State v. Mayo

823 S.E.2d 656, 263 N.C. App. 546
CourtCourt of Appeals of North Carolina
DecidedJanuary 15, 2019
DocketCOA18-331
StatusPublished
Cited by10 cases

This text of 823 S.E.2d 656 (State v. Mayo) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mayo, 823 S.E.2d 656, 263 N.C. App. 546 (N.C. Ct. App. 2019).

Opinion

BERGER, Judge.

*546 On September 6, 2017, Michael Tyrone Mayo, Jr. ("Defendant") pleaded guilty to felony fleeing to elude arrest. Defendant was sentenced to an active term of seven to eighteen months in prison. On September 14, 2017, Defendant filed a written notice of appeal. Defendant filed a petition for writ of certiorari on May 2, 2018, seeking appellate review on the entry of a civil judgment against him for attorney's fees, and review pursuant to Anders v. California , 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967) and State v. Kinch , 314 N.C. 99 , 331 S.E.2d 665 (1985). We grant Defendant's petition for writ of certiorari, remand for hearing on the issue of attorney's fees, and dismiss the remainder of Defendant's appeal.

*547 Factual and Procedural Background

On June 26, 2017, Defendant was indicted for fleeing to elude arrest by motor vehicle and for resisting a public officer. Defendant pleaded guilty to felony fleeing to elude arrest on September 6, 2017. As part of the plea arrangement, other charges were dismissed. Defendant stipulated to a prior record level of II, and he was sentenced to an active term of seven to eighteen months imprisonment. He was also ordered to pay court costs in the amount of $1,572.50. Defendant filed a notice of appeal on September 14, 2017.

*658 On May 2, 2018, Defendant filed a petition for writ of certiorari alleging Defendant did not have proper notice and opportunity to be heard on the amount of attorney's fees and costs. In the same petition, Defendant argued in the alternative that this Court conduct an independent review of the record pursuant to Anders v. California and State v. Kinch . Defendant's counsel also filed a brief with this Court pursuant to Anders stating that he "has carefully reviewed the transcript, the superior court file, and relevant law," and was "unable to identify an issue with sufficient merit to support a meaningful argument for reversal of [Defendant]'s conviction."

Analysis

"[A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute." State v. Pimental , 153 N.C. App. 69 , 72, 568 S.E.2d 867 , 869 (2002). Section 15A-1444 of the North Carolina General Statutes provides that

(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:
*548 (1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21 ;
(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or
(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 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 G.S. 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. If an indigent defendant petitions the appellate division for a writ of certiorari, the presiding superior court judge may in his discretion order the preparation of the record and transcript of the proceedings at the expense of the State.

N.C. Gen. Stat. § 15A-1444 (a1), (a2), (e) (2017).

Defendant's right of appeal was limited to the grounds set forth in Section 15A-1444. Because Defendant pleaded guilty, stipulated his prior record level was II, was sentenced in the presumptive range, and never filed a motion to suppress pursuant to N.C. Gen. Stat. § 15A-979, he has no right to appeal.

However, because Defendant filed a petition for writ of certiorari to conduct an independent review of the record in accordance with Anders v. California and State v. Kinch , "we will review the legal points appearing in the record, transcript, and briefs, not for the purpose of determining their merits (if any) but to determine whether they are wholly frivolous." Kinch , 314 N.C. at 102-03 , 331 S.E.2d at 667 . Further, "we must examine any issue that defendant could have possibly raised." State v. Hamby , 129 N.C. App. 366 , 369, 499 S.E.2d 195 , 197 (1998).

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Cite This Page — Counsel Stack

Bluebook (online)
823 S.E.2d 656, 263 N.C. App. 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mayo-ncctapp-2019.