An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-341
                          NORTH CAROLINA COURT OF APPEALS

                              Filed: 16 September 2014


STATE OF NORTH CAROLINA

      v.                                        Guilford County
                                                No. 03 CRS 70577
JORGE HUERTA-NESTOR CHAVEZ,
          Defendant.


      Appeal by defendant from judgment entered 23 September 2013

by Judge William Z. Wood, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 28 August 2014.


      Attorney General Roy Cooper, by Special                     Deputy   Attorney
      General Daniel P. O'Brien, for the State.

      Jarvis John Edgerton, IV, for defendant-appellant.


      GEER, Judge.


      Defendant       Jorge       Huerta-Nestor    Chavez        appeals   from     a

judgment sentencing him on one count of second degree murder.

In 2003, defendant was indicted for two counts of first degree

murder.       Later       that    year,     pursuant   to   a     plea   agreement,

defendant pled guilty to two counts of second degree murder.                      He

was   sentenced      on     one    count,    but   prayer       for   judgment    was
                                            -2-
continued on the second             count to allow defendant to provide

assistance in locating and prosecuting a codefendant.

       Defendant was not sentenced for the second count of murder

until September 2013,             10 years later.            On appeal, defendant

argues solely that the sentencing court lacked jurisdiction to

sentence   him      in    2013    because    the     State   failed    to   move   for

imposition     of    a     sentence     within       a    reasonable    time   after

defendant pled guilty in 2003.               Because defendant's challenge to

the trial court's jurisdiction falls outside the scope of his

statutory right to appeal from a guilty plea, we must dismiss

this appeal.

                                        Facts

       On the evening of 12 December 2002, Carmelo Rojas-Hernandez

drove with members of his family to Lera's Dance Club in Ruffin,

North Carolina.           Defendant and Arturo Martinez were also at

Lera's that evening.              While Mr. Rojas-Hernandez' stepdaughter

and her female friend -- both of whom were 13 or 14 years old --

were    dancing,         Mr.     Martinez     approached       and    began    making

inappropriate       advances        toward        them.      Mr.     Rojas-Hernandez

informed Mr. Martinez of the girls' ages and told Mr. Martinez

to stop harassing them.

       Later, Lera's security personnel escorted Mr. Martinez out

of the building, and defendant left with him.                      The two men then
                                       -3-
waited outside Lera's in the parking lot.                    Mr. Rojas-Hernandez

and his family left Lera's shortly after the incident in their

Trailblazer.          Defendant       and    Mr.     Martinez      followed     the

Trailblazer in defendant's car with defendant driving.                     Once the

cars were on U.S. Highway 29, defendant pulled his car alongside

the Trailblazer.         Two shots were fired from defendant's car

striking Mr. Rojas-Hernandez and his wife, Elaine Parrish-Rojas,

in the head and ultimately killing both of them.

    Defendant admitted to driving the car during the shooting,

but claimed that Mr. Martinez was the shooter.                      According to

defendant, Mr. Martinez ordered him to drive the car alongside

the Trailblazer and threatened to kill defendant if he did not

do so.        Defendant and Mr. Martinez fled to Mexico after the

shooting.      However, defendant soon returned to the United States

without Mr. Martinez in order to find work.                  Shortly thereafter,

defendant was arrested and extradited to North Carolina.

    On or about 21 April 2003, defendant was indicted for two

counts of first degree murder for the killings of Mr. Rojas-

Hernandez and Ms. Parrish-Rojas.             Pursuant to a plea agreement,

defendant pled guilty on 3 October 2003 to two counts of second

degree murder.       At the plea hearing in Guilford County Superior

court    on    3   November   2003,    Judge       Michael    E.   Helms    entered

judgment against defendant for the murder of Ms. Parrish-Rojas
                                          -4-
and sentenced him to a presumptive-range term of 157 to 198

months imprisonment.           The plea agreement provided that "prayer

for judgment will be continued [for the murder of Mr. Rojas-

Hernandez]      until    8     December     2003   and     from     term    to    term

thereafter as necessary in order for defendant to comply with

the terms of this agreement."               The plea agreement resulting in

the   prayer    for     judgment     continued     ("PJC")      included     several

conditions:

           4.     That   [defendant]   will   voluntarily
                  appear and testify at the trial(s) of
                  Arturo Hernandez Martinez arising from
                  the offenses committed on 15 December
                  2002.

