                                 NO. COA13-863

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 4 March 2014


STATE OF NORTH CAROLINA

    v.                                   Montgomery County
                                         No. 11CRS051289
PAUL EDWARD SALE



    Appeal by defendant from judgment entered 18 March 2013 by

Judge L. Todd Burke in Montgomery County Superior Court.              Heard

in the Court of Appeals 10 December 2013.


    Attorney General Roy Cooper, by Assistant Attorney General
    Christina S. Hayes, for the State.

    Richard Croutharmel for defendant-appellant.


    HUNTER, Robert C., Judge.


    Paul     Edward    Sale    (“defendant”)     appeals    from    judgment

imposing   36   months   of    supervised   probation      after   defendant

entered an Alford plea to one count of obstructing justice.               On

appeal, defendant argues: (1) the trial court erred by failing

to make findings of fact as to why a probationary period longer

than 18 months was necessary; and (2) the trial court abused its

discretion      by    imposing    a   probation     condition       limiting
                                       -2-
defendant’s employment opportunities that was overly broad and

unduly burdensome.

      After    careful     review,   we      remand   for    resentencing         and

dismiss defendant’s argument regarding the special condition of

probation.

                                  Background

      In January 2012, defendant was charged with one count of

willful failure to discharge duties based on receiving a bribe

and   one   count   of   obstructing      justice.     In    exchange       for   the

State’s dismissal of the failure to discharge duties offense,

defendant entered an Alford plea to one count of misdemeanor

obstructing justice.        The prosecutor introduced the following as

the factual basis for the plea.

      In    September    2010,   defendant      was   working     as    a    police

officer in the town of Candor, North Carolina.                      During this

time, defendant conducted a traffic stop of Stephanie Gibson

(“Gibson”)     resulting    in   criminal      charges      for   possession       of

cocaine.      After that date, Gibson agreed to have intercourse

with defendant in exchange for his assurance that he would have

the charges dismissed.           Defendant and Gibson consummated this

agreement on 6 December 2010.             Thereafter, defendant failed to

appear for any of Gibson’s court dates, but the charge against
                                      -3-
her was continued rather than dismissed.                Gibson then contacted

the    State    Bureau      of    Investigation,        which       launched      an

investigation       and   brought     the     underlying      charges       against

defendant.     Defendant was employed as a correctional officer at

the Morrison Correctional Facility in Richmond County by the

time this matter came before the trial court.

       Based   on    defendant’s      Alford     plea    to     one       count   of

obstructing    justice,     the   trial     court   sentenced       defendant     to

thirty days imprisonment, but suspended this sentence for 36

months of supervised probation.             The trial court further ordered

that    defendant:    (1)   pay     court    costs;     (2)   pay     a    fine   of

$1,000.00; (3) comply with the regular terms and conditions of

probation; and (4) refrain from working in any law enforcement

capacity during the probationary period.              Defendant filed timely

notice of appeal.

                                  Discussion

                I. Findings as to Length of Probation

       Defendant’s first argument is that the trial court erred by

failing to enter specific findings as to why a probationary

period longer than that mandated by statute for his misdemeanor

offense was necessary. The State concedes that the trial court
                                     -4-
erred   and    agrees    with   defendant    that   the     case   should    be

remanded.     Accordingly, we remand for resentencing.

    N.C. Gen. Stat. § 15A-1343.2(d)(1) (2013) provides that a

defendant     who   is   sentenced   to     community     punishment   for   a

misdemeanor shall be placed on probation for no less than 6

months and no more than 18 months, unless the trial court enters

specific findings that longer or shorter periods of probation

are necessary.        This Court has remanded for resentencing where

the trial court violated section 15A–1343.2(d)(1) by entering a

period of probation longer than 18 months without making the

necessary findings that the extension was necessary. See State

v. Love, 156 N.C. App. 309, 317–18, 576 S.E.2d 709, 714 (2003)

(remanding for either reduction of the defendant’s probation to

the statutory length or entry of specific findings as to why a

longer period of probation was necessary); see also State v.

Branch, 194 N.C. App. 173, 179, 669 S.E.2d 18, 22 (2008).               Thus,

pursuant to Love and Branch, we remand for entry of specific

findings by the trial court indicating why a longer probationary

period is necessary or reduction of defendant’s probation to a

length of time authorized by section 15A-1343.2(d)(1).

                    II. Special Condition of Probation
                                           -5-
       Defendant     next       argues    that   the    trial      court      abused    its

discretion by entering a special condition of probation that

defendant may not be “employed in any type of law enforcement”

while    on   probation.          After    careful      review,     we     dismiss      this

argument because we are without authority to review it.

       “The jurisdiction of the Court of Appeals is limited to

that    which    ‘the    General       Assembly     may      prescribe.’”       State    v.

Jones, 161 N.C. App. 60, 61, 588 S.E.2d 5, 7 (2003) (quoting

N.C. Const. art. IV, § 12(2)), rev’d on other grounds, 358 N.C.

473, 598 S.E.2d 125 (2004).                “In North Carolina, 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).         “Furthermore,        there      is   no   federal

constitutional       right       obligating      courts       to   hear       appeals     in

criminal proceedings.” Id. (citing Abney v. United States, 431

U.S. 651, 656, 52 L. Ed. 2d 651, 657 (1977)).

       Defendant purports to have a right to appeal the                              trial

court’s imposition of a special condition of probation pursuant

to     N.C.   Gen.      Stat.     §§     7A-27(b)      and    15A-1444(a2)         (2013).

