STATE v. FREEMAN (2022)

¶ 1 Defendant Kiquan Freeman appeals from a judgment entered upon his Alford plea.¹ Counsel for Defendant filed an Anders brief, and Defendant filed a pro se brief. After careful review, we affirm.

¶ 2 On 19 July 2021, Defendant entered into a plea agreement with the State pursuant to which Defendant's two charges of discharging a weapon into an occupied dwelling and one charge of possession of marijuana paraphernalia were consolidated into one active sentence. The trial court subsequently entered judgment in accordance with the plea agreement, sentencing Defendant to a term of 60 to 84 months in the custody of the North Carolina Division of Adult Correction. With Defendant's agreement, the court entered a civil judgment against Defendant for restitution; it also entered a civil judgment against Defendant for costs and court appointed attorneys’ fees. Defendant filed written notice of appeal on 28 July 2021, but he failed to serve it on the State.

¶ 3 In light of this defective notice of appeal, Defendant filed a petition for writ of certiorari with this Court on 9 February 2022. Pursuant to Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure, this Court possesses the authority to allow a petition for writ of certiorari and review an order or judgment entered by the trial court “when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.R. App. P. 21(a)(1). The State does not contend that it has been misled by Defendant's failure to serve the notice of appeal. It is within this Court's discretion to issue a writ of certiorari under these circumstances where the appellee has not been misled by the appellant's mistake. See State v. Springle, 244 N.C. App. 760, 763, 781 S.E.2d 518, 521 (2016) (“[A] defect in a notice of appeal should not result in loss of the appeal as long as the intent to appeal can be fairly inferred from the notice and the appellee is not misled by the mistake.” (citation and internal quotation marks omitted)).

¶ 4 Thus, in our discretion, we allow Defendant's petition for writ of certiorari and proceed to address the merits of his arguments. See State v. Rowe, 231 N.C. App. 462, 465–66, 752 S.E.2d 223, 225–26 (2013) (allowing the defendant's petition for writ of certiorari where he failed to designate the court to which appeal was being taken and did not serve notice of appeal on the State).

¶ 5 Counsel appointed to represent Defendant on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), indicating that he was “unable to identify any issues with sufficient merit to support relief on appeal.” Counsel requests that this Court conduct its own review of the record for possible prejudicial error. Counsel has also demonstrated to the satisfaction of this Court 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 arguments with this Court and providing him with the documents necessary to do so.

¶ 6 Defendant has filed a pro se brief with this Court, but his proposed issues either (1) fail to embrace the limited issues for which he has an appeal of right following his Alford plea, see N.C. Gen. Stat. § 15A-1444(a1)–(a2) (2021), or (2) have no merit, based on our careful review of the record. Thus, Defendant is not entitled to relief on these bases.

¶ 7 “Under our review pursuant to Anders and Kinch, we must determine from a full examination of all the proceedings whether the appeal is wholly frivolous.” State v. Frink, 177 N.C. App. 144, 145, 627 S.E.2d 472, 473 (2006) (citation and internal quotation marks omitted). As required by Anders and Kinch, we have conducted a full examination of the record for any issue with arguable merit. We have been unable to find any error, and we conclude that this appeal presents no issue that might entitle Defendant to relief. Accordingly, we affirm the judgment entered in this case.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   An Alford plea is a guilty plea in which the defendant does not admit to any criminal act, but admits that there is sufficient evidence to convince the judge or jury of the defendant's guilt. See North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171 (1970); State v. Baskins, 260 N.C. App. 589, 592 n.1, 818 S.E.2d 381, 387 n.1 (2018), disc. review denied, 372 N.C. 102, 824 S.E.2d 409 (2019).

ZACHARY, Judge.

Judges INMAN and JACKSON concur.