Summary
In Stanley, defendant argued the indictment charging him with habitual impaired driving was fatally defective because two of the three prior convictions had been obtained during a single day of court.
Summary of this case from State v. MayoOpinion
No. COA10-554
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgment entered 8 December 2009 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 21 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Dal F. Wooten for defendant-appellant.
Lenoir County No. 09 CRS 50436.
Defendant James Ryan Stanley appeals from a judgment sentencing him to a minimum term of 18 months and a maximum term of 22 months imprisonment in the custody of the North Carolina Department of Correction based upon his plea of guilty to habitual impaired driving. On appeal, Defendant challenges his conviction on the grounds that the trial court lacked jurisdiction to accept his guilty plea and sentence him as felon on the grounds that he did not have the three prior impaired driving convictions necessary to support a conviction for habitual impaired driving in violation of N.C. Gen. Stat. § 20-138.5. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is not entitled to appellate review of the trial court's judgment.
I. Factual Background
On 8 February 2008, Defendant was cited for driving while impaired. On 4 May 2009, the Lenoir County grand jury returned bills of indictment charging Defendant with habitual impaired driving, driving while license revoked, driving left of center, possession of marijuana, and possession of drug paraphernalia. On 1 September 2009, Defendant filed a motion to dismiss the habitual impaired driving and related misdemeanor charges on the grounds that two of his three prior impaired driving convictions had occurred at the 5 March 2008 session of the Lenoir County District Court and could not both be utilized for the purpose of enhancing the seriousness of his offense. In reliance on N.C. Gen. Stat. § 15A-1340.14 (2009), Defendant argued that, because two of the three prior convictions described in his habitual impaired driving indictment had been obtained during a single day of court, only one of them could be "used for the purposes of determining Defendant's prior record level under N.C.G.S. § 20-138.5." As a result, Defendant argued that the indictment charging him with habitual impaired driving was fatally defective, depriving the trial court of jurisdiction to hear any of the driving-related charges for which he had been indicted.
After the trial court denied Defendant's dismissal motion on 8 December 2009, Defendant entered a plea of guilty to habitual impaired driving and felonious possession of stolen property pursuant to a plea agreement under which Defendant reserved the right to appeal the trial court's denial of his motion to dismiss the habitual impaired driving charge; the State dismissed certain other charges that were pending against Defendant, including both the misdemeanor charges related to his habitual impaired driving charge and unrelated felonious larceny, first degree trespass, injury to real property, and misdemeanor possession of marijuana charges; and the State expressed its lack of objection to any decision by the trial court to consolidate the habitual impaired driving and possession of stolen property charges for judgment. After determining that Defendant had accumulated one prior record point and should be sentenced as a Level II offender in connection with his habitual impaired driving conviction and that he had accumulated four prior record points and should be sentenced as a Level II offender in connection with his possession of stolen goods conviction, the trial court ordered that Defendant be imprisoned for a minimum term of 18 months and a maximum term of 22 months in the custody of the North Carolina Department of Correction based on his habitual impaired driving conviction and that Defendant be imprisoned for a minimum term of 8 months and a maximum term of 10 months in the custody of the North Carolina Department of Correction based upon his possession of stolen property conviction, with the two sentences to be served concurrently. Defendant noted an appeal to this Court from the trial court's judgment in the habitual impaired driving case.
II. Legal Analysis
On appeal, Defendant argues that the trial court erred by accepting his plea of guilty to habitual impaired driving and sentencing him as a felon rather than a misdemeanant on the grounds that the underlying indictment was fatally defective. A thorough analysis of Defendant's argument on appeal demonstrates that he is not entitled to appellate review from the trial court's habitual impaired driving judgment based on this contention.
Although Defendant has advanced two separate arguments in his brief, they ultimately rest on the same contention and will be treated as one, rather than two, issue for purposes of this opinion.
"In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of state statute." State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404 (1995) (citing N.C. Gen. Stat. § 15A-1444 and State v. Blades, 209 N.C. 56, 57, 182 S.E. 714, 714 (1935)), disc. review denied, 343 N.C. 126, 468 S.E.2d 790 (1996). According to N.C. Gen. Stat. § 15A-1444:
(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the 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 certiorari.
