Opinion
No. COA02-999
Filed 1 April 2003 This case not for publication
Appeal by defendant from judgment entered 3 June 2002 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 24 March 2003.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William P. Hart and Assistant Attorney General J. Philip Allen, for the State. Peter Wood for defendant-appellant.
Brunswick County No. 01 CRS 53723.
James Olin Barrett ("defendant") entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162 (1970), to the charge of robbery with a dangerous weapon. The trial court sentenced him to 85 to 111 months imprisonment.
Defendant claims on appeal that the trial court erred in accepting his Alford plea, arguing that his plea was not voluntary, given his dissatisfaction with his trial counsel's advice. The State has filed a motion to dismiss the appeal on the ground that it raises issues outside of defendant's appeal of right under N.C. Gen. Stat. § 15A-1444(e) (2001). We agree. "[D]efendant has made no motion to withdraw the plea. Thus, according to N.C.G.S. § 15A-1444 defendant is not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea." State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987).
In response to the State's motion to dismiss, defendant asks this Court to treat his appellant's brief as a "defacto petition for a writ of certiorari[.]" We have recently held that N.C.R. App. P. 21(a) precludes issuance of a writ of certiorari for this purpose, despite statutory language to the contrary:
While N.C.G.S. § 15A-1444(e) allows a defendant to petition for writ of certiorari after entering a guilty plea, this Court is limited to issuing a writ of certiorari "in appropriate circumstances . . . to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief."
State v. Pimental, ___ N.C. App. ___, ___, 568 S.E.2d 867, 872 (2002) (quoting N.C.R. App. P. 21(a)). Here, as in Pimental, defendant has not lost his right of appeal by failing to take timely action; nor is he seeking review of a non-appealable interlocutory order or of an order denying a motion for appropriate relief. Therefore, as this Court is unable to grant a writ of certiorari in the case at bar, and defendant is without a right to appeal, the State's motion to dismiss the appeal is granted, the petition for the writ of certiorari is denied, and defendant's appeal is dismissed. Id.
Motion allowed; appeal dismissed; petition denied.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).