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State v. Mayo

Court of Appeals of North Carolina

January 15, 2019

STATE OF NORTH CAROLINA
v.
MICHAEL TYRONE MAYO, JR., Defendant.

          Heard in the Court of Appeals 17 October 2018.

          Appeal by defendant from judgment entered 6 September 2017 by Judge Michael D. Duncan in Guilford County, No. 17CRS074729Superior Court.

          Attorney General Joshua H. Stein, by Associate Attorney General Cara Byrne, for the State.

          Warren D. Hynson for defendant-appellant.

          BERGER, JUDGE.

         On September 6, 2017, Michael Tyrone Mayo, Jr. ("Defendant") pleaded guilty to felony fleeing to elude arrest. Defendant was sentenced to an active term of seven to eighteen months in prison. On September 14, 2017, Defendant filed a written notice of appeal. Defendant filed a petition for writ of certiorari on May 2, 2018, seeking appellate review on the entry of a civil judgment against him for attorney's fees, and review pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). We grant Defendant's petition for writ of certiorari, remand for hearing on the issue of attorney's fees, and dismiss the remainder of Defendant's appeal.

         Factual and Procedural Background

         On June 26, 2017, Defendant was indicted for fleeing to elude arrest by motor vehicle and for resisting a public officer. Defendant pleaded guilty to felony fleeing to elude arrest on September 6, 2017. As part of the plea arrangement, other charges were dismissed. Defendant stipulated to a prior record level of II, and he was sentenced to an active term of seven to eighteen months imprisonment. He was also ordered to pay court costs in the amount of $1, 572.50. Defendant filed a notice of appeal on September 14, 2017.

         On May 2, 2018, Defendant filed a petition for writ of certiorari alleging Defendant did not have proper notice and opportunity to be heard on the amount of attorney's fees and costs. In the same petition, Defendant argued in the alternative that this Court conduct an independent review of the record pursuant to Anders v. California and State v. Kinch. Defendant's counsel also filed a brief with this Court pursuant to Anders stating that he "has carefully reviewed the transcript, the superior court file, and relevant law," and was "unable to identify an issue with sufficient merit to support a meaningful argument for reversal of [Defendant]'s conviction."

         Analysis

         "[A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute." State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869 (2002). Section 15A-1444 of the North Carolina General Statutes provides that

(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.
(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 ...

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