State v. Hamby
Decision Date | 30 April 1998 |
Docket Number | No. 97-1263.,97-1263. |
Court | North Carolina Court of Appeals |
Parties | STATE of North Carolina v. Shiree HAMBY. |
Attorney General Michael F. Easley by Associate Attorney General Tina A. Krasner, for the State.
Robert J. Jacobs, Graham, for defendant-appellant.
Defendant's counsel has noted no assignments of error in the record and brings forward no issues in the brief. He states that he "is unable to find a statutory basis for the appeal," and asks this Court to review the record for any errors.
By letter dated 13 September 1997, defendant's counsel informed defendant that he had "not been able to find a basis" for her appeal and that defendant could file her own "brief" in this Court if she so desired. Copies of the transcript and the proposed record on appeal were sent to defendant. Defendant has filed no arguments in this Court.
We hold that defendant's counsel has fully complied with the holdings in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,reh'g denied,388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). Pursuant to Anders and Kinch, we must determine from a full examination of all the proceedings whether the appeal is wholly frivolous. However, we first address whether defendant was entitled to appellate review as a matter of right.
N.C.Gen.Stat. § 15A-1444(e) (Cum.Supp. 1996), in effect at the time the offense in this case was committed, provided that a defendant is not entitled to appellate review as a matter of right when he or she has pled guilty to a criminal charge in superior court except in limited circumstances. Those circumstances include when the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record level and class of offense, see N.C.Gen.Stat. § 15A-1444(a1) (Cum.Supp. 1996); when a motion to suppress evidence has been denied prior to entry of the guilty plea, see N.C.Gen.Stat. § 15A-979(b) (1988); or when a motion to withdraw a guilty plea has been denied.
In this case, defendant pled guilty, and the trial court sentenced her to a minimum sentence of imprisonment within the presumptive range for her prior record level and class of offense. The record fails to show that the trial court denied a motion to suppress evidence prior to entry of the guilty plea or that the trial court denied a motion to withdraw the guilty plea. Pursuant to N.C.Gen.Stat. § 15A-1444(e) (Cum.Supp. 1996) it therefore appears defendant had no right to appeal. See State v. Williams, 116 N.C.App. 354, 447 S.E.2d 437
(, disc. review denied, )338 N.C. 523, 452 S.E.2d 823 (1994).
When the General Assembly enacted Structured Sentencing in 1993, it expanded a defendant's right to appeal when he has pled guilty by adding a new subsection. N.C.Gen. Stat. § 15A-1444(a2) (Cum.Supp.1996), in effect at the time the offense in this case was committed, provided as follows:
See also N.C.Gen.Stat. § 15A-1444(e) (1997) ( ).
A plain reading of this subsection indicates that the issues set out may be raised on appeal by any defendant who has pled guilty to a felony or misdemeanor in superior court. However, we believe the right to appeal granted by this subsection is not without limitations.
If a defendant who has pled guilty does not raise the specific issues enumerated in subsection (a2) and does not otherwise have a right to appeal, his appeal should be dismissed. See State v. Golden, 96 N.C.App. 249, 385 S.E.2d 346 (1989)
(. ) Furthermore, if during plea negotiations the defendant essentially stipulated to matters that moot the issues he could have raised under subsection (a2), his appeal should be...
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