                              NO. COA14-125

                    NORTH CAROLINA COURT OF APPEALS

                        Filed: 16 September 2014


STATE OF NORTH CAROLINA


    v.                                  Mecklenburg County
                                        No. 11 CRS 204350
SUSAN DENISE SHAW



    Appeal by defendant from judgment entered 25 February 2013

by Judge Sharon Tracey Barrett in Mecklenburg County Superior

Court.    Heard in the Court of Appeals 13 August 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Joseph L. Hyde, for the State.

    Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
    for defendant.


    ELMORE, Judge.


    Defendant appeals from judgment entered 25 February 2013

after she pled guilty to driving while impaired (DWI).                 The

trial court sentenced defendant to imprisonment for 12 months

minimum, 12 months maximum, which was suspended for 18 months on

various   conditions   including   an   active   sentence   of   14   days

imprisonment.       After   careful     consideration,      we   dismiss

defendant’s appeal.
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                                             I. Facts

     On    25    October       2011,   Susan       Denise    Shaw   (defendant)      was

convicted      of    misdemeanor       DWI    in    Mecklenburg     County       District

Court.     She      appealed     the    conviction          to   Mecklenburg      County

Superior Court and pled guilty to the same charge on 25 February

2013.     The trial court found one grossly aggravating factor, a

prior    DWI     conviction     within       seven    years      before    the   current

conviction’s offense date, and imposed a Level Two punishment.

Defendant timely appeals to this Court.

                                        II. Analysis

a.) Right to Appeal

     The    State     argues     for    this       Court    to   dismiss   defendant’s

appeal because defendant has no statutory right to appeal.                             We

agree.

     N.C. Gen. Stat. § 15A-1444(e) (2013), in relevant part,

states:

                Except as provided in subsections (a1) and
               (a2) of this section . . . the defendant is
               not entitled to appellate review as a matter
               of right when he has entered a plea of
               guilty or no contest to a criminal charge in
               the superior court, but he may petition the
               appellate division for review by writ of
               certiorari.

     Thus, a defendant can appeal as a matter of statutory right

pursuant to a guilty plea, in pertinent part, if she satisfies
                                      -3-
either     N.C.   Gen.   Stat.   §§   15A-1444   (a1)   or   (a2).   Under

subsection (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.

N.C. Gen. Stat. § 15A-1444(a1) (2013).

    The provision of (a1) does not apply to the case at bar

because defendant did not enter a plea of guilty to a felony.

See id.    Moreover, defendant’s argument on appeal solely relates

to the State’s failure to give timely notice of its intent to

seek a grossly aggravating factor at sentencing, not whether her

sentence was supported by evidence introduced at the sentencing

hearing.    We also note that while defendant requests, in the

alternative, that we “review the case under [our] certiorari

jurisdiction[,]” we do not have the authority to do so under

these circumstances.       See N.C. R. App. P. 21(a)(1) (providing

that this Court may issue a writ of certiorari to “permit review

of the judgments and orders of trial tribunals when the right to
                                        -4-
prosecute an appeal has been lost by failure to take timely

action, or when no right of appeal from an interlocutory order

exists, or for review . . . of an order of the trial court

denying a motion for appropriate relief”).                  Even if we had such

authority, defendant nevertheless fails to satisfy the filing

and content requirements of a petition for writ of certiorari

pursuant to Appellate Rule 21(c).             See N.C. R. App. P. 21(c).

    Under subsection (a2), the specific                    enumerated     statutory

avenues   of       appeal        fall   under     Article      81B    (Structured

Sentencing),       which    is    expressly     inapplicable    to   a    defendant

convicted of DWI.          See N.C. Gen. Stat. § 15A-1444(a2); see also

N.C. Gen. Stat. § 15A-1340.10 (2013) (“[Article 81B] applies to

criminal offenses in North Carolina, other than impaired driving

under G.S. 20-138.1[.]”) (emphasis added).

    Defendant cites State v. Parisi in support of her assertion

that she has a statutory right to appeal her DWI guilty plea.

135 N.C. App. 222, 519 S.E.2d 531 (1999).                   We are unpersuaded.

In Parisi, the defendant pled guilty to DWI in superior court,

and the sentencing judge determined that the defendant’s prior

conviction    for    “driving      while   ability    impaired”      in   New    York

constituted    a    grossly      aggravating     factor.       Id.   at   222,    519

S.E.2d at 532.       Defendant appealed, and this Court ruled on the
                                           -5-
merits of the defendant’s argument.                 Id. at 223, 519 S.E.2d at

532.     Unlike the case at bar, there is no indication that the

State raised the issue of the defendant’s statutory right to

appeal    through    a   motion       to   dismiss,   and   the     Parisi   court’s

opinion    indicates     that    it    did   not   consider    or    rule    on   that

issue.     This Court only addressed whether the prior New York

conviction was a grossly aggravating factor.                  Id. at 223-27, 519

S.E.2d at 532-34.

       However, in State v. Absher, our Supreme Court addressed

the very issue presented to us in this appeal.                       329 N.C. 264,

265, 404 S.E.2d 848, 849 (1991).                 In Absher, the defendant pled

guilty to DWI in superior court, and he attempted to appeal the

sentencing court’s judgment to this Court.                     Id. at 265, 404

S.E.2d at 849.       The State filed a motion to dismiss on appeal,

arguing that the defendant “had no right to appellate review

from the judgment and sentence imposed pursuant to his plea of

guilty.”     Id.     Our Supreme Court ruled that dismissal of the

defendant’s       appeal   was        necessary     because    “[n]one       of    the

exceptions mentioned in [N.C. Gen. Stat. § 15A-1444(e)] apply in

this case, and defendant is therefore not entitled to appeal as

a matter of right from the judgment entered on his plea of

guilty.”    Id.     Similarly, no provision in N.C. Gen. Stat. § 15A-
                                    -6-
1444(e)   gives   defendant    in   this   case   a   statutory   right   to

appeal.   Thus, we dismiss defendant’s appeal.

                              III. Conclusion

    In sum, we dismiss the appeal because defendant does not

have a statutory right to appeal.

    Dismissed.

    Judges CALABRIA and STEPHENS concur.
