STATE v. GILLARD (2019)

Defendant Howard Lamar Gillard appeals from a judgment entered upon his guilty plea to failure to notify the Sheriff of a change of address after being convicted of a reportable sex offense.

Counsel appointed to represent Defendant on appeal “is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal” and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has shown to the satisfaction of this Court that she has complied with the requirements of Anders v. California, 386 U.S. 738 (1967), 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 this Court and providing him with the documents necessary for him to do so. Defendant has not filed any written arguments.

The State has filed a motion to dismiss defendant's appeal, arguing his guilty plea limits his right to appeal, and he has not raised an appealable issue in his brief. Nonetheless, Defendant has a statutory right to appellate review of certain issues, see N.C. Gen. Stat. § 15A-1444(a2), (e) (2017), and since defendant's counsel filed an Anders brief asking this Court to review the record for any possible appealable issue, we deny the State's motion to dismiss. See State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998) (conducting Anders review even though the defendant pled guilty and “brought forward no issues on appeal”).

In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom.¹ Upon a review of the record, we have been unable to find any possible prejudicial error, but have found that trial court failed to make findings of fact or conclusions of law that Defendant's prior out-of-state convictions were sufficiently similar to crimes in North Carolina. See N.C. Gen. Stat. § 15A-1340.14(e) (2017); see also State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006) (“We conclude that the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court.”). Thus, we affirm the judgment against Defendant, but remand to the trial court for a new sentencing hearing. See State v. Palmateer, 179 N.C. App. 579, 581-82, 634 S.E.2d 592, 594 (2006).

AFFIRMED IN PART AND REMANDED IN PART.

Report per Rule 30(e).

FOOTNOTES

1.   Our review of potential error was limited to those issues for which an appeal of right is authorized by N.C. Gen. Stat. § 15A-1444 (2017). See State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003).

DILLON, Judge.

Judges DIETZ and MURPHY concur.