           5.     That   [defendant]   will    voluntarily
                  appear and testify at any other trials
                  resulting from investigations in which
                  he   participates   pursuant    to   his
                  agreement herein.

           6.     That said testimony shall be truthful,
                  complete, and not inconsistent with the
                  statement(s) given to the Guilford
                  County District Attorney's Office and
                  the    Greensboro    Police  Department
                  pursuant    to   the   terms  of   this
                  agreement.

      At the end of the plea hearing, Judge Helms remarked: "No

one can guarantee what the judgment of the Defendant will be in

the   second    case,    but    I   would   suggest      that   .   .   .   the   more

assistance [he] can offer, the better will be his position as to

the second case when it comes to sentencing.                      It may not help
                                           -5-
him a bit, but it certainly wouldn't hurt him to have lent the

assistance       he    possibly    can    in     apprehending      the    codefendant."

Defendant was then placed in the custody of the North Carolina

Department of Corrections.

       After     the    plea    hearing,       defendant    appears       to    have    been

under    the    impression       that    the    charge     for    the    murder    of   Mr.

Rojas-Hernandez was still pending.                  On 23 May 2004 and again on

12 July 2007, defendant sent a pro se "Speedy Trial Letter" to

the     Clerk     of     Court     for     Guilford       County        Superior       Court

"requesting a speedy trial under . . . General Statute 15A-711

concerning docket number[] 03 CRS 070577: [for the murder of Mr.

Rojas-Hernandez]."             On 16 November 2011, defendant filed a pro

se    "Motion    To     Proceed   Under    Article       36"     with    regard    to   the

murder     of    Mr.     Rojas-Hernandez          in   which      he     "categorically

state[d] his factual and legal innocense [sic]," stated that he

"will exercise his right to a trial by jury," and "exert[ed] his

right pursuant to Section (c) of 15A-711 to proceed."

       At some point, defendant's trial counsel, Wayne Baucino,

and     the     Assistant       District       Attorney     for        Guilford    County

responsible       for    prosecuting       defendant's         case,    Maury     Hubbard,

appeared       before    Judge    Henry     E.    Frye,     Jr.    apparently       for   a

hearing relating to defendant's PJC, although defendant was not

present.        At that hearing, Mr. Martinez had yet to be located,
                                 -6-
and "it was agreed that . . . we'd just wait longer, to see if

we were able to procure [Mr. Martinez]."            In either 2010 or

2011, Mr. Baucino and Mr. Hubbard sat down with defendant to

"tr[y] to find out if there was any additional information that

he had received while in prison [about Mr. Martinez], through

contacts with family and so forth.         He was basically able to

provide the Mexican state where he believed [Mr. Martinez] to be

. . . [along with] the name of a village, and some other things

of that nature."    However, Mr. Martinez was never located.

      On 20 September 2012, defendant filed a pro se motion with

the Guilford County Superior Court requesting the preparation of

a transcript from his 2003 plea hearing.         On 6 March 2013, Judge

Patrice H. Hinnant granted the motion for a transcript.

      On 23 September 2013, Judge William Z. Wood, Jr. held a

sentencing hearing with respect to defendant's guilty plea to

the second degree murder of Mr. Rojas-Hernandez.         The prosecutor

explained that "[defendant] did, insofar as he was able, do what

he was supposed to do, in terms of providing information [about

Mr.   Martinez]."     However,   because   Mr.     Martinez   was   never

located, defendant was unable to fully comply with the terms of

his plea agreement.

      Mr. Baucino argued that because defendant "[did] everything

he could possibly do to comply with the terms of the agreement,"
                                        -7-
he should be given a sentence that ran concurrently with his

sentence for the murder of Ms. Parrish-Rojas that he was already

serving.    Mr. Baucino suggested that this outcome would "honor

the spirit of the [plea] agreement."                  Mr. Baucino also argued

the existence of several mitigating factors.

    Following defense counsel's arguments, Judge Wood found the

existence     of    several       mitigating     factors,      including     that

defendant cooperated at an early stage of the investigation; he

accepted responsibility; he was prepared to testify against Mr.

Martinez; and he played a minor role in the commission of the

offense.      Judge Wood then sentenced defendant for the second

degree murder of Mr. Rojas-Hernandez to a mitigated-range term

of 94 to 122 months.          Judge Wood ordered that the sentence run

consecutively to the sentence defendant was already serving for

the murder of Ms. Parrish-Rojas.              Defendant timely appealed to

this Court.

