State v. Carter , 167 N.C. App. 582 ( 2004 )

THORNBURG, Judge,

concurring in the result only.

Although I concur in the result ultimately reached by the majority, I cannot agree with the majority’s reasoning for granting defendant’s petition for writ of certiorari. Defendant’s appeal is not based on any of the six errors for which N.C. Gen. Stat. § 15A-1444 allows an appeal as a matter of right to defendants who plead guilty. Nor does defendant’s appeal, or petition for writ of certiorari, fall into one of the three situations in which we are allowed to grant certiorari under N.C. R. App. P. 21. In the vast majority of cases with similar facts, this Court has refused to grant a writ of certiorari and dismissed the appeal. See State v. Jamerson, 161 N.C. App. 527, 588 S.E.2d 545 (2003); State v. Nance, 155 N.C. App. 773, 574 S.E.2d 692 (2003); State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002); State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002).

Here, the majority relies on State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004), for authority to grant a writ of certiorari to address defendant’s argument that the trial court failed to properly determine whether defendant’s guilty plea was made voluntarily, intelligently and understandingly. In Rhodes, this Court relied upon the Official Commentary to Article 58, N.C. Gen. Stat. § 15A-1021 et seq. (2003), and State v. Bolinger, 320 N.C. 596, 359 S.E.2d 459 (1987), to conclude that defendants may petition this Court for review pursuant to a petition for writ of certiorari during the appeal period to claim that the procedural requirements of Article 58 were violated. Rhodes, 163 N.C. App. at 194, 592 S.E.2d at 733. However, the Supreme Court in Bolinger did not address the applicability of N.C. R. App. R 21. The Court, after concluding that the defendant was not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his plea and that the defendant failed to petition the Court for. a writ of certiorari, stated: “Neither party to this appeal appears to have recognized the limited bases for appellate review of judgments entered upon pleas of guilty. For this reason we nevertheless choose to review the merits of defendant’s contentions.” Bolinger, 320 N.C. at 601-02, 359 S.E.2d at 462. Thus, it does not appear that the Court in Bolinger intended to sanction a general exception to our appellate rules.

However, I agree with the majority that the acceptance of defendant’s guilty plea was without error and that defendant was sentenced in violation of State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982). As defendant was clearly sentenced in violation of Perry, I believe it would be an appropriate exercise of this Court’s discretion under N.C. R. App. P. 2 to suspend the appellate rules and grant defendant’s petition for writ of certiorari in order to review the sentencing issue. Thus, I concur in the result only.