(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:
(1) 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;
(2) Contains a type of sentence disposition that is not authorized by [N.C. Gen. Stat. § ] 15A-1340.17 or [N.C. Gen. Stat. § ] 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
(3) Contains a term of imprisonment that is for a duration not authorized by [N.C. Gen. Stat. § ] 15A-1340.17 or [N.C. Gen. Stat. § ] 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
(e) Except as provided in subsections (a1) and (a2) of this section and [N.C. Gen. Stat. § ] 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.
N.C. Gen. Stat. § 15A-979(b) provides that "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty."
Thus, "a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea." State v. Corbett, 191 N.C. App. 1, 3, 661 S.E.2d 759, 761 (quoting State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002)), aff'd per curiam, 362 N.C. 672, 669 S.E.2d 323 (2008).
As Defendant candidly concedes in response to the State's motion to dismiss his appeal, his reservation of the right to appeal the trial court's denial of his appeal is ineffective given the total absence of any statutory provision authorizing him to preserve his right to appeal utilizing such a procedure. In addition, Defendant is not seeking to challenge the denial of a suppression motion. In view of the fact that Defendant pled guilty to habitual impaired driving and was sentenced in the presumptive range, Defendant has no right of appeal pursuant to N.C. Gen. Stat. § 15A-1444(a1). In addition, since Defendant's challenge to the validity of his habitual impaired driving indictment is not included in the list of issues specified in N.C. Gen. Stat. § 15A-1444(a2), he has no right of appeal under that statutory provision either. See State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004) (citing State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987)). Finally, the record contains no indication that Defendant ever sought to withdraw his guilty plea. Thus, since Defendant has no statutory right to appeal the trial court's decision to accept his guilty plea to habitual impaired driving and sentence him as a felon rather than a misdemeanant, the State's motion to dismiss Defendant's appeal should be, and hereby is, allowed.
Although Defendant's challenge to the validity of the indictment returned against him in this case amounts to a challenge to the trial court's jurisdiction over the subject matter of this case and although, as a general proposition, a challenge to the court's jurisdiction over the subject matter may be raised at any time, State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419, disc. review improvidently allowed, 349 N.C. 289, 507 S.E.2d 38 (1998), that argument does not suffice to support a decision to deny the State's dismissal motion in this case. Despite the fact that "it is true that a defendant may challenge the jurisdiction of a trial court, such challenge may be made in the appellate division only if and when the case is properly pending before the appellate division." State v. Absher, 329 N.C. 264, 265 n. 1, 404 S.E.2d 848, 849 n. 1 (1991). Since Defendant does not have an appeal as of right from the trial court's judgment in this instance, the fact that the substantive issue he wishes to raise before this Court is jurisdictional in nature is of no avail to him.
Alternatively, Defendant seeks review through the issuance of a writ of certiorari, a step which is authorized by N.C. Gen. Stat. § 15A-1444(e). As a general proposition, "[ c] ertiorari is a discretionary writ, to be issued only for good and sufficient cause shown." State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citing Womble v. Moncure Gin Mill Co., 194 N.C. 577, 579, 140 S.E.2d 230, 231 (1927)), cert. denied, 362 U.S. 917, 4 L. Ed. 2d 738, 80 S. Ct. 670 (1960); see also State v. McCoy, 171 N.C. 636, 639, 615 S.E.2d 319, 321 (stating that "we further decline to exercise our discretion and deny defendant's purported petition for writ of certiorari"), app. dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). In view of the fact that this Court has already addressed and resolved the issue that Defendant seeks to raise before us on appeal in a manner contrary to his position, State v. Allen, 164 N.C. App. 665, 673, 596 S.E.2d 261, 265 (2004) (holding that two driving while impaired convictions that were consolidated for judgment constituted "separate offenses under N.C. Gen. Stat. § 20-138.5"), we conclude that Defendant's challenge to the trial court's judgment lacks arguable merit and that, in the exercise of our discretion, his certiorari petition should be denied. Thus, we conclude that Defendant is not entitled to appellate relief from the trial court's judgment, that his appeal should be dismissed, and that his petition for certiorari denied.
The fact that the convictions which Defendant challenges in this case were obtained separately, instead of consolidated for judgment as was the case in Allen, makes the claim that he seeks to advance on appeal in this case weaker than the one before the Court in Allen.
APPEAL DISMISSED; PETITION FOR CERTIORARI DENIED.
Judges STEPHENS and BEASLEY concur.
Reports Per Rule 30(e).