State v. Shaw

NO. COA14-125
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 11 CRS 204350
SUSAN DENISE SHAW
Appeal by defendant from judgment entered 25 February 2013
by Judge Sharon Tracey Barrett in Mecklenburg County Superior
Court. Heard in the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
for defendant.
ELMORE, Judge.
Defendant appeals from judgment entered 25 February 2013
after she pled guilty to driving while impaired (DWI). The
trial court sentenced defendant to imprisonment for 12 months
minimum, 12 months maximum, which was suspended for 18 months on
various conditions including an active sentence of 14 days
imprisonment. After careful consideration, we dismiss
defendant’s appeal.
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I. Facts
On 25 October 2011, Susan Denise Shaw (defendant) was
convicted of misdemeanor DWI in Mecklenburg County District
Court. She appealed the conviction to Mecklenburg County
Superior Court and pled guilty to the same charge on 25 February
2013. The trial court found one grossly aggravating factor, a
prior DWI conviction within seven years before the current
conviction’s offense date, and imposed a Level Two punishment.
Defendant timely appeals to this Court.
II. Analysis
a.) Right to Appeal
The State argues for this Court to dismiss defendant’s
appeal because defendant has no statutory right to appeal. We
agree.
N.C. Gen. Stat. § 15A-1444(e) (2013), in relevant part,
states:
Except as provided in subsections (a1) and
(a2) of this section . . . 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.
Thus, a defendant can appeal as a matter of statutory right
pursuant to a guilty plea, in pertinent part, if she satisfies
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either N.C. Gen. Stat. §§ 15A-1444 (a1) or (a2). Under
subsection (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.
N.C. Gen. Stat. § 15A-1444(a1) (2013).
The provision of (a1) does not apply to the case at bar
because defendant did not enter a plea of guilty to a felony.
See id. Moreover, defendant’s argument on appeal solely relates
to the State’s failure to give timely notice of its intent to
seek a grossly aggravating factor at sentencing, not whether her
sentence was supported by evidence introduced at the sentencing
hearing. We also note that while defendant requests, in the
alternative, that we “review the case under [our] certiorari
jurisdiction[,]” we do not have the authority to do so under
these circumstances. See N.C. R. App. P. 21(a)(1) (providing
that this Court may issue a writ of certiorari to “permit review
of the judgments and orders of trial tribunals when the right to
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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 . . . of an order of the trial court
denying a motion for appropriate relief”). Even if we had such
authority, defendant nevertheless fails to satisfy the filing
and content requirements of a petition for writ of certiorari
pursuant to Appellate Rule 21(c). See N.C. R. App. P. 21(c).
Under subsection (a2), the specific enumerated statutory
avenues of appeal fall under Article 81B (Structured
Sentencing), which is expressly inapplicable to a defendant
convicted of DWI. See N.C. Gen. Stat. § 15A-1444(a2); see also
N.C. Gen. Stat. § 15A-1340.10 (2013) (“[Article 81B] applies to
criminal offenses in North Carolina, other than impaired driving
under G.S. 20-138.1[.]”) (emphasis added).
Defendant cites State v. Parisi in support of her assertion
that she has a statutory right to appeal her DWI guilty plea.
135 N.C. App. 222, 519 S.E.2d 531 (1999). We are unpersuaded.
In Parisi, the defendant pled guilty to DWI in superior court,
and the sentencing judge determined that the defendant’s prior
conviction for “driving while ability impaired” in New York
constituted a grossly aggravating factor. Id. at 222, 519
S.E.2d at 532. Defendant appealed, and this Court ruled on the
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merits of the defendant’s argument. Id. at 223, 519 S.E.2d at
532. Unlike the case at bar, there is no indication that the
State raised the issue of the defendant’s statutory right to
appeal through a motion to dismiss, and the Parisi court’s
opinion indicates that it did not consider or rule on that
issue. This Court only addressed whether the prior New York
conviction was a grossly aggravating factor. Id. at 223-27, 519
S.E.2d at 532-34.
However, in State v. Absher, our Supreme Court addressed
the very issue presented to us in this appeal. 329 N.C. 264,
265, 404 S.E.2d 848, 849 (1991). In Absher, the defendant pled
guilty to DWI in superior court, and he attempted to appeal the
sentencing court’s judgment to this Court. Id. at 265, 404
S.E.2d at 849. The State filed a motion to dismiss on appeal,
arguing that the defendant “had no right to appellate review
from the judgment and sentence imposed pursuant to his plea of
guilty.” Id. Our Supreme Court ruled that dismissal of the
defendant’s appeal was necessary because “[n]one of the
exceptions mentioned in [N.C. Gen. Stat. § 15A-1444(e)] apply in
this case, and defendant is therefore not entitled to appeal as
a matter of right from the judgment entered on his plea of
guilty.” Id. Similarly, no provision in N.C. Gen. Stat. § 15A-
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1444(e) gives defendant in this case a statutory right to
appeal. Thus, we dismiss defendant’s appeal.
III. Conclusion
In sum, we dismiss the appeal because defendant does not
have a statutory right to appeal.
Dismissed.
Judges CALABRIA and STEPHENS concur.