STATE v. FOSTER (2020)

Defendant appeals following his Alford plea to one count of indecent liberties with a minor and one count of attempted statutory sex offense with a minor under 15. Defendant argues the “trial court lacked subject-matter jurisdiction to accept and enter judgment on Mr. Foster's guilty plea where the alleged victim was identified in the indictments only as ‘A.G.’ ”. Defendant's oral notice of appeal was not timely, and he has submitted a petition for writ of certiorari. However, Defendant's appeal must be dismissed as it is not properly before this Court.

“A defendant's right to appeal a conviction is purely statutory.” State v. Davis, 227 N.C. App. 572, 574, 742 S.E.2d 640, 641 (2013) (quoting State v. Santos, 210 N.C. App. 448, 450, 708 S.E.2d 208, 210 (2011)). In his brief, Defendant alleges the following grounds for appellate review, “Mr. Foster appeals from a final judgment of the Superior Court in Rockingham County pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444.” Neither statute gives Defendant the right to appeal following a plea of guilty in this case. See N.C. Gen. Stat. §§ 7A-27(b), 15A-1444 (2019).

(b) Except as provided in subsection (a) of this section, appeal lies of right directly to the Court of Appeals in any of the following cases:

(1) From any final judgment of a superior court, other than one based on a plea of guilty or nolo contendere, including any final judgment entered upon review of a decision of an administrative agency, except for a final judgment entered upon review of a court martial under G.S. 127A-62.

N.C. Gen. Stat. § 7A-27(b)(1) (emphasis added).

(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:

(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.

N.C. Gen. Stat. § 15A-1444(a2)(1)-(3) (emphasis added).

Defendant “did not lose his right to appeal due to ‘failure to take timely action,’ ” State v. Royster, 239 N.C. App. 196, 201, 768 S.E.2d 196, 199 (2015), and we deny his petition and grant the State's motion to dismiss. The proper procedure through which Defendant may challenge the validity of the indictment following a guilty plea is by a motion for appropriate relief under North Carolina General Statute § 15A-1415(b)(2) with the trial court or a petition for a writ of habeas corpus.

DISMISSED.

Report per Rule 30(e).

STROUD, Judge.

Judges BRYANT and MURPHY concur.