STATE v. NESBITT (2019)

Defendant James Scott Nesbitt appeals from judgments entered upon his Alford plea to two counts of attempted statutory sex offense with a child 15 years of age or younger and two counts of taking indecent liberties with a child. For the following reasons, we affirm.

Counsel appointed to represent Defendant on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating that after close examination of the record and relevant law, he “is unable to identify any non-frivolous issue to support a meaningful argument for relief on appeal.” He asks this Court to conduct its own review of the record for possible prejudicial error. Counsel has filed documentation with the Court showing that he has complied with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his right to file written arguments with the Court and providing him with a copy of the documents pertinent to his appeal. Defendant has not filed any written documents on his own behalf with this Court, and a reasonable time for him to do so has expired.

The State has filed a motion to dismiss Defendant's appeal, arguing that Defendant does not have an appeal of right because he pleaded guilty and was sentenced in the presumptive range, and he has not raised an appealable issue in his brief. Because Defendant does have a limited right of appeal to review certain sentencing issues under N.C. Gen. Stat. § 15A-1444(a1) and (a2) (2017), and Defendant's appellate counsel has filed an Anders brief requesting this Court to review the record for any prejudicial errors, we deny the State's motion to dismiss.

In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit exist. By virtue of his guilty plea, Defendant's right of appeal is limited to the sentencing issues set forth in N.C. Gen. Stat. § 15A-1444(a1) and (a2). Here, Defendant stipulated to his prior convictions and prior record level. Furthermore, Defendant received the sentences specifically provided for in his plea agreement, and those sentences fall within the presumptive ranges for Class B2 and Class F felonies at a prior record level V. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2017). Accordingly, we find no prejudicial error and affirm the trial court's judgments.

AFFIRMED.

Report per Rule 30(e).

DILLON, Judge.

Judges DIETZ and MURPHY concur.