However, neither statute confers a right to appeal here.

       First, section 7A-27(b) explicitly excludes from its right

of appeal those cases where a final judgment is entered based on
                                            -6-
a guilty plea.       See N.C. Gen. Stat. § 7A-27(b)(1) (2013); State

v. Mungo, 213 N.C. App. 400, 401, 713 S.E.2d 542, 543 (2013)

(“N.C. Gen. Stat. §             7A–27(b) does not provide a route for

appeals   from     guilty    pleas.”)             Because   defendant      entered     an

Alford plea, and “[a]n Alford plea is to be treated as a guilty

plea   and   a    sentence      may    be    imposed     accordingly,”         State   v.

Alston,   139     N.C.   App.    787,       792,   534   S.E.2d    666,    669   (2000)

(citation and quotation marks omitted), he does not have a right

of appeal pursuant to section 7A-27.

       Second,    defendant’s         reliance      on   section   15A-1444(a2)        is

misplaced.       This statute provides that:

             (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  level
                   under G.S. 15A-1340.21;

                   (2)   Contains  a  type  of   sentence
                   disposition that is not authorized by
                   G.S. 15A-1340.17 or G.S. 15A-1340.23
                   for the defendant’s class of offense
                   and prior record or conviction level;
                   or

                   (3) Contains a term of imprisonment
                   that is for a duration not authorized
                   by G.S. 15A-1340.17 or G.S. 15A-1340.23
                                        -7-
                 for the defendant’s class of offense
                 and prior record or conviction level.


N.C. Gen. Stat. § 15A-1444(a2) (2013).              Defendant’s challenge to

the trial court’s imposition of a special condition of probation

does not fall under the provisions of this subsection.                   Rather

than contesting the judgment on any ground enunciated in section

15A-1444(a2), defendant asserts that the trial court abused its

discretion by entering a special condition of probation which

unduly burdens his livelihood.                Because this challenge to the

court’s judgment is not enunciated in section 15A-1444(a2), this

statute does not confer a right to appeal.

      Furthermore,   we    have    no    authority    to    issue   a   writ   of

certiorari to reach these issues in lieu of a statutory right to

appeal.   Although section 15A-1444(e) states that a defendant

who   pleads   guilty     to   a   criminal      charge    “may   petition     the

appellate division for review by writ of certiorari” where he

otherwise does not have a statutory right of appeal, this Court

is restricted in its authority to issue a writ of certiorari by

Rule 21 of the North Carolina Rules of Appellate Procedure.

Under Rule 21(a)(1),

           The writ of certiorari may be issued in
           appropriate    circumstances    by    either
           appellate court to permit review of the
           judgments and orders of trial tribunals when
                                      -8-
            the right to 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
            pursuant to N.C.G.S. § 15A-1422(c)(3) of an
            order of the trial court denying a motion
            for appropriate relief.

N.C.   R.   App.    P.   21(a)(1)   (2013).   The   relationship   between

section 15A-1444(e) and Rule 21 was specifically addressed by

this Court in Jones.

            Where a defendant has no appeal of right,
            our statute provides for defendant to seek
            appellate review by a petition for writ of
            certiorari. N.C. Gen. Stat. § 15A–1444(e).
            However, our appellate rules limit our
            ability to grant petitions for writ of
            certiorari to cases where: (1) defendant
            lost his right to appeal by failing to take
            timely    action;     (2)   the    appeal    is
            interlocutory; or (3) the trial court denied
            defendant’s motion for appropriate relief.
            N.C.   R.   App.   P.   21(a)(1)   (2003).   In
            considering appellate Rule 21 and N.C. Gen.
            Stat. § 15A–1444, this Court reasoned that
            since the appellate rules prevail over
            conflicting    statutes,    we   are    without
            authority to issue a writ of certiorari
            except as provided in Rule 21.

Jones, 161 N.C. App. at 63, 588 S.E.2d at 8 (citing State v.

Nance, 155 N.C. App. 773, 775, 574 S.E.2d 692, 693-94 (2003);

State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002)).

       Here, none of the provisions of Rule 21(a)(1) have been

triggered to confer authority on this Court to issue a writ of

certiorari.        First, defendant did not lose a right of appeal by
                                             -9-
failing to take timely action because: (1) as discussed above,

he has no right to appeal the special condition of probation,

and   (2)    he    otherwise      filed    and     perfected    his    appeal     of   the

statutory     violation      addressed        in   issue    I   above   in    a   timely

manner.      Second, this appeal is from a final judgment made by

the trial court and is therefore not interlocutory.                          Third, the

appeal does not stem from a denial of a motion for appropriate

relief.

       Therefore, we are without authority to review, either by

right   or    by    certiorari,        the    trial    court’s    imposition       of   a

special condition of probation.1

                                       Conclusion

       Because the trial court violated section 15A-1343.2(d)(1)

by failing to enter specific findings of fact as to why a longer

probationary        period     than       that     prescribed     by    statute        was

necessary, we remand for resentencing.                     Defendant’s argument as

to    the    imposition      of    a   special      condition     of    probation       is

dismissed.




1
  We note that defendant filed this appeal before exhausting all
of his potential remedies at the trial level.    Had he filed a
motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-
1415 (2013), the trial court may have altered the challenged
condition of probation.
                         -10-
REMANDED; DISMISSED IN PART.

Judges MCGEE and ELMORE concur.
