An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1206
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Cumberland County
                                              No. 11 CRS 66293
JEROME KEITH JOHNSON



      Appeal by defendant from judgment entered 6 June 2013 by

Judge Claire V. Hill in Cumberland County Superior Court.                     Heard

in the Court of Appeals 7 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Laura E. Parker, for the State.

      Irons & Irons, P.A., by Ben G. Irons, II, for defendant-
      appellant.


      ELMORE, Judge.


      Jerome Keith       Johnson (“defendant”) appeals from judgment

entered after he pled guilty, pursuant to Alford, to misdemeanor

maintaining a dwelling for controlled substances.                  Defendant was

sentenced to a suspended term of 30 days imprisonment and placed

on 12 months of supervised probation.                  Defendant argues that
                                         -2-
there was an insufficient factual basis to support his Alford

plea.   For the reasons discussed herein, we affirm.

      Defendant entered a pro se notice of appeal.                       Defendant

acknowledges that the pro se notice of appeal violates Rule 4 of

the   North    Carolina    Rules    of    Appellate        Procedure   because    it

failed to note the court to which the appeal was taken, was

unsigned, and there was no proof of service on the State.                          “A

failure on the part of the appealing party to comply with Rule 4

deprives   this    Court    of    jurisdiction       to    consider    his   or   her

appeal[.]”     State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d

777, 778 (2011).          Furthermore, defendant acknowledges that he

does not have an appeal as a matter of right to challenge the

trial court’s acceptance of his guilty plea.                      See N.C. Gen.

Stat. § 15A-1444 (2013) (listing the issues that a defendant who

has entered a plea of guilty or no contest is entitled to appeal

as a matter of right).           We therefore grant the State’s motion to

dismiss defendant’s appeal.

      Pursuant to N.C. Gen. Stat. § 15A-1444(e) and Rule 21 of

the North Carolina Rules of Appellate Procedure, defendant seeks

issuance      of   this    Court’s       writ   of        certiorari    to   invoke

jurisdiction to review his argument regarding the sufficiency of

the factual basis to support his plea.                    In our discretion, we
                                      -3-
grant certiorari to review defendant’s argument.                     See State v.

Demaio,   ___   N.C.   App.   ___,   ___,     716    S.E.2d       863,   866    (2011)

(granting certiorari to review whether the trial court erred in

accepting the defendant’s guilty plea).

    Defendant      contends     that        the     trial     court        erred       by

determining there to be a factual basis in support of his Alford

plea because the State failed to show that defendant knew about

the controlled substances in his house or being sold from his

house.     Defendant    further      contends       that    the    State       made    no

attempt    to   establish     that     he    actually       possessed          or     had

constructive possession of cocaine.           We disagree.

    “The judge may not accept a plea of guilty or no contest

without first determining that there is a factual basis for the

plea.”    N.C. Gen. Stat. § 15A-1022(c) (2013).               The determination

that there is a factual basis to support a plea may be based

upon “[a] statement of the facts by the prosecutor.”                     Id.

           There are . . . two theories under which the
           State   may  prosecute  a   defendant  under
           N.C.G.S. § 90-108(a)(7). Under the first
           statutory alternative the State must prove
           that the defendant did (1) knowingly (2)
           keep or maintain (3) a [dwelling] (4) which
           is resorted to (5) by persons unlawfully
           using controlled substances (6) for the
           purpose of using controlled substances.
           Under the second statutory alternative, the
           State must prove that the defendant did (1)
           knowingly (2) keep or maintain (3) a
                                 -4-
            [dwelling] (4) which is used for the keeping
            or selling (5) of controlled substances.

State v. Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994).

            Factors    which    may    be    taken    into
            consideration   in   determining   whether   a
            person keeps or maintains a dwelling include
            ownership of the property, occupancy of the
            property, repairs to the property, payment
            of   utilities,   payment   of  repairs,   and
            payment of rent. Since none of the factors
            is   dispositive,   the   determination   will
            depend on the totality of the circumstances.

State v. Baldwin, 161 N.C. App. 382, 393, 588 S.E.2d 497, 506

(2003) (citations omitted).

    Here,     the   prosecutor   made   the   following      statement

summarizing the evidence at defendant’s plea hearing:

            On December 19th of 2011, Officer Franklin,
            with the Fayetteville Police Department,
            conducted a search warrant at 425 Chadham
            Street,   after   conducting   a  controlled
            purchase and a [indiscernible] inspection.
            Upon execution of the search warrant, they
            located, in the defendant’s bedroom, .5
            grams of cocaine and three individuals
            locks, a dog bowl with cocaine residue on it
            from coc -- cutting cocaine, a digital scale
            used to weigh cocaine, a razor blade used to
            cut cocaine, torn baggies for packaging and
            repacking    cocaine   --    used   for   --
            [indiscernible] used to store cocaine, mail
            addressed to the defendant proving his
            residency at that address and $190 in small
            increments.   To give some more background,
            there had been a CI sent in who had said
            that there could be drugs bought from that
            address. The CI went in on one day.      The
            officer observed it -- going to the door. I
                                     -5-
           don’t believe there’s any indication of who
           they saw answer the door; and, she went in
           and bought -- the CI went in and bought
           narcotics, then came out. They attempted to
           do another buy on a different day; but, when
           they searched the CI, the CI did buy
           cocaine, but then also tried to conceal
           cocaine in a chap stick holder; and, so,
           after having the one purchase, where they
           did not find additional cocaine hidden on
           the    CI,   they    decided   to   do    an
           [indiscernible] from the curbside. They did
           do that; but, primarily, it appeared to be
           baggie corners that were collected; and, I
           don’t think there was an indication of who
           the CI had actually purchased from, but we
           could confirm that this was his address, as
           he was listed on mail that had come from
           there; and, that’s why we ended up with this
           plea. Thank you.

The   prosecutor’s   summary   above       contains   the    1.)   appropriate

facts necessary to prosecute defendant under N.C. Gen. Stat. §

90-108(a)(7)   and   2.)   factors    set    forth    in    Mitchell,   supra.

Furthermore, defendant did not correct or add anything further

to the prosecutor’s summary.          Thus, the trial court correctly

found that there was a factual basis for the plea.

      Moreover, we cannot agree with defendant’s contention that

the State made no attempt to establish that defendant actually

possessed or had constructive possession of cocaine.

           An accused’s possession of narcotics may be
           actual or constructive. He has possession of
           the contraband material within the meaning
           of the law when he has both the power and
           intent to control its disposition or use.
                                     -6-
           Where such materials are found on the
           premises under the control of an accused,
           this fact, in and of itself, gives rise to
           an inference of knowledge and possession[.]

State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).                In

this case, there was confirmation that the home was defendant’s

residence.       Also,   the   contraband,   including      cocaine,   digital

scale,   razor    blade,   and    baggies    were   found    in   defendant’s

bedroom.     We therefore conclude that the summary of the facts by

the prosecutor was sufficient to establish a factual basis for

defendant’s Alford plea to misdemeanor maintaining a dwelling

for controlled substances.        Accordingly, we affirm.

    Affirmed.

    Judges McGee and Davis concur.

    Report per Rule 30(e).