                                   Discussion

    Defendant argues that the trial court had no jurisdiction

to impose a sentence for the murder of Mr. Rojas-Hernandez 10

years after accepting defendant's guilty plea.                  While defendant

consented to the PJC in his plea agreement, defendant argues he

withdrew    his    consent   to   the   PJC    with    his   2004   Speedy   Trial

Letter and that the nine-year delay between the withdrawal of
                                           -8-
his consent and his sentencing in 2013 was unreasonable.                              Citing

State    v.    Degree,      110    N.C.   App.    638,    430      S.E.2d     491    (1993),

defendant asserts that because of the unreasonable delay, the

trial court no longer had jurisdiction to sentence defendant for

the murder of Mr. Rojas-Hernandez.

       In determining whether a delay in sentencing "deprive[s]

[the]    trial      court    of    jurisdiction,"        Degree      held     that    "[t]he

continuance may be for a definite or indefinite period of time,

but    in     any   event    the     sentence      must       be    entered    'within    a

reasonable time' after the conviction or plea of guilty."                                Id.

at 641, 430 S.E.2d at 493 (quoting 21 Am. Jur. 2d Criminal Law §

526,    at    870    (1981)).        "Deciding         whether      sentence    has     been

entered within a 'reasonable time' requires consideration of the

reason for the delay, the length of the delay, whether defendant

has     consented     to     the    delay,       and    any    actual       prejudice    to

defendant which results from the delay."                           Id. (quoting 21 Am.

Jur. 2d Criminal Law § 561, at 924 (1981)).

       The State has, however, moved to dismiss defendant's appeal

on the grounds that it does not fall within the limited bases

for appeal of a guilty plea authorized by N.C. Gen. Stat. § 15A-

1444 (2013).         "In North Carolina, a defendant's right to appeal

in a criminal proceeding is purely a creation of state statute.

Furthermore, there is no federal constitutional right obligating
                                               -9-
courts     to     hear    appeals       in    criminal       proceedings."           State    v.

Pimental,       153    N.C.   App.      69,    72,    568        S.E.2d     867,   869   (2002)

(internal citations omitted).

      Under N.C. Gen. Stat. § 15A-1444, a defendant who has pled

guilty has a right to appeal only the following issues: (1)

whether     the       sentence     is    supported          by    the     evidence    (if    the

minimum      term        of   imprisonment           does        not      fall     within    the

presumptive range); (2) whether the sentence results from an

incorrect finding of the defendant's prior record level under

N.C. Gen. Stat. § 15A-1340.14 (2013) or the defendant's prior

conviction level under N.C. Gen. Stat. § 15A-1340.21 (2013); (3)

whether the sentence contains a type of sentence disposition or

term of imprisonment not authorized by N.C. Gen. Stat. § 15A-

1340.17 (2013) or § 15A-1340.23 (2013) for the defendant's class

of offense and prior record or conviction level; (4) whether the

trial      court       improperly        denied       the        defendant's        motion    to

suppress; and (5) whether the trial court improperly denied the

defendant's        motion     to    withdraw         his    guilty        plea.      State    v.

Jamerson,       161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47

(2003).

      Defendant's jurisdictional challenge does not fall within

any   of    the    provisions       of       N.C.    Gen.    Stat.      §   15A-1444.        Our

Supreme Court has held: "While it is true that a defendant may
                                       -10-
challenge the jurisdiction of a trial court, such challenge may

be made in the appellate division only if and when the case is

properly      pending   before   the   appellate   division."      State      v.

Absher, 329 N.C. 264, 265 n.1, 404 S.E.2d 848, 849 n.1 (1991)

("Absher I").        See also Jamerson, 161 N.C. App. at 529, 588

S.E.2d   at    547   (accord).    Because     defendant   does   not   have   a

statutory right to challenge the trial court's jurisdiction on

appeal, we are without authority to hear defendant's appeal.

    Nonetheless, defendant contends that his appeal falls under

N.C. Gen. Stat. § 15A-1444(a1), which provides:

              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.

Defendant argues that he "is indeed challenging . . . whether

his mitigated sentence was supported by the evidence" in that

"the sentence was not supported by evidence the sentencing court

had jurisdiction to enter any sentence[.]"

