               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA 15-161

                                Filed: 6 October 2015

Catawba County, No. 13 CRS 2878-79; 50847

STATE OF NORTH CAROLINA

             v.

MARK ALLAN BIDDIX


      Appeal by defendant from judgment entered 20 May 2014 by Judge Eric L.

Levinson in Catawba County Superior Court. Heard in the Court of Appeals 25

August 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Tarlton Law PLLC, by Raymond C. Tarlton, for defendant-appellant.


      TYSON, Judge.


      Mark Allan Biddix (“Defendant”) appeals from judgment entered following his

plea of guilty to manufacturing methamphetamine, two counts of conspiracy to

manufacture methamphetamine, ten counts of possession of an immediate precursor

chemical used to manufacture methamphetamine, and continuing a criminal

enterprise. Defendant does not have a statutory right to appeal the issue he has

raised. This issue is also not a proper subject for review under a petition for writ of

certiorari. We deny his petition for writ of certiorari and dismiss the appeal.
                                   STATE V. BIDDIX

                                  Opinion of the Court



                                   I. Background

      On 20 May 2014, Defendant appeared before the Catawba County Superior

Court and pled guilty to manufacturing methamphetamine, two counts of conspiracy

to manufacture methamphetamine, ten counts of possession of an immediate

precursor chemical used to manufacture methamphetamine, and continuing a

criminal enterprise.    Defendant also admitted the existence of one statutory

aggravating factor, that “defendant knowingly created a great risk of death to more

than one person by means of a weapon or device which would normally be hazardous

to the lives of more than one person.” This aggravating factor was alleged on one of

the three bills of indictment issued by the grand jury.

      At the plea hearing, the trial court conducted a colloquy with Defendant

pursuant to N.C. Gen. Stat. § 15A-1022. During the colloquy, Defendant stated he

was aware that he was pleading guilty to the fourteen charged felonies and admitting

to the existence of the aggravating factor in exchange for a consolidated, active

sentence. Defendant was informed that the mandatory and minimum punishment

was an active sentence of 58 months, and the maximum punishment was 1,500

months in the Department of Correction. He was also informed that any sentence

actually imposed rested within the discretion of the trial court. Defendant stated he

understood the terms of the plea arrangement.




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                                    STATE V. BIDDIX

                                   Opinion of the Court



      The prosecutor recited the factual basis for the plea to the court. Defendant

stipulated to the factual basis for entry and acceptance of the plea. Defendant and

numerous other individuals manufactured methamphetamine inside a residence in

the town of Long View, North Carolina.          A search warrant was issued for the

residence. Upon execution of the search, law enforcement discovered an operational

methamphetamine lab. Chemicals used in the manufacturing of methamphetamine,

such as pseudoephedrine and lithium, were found inside the residence. Defendant

was responsible for the manufacturing of the drug. Following the State’s recitation

of the factual basis, defense counsel stated to the court:

             [Defendant] understands how dangerous it was. He
             understands the aggravating factors that have been
             presented. He understands the danger that he presented
             to others and himself and he’s asking the Court to accept
             the