defendant's argument. Defendant may, however, file a motion for
appropriate relief with the superior court pursuant to N.C. Gen.
Stat. § 15A-1413 (2005). See Jamerson
, 161 N.C. App. at 530, 588
S.E.2d at 547. Accordingly, defendant's appeal is dismissed and
defendant's petition for writ of certiorari is denied.
Dismissed. Petition for writ of certiorari denied.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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