    Defendant's argument is foreclosed by Absher I.                In Absher

I, the defendant pled guilty to operating a motor vehicle while
                                              -11-
impaired.       329 N.C. at 265, 404 S.E.2d at 849.                      As explained in

a subsequent appeal in the same case, State v. Absher, 335 N.C.

155,    156,    436     S.E.2d      365,     366     (1993)    ("Absher      II"),    "[t]he

prayer for judgment was in effect continued from term to term

when    a    sentence       was    not    imposed[,]"      and     a   sentence      was   not

imposed until five months after defendant's plea was entered.

In   Absher     I,     defendant         argued    that    the      trial    court    lacked

jurisdiction to impose a sentence five months after the PJC.

See Absher II, 335 N.C. at 156, 436 S.E.2d at 366.                                The State

moved to dismiss the defendant's appeal                            on the same grounds

asserted in this case: that the defendant's appeal did not fall

within the statutory grounds for appeal from a guilty plea.

Absher I, 329 N.C. at 265, 404 S.E.2d at 849.                                Although this

Court       denied    the     State's     motion      to   dismiss     and     vacated     the

defendant's          sentence,      the     Supreme    Court       reversed,    explaining

that    "[t]he        Court    of    Appeals       erred      in   failing     to    dismiss

defendant's      appeal"          because    "defendant       [was]    not     entitled     to

appeal as a matter of right from the judgment entered on his

plea of guilty."            Id.

       This appeal is indistinguishable from Absher I.                              Based on

Absher I, we must hold that defendant's argument does not fall

within any of the statutory grounds for appeal from a guilty

plea.       Absher I establishes further that it is immaterial that
                                           -12-
defendant is challenging the jurisdiction of the trial court.

We are bound by our Supreme Court's decision in Absher I and,

therefore, dismiss defendant's appeal.

    Defendant,           however,        argues     that   Degree        supports     the

conclusion that this Court has jurisdiction over his argument.

Degree could not, however, have overruled Absher I's holding

that this Court lacked jurisdiction over an appeal contending

that the trial court lacked jurisdiction to sentence a defendant

following      a   PJC    after     an    unlawful      delay.      See    Andrews     v.

Haygood, 188 N.C. App. 244, 248, 655 S.E.2d 440, 443 (2008)

("'[T]his Court has no authority to overrule decisions of our

Supreme Court and we have the responsibility to follow those

decisions[.]'" (quoting Dunn v. Pate, 106 N.C. App. 56, 60, 415

S.E.2d 102, 104 (1992), rev'd on other grounds, 334 N.C. 115,

431 S.E.2d 178 (1993))).                 We note that the full basis for the

decision      in   Absher   I     was     not   apparent    until    Absher     II,    an

opinion that came down after this Court's decision in Degree.

    Regardless, Degree did not expressly address whether this

Court   had    jurisdiction       and     was     not   required    to    do   so   since

defendant made two arguments on appeal: (1) that defendant's

sentence was unreasonably delayed following the PJC, and (2)

that the trial court improperly based the defendant's sentence

on a nonstatutory aggravating factor.                      110 N.C. App. at 640,
                                       -13-
642, 430 S.E.2d at 492-93, 494.                  The defendant in Degree was

entitled under N.C. Gen. Stat. § 15A-1444(a1) (1991) to appeal

whether the trial court properly sentenced him in the aggravated

range.    This Court therefore had jurisdiction over the appeal.

See State v. Jones, 161 N.C. App. 60, 64, 588 S.E.2d 5, 9 (2003)

("Although    our    power    to    consider      jurisdiction      is   limited    to

those cases properly pending before the Court, we may consider

the   issue   here   because       defendant      has   a   right   to   appeal    his

motion to suppress [under N.C. Gen. Stat. § 15A-1444]."), rev'd

in part on other grounds, 358 N.C. 473, 598 S.E.2d 125 (2004).

      In defendant's response to the State's motion to dismiss,

defendant further argues that his sentence for the murder of Mr.

Rojas-Hernandez      was     the   result    of    ineffective      assistance      of

counsel   ("IAC").         Because    we    do    not   have   jurisdiction       over

defendant's appeal, defendant's IAC claim should be raised in

the trial court in a motion for appropriate relief under N.C.

Gen. Stat. § 15A-1415 (2013).


      Dismissed.

      Judge STEELMAN concurs.

      Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

      to 6 September 2014.

      Report per Rule 30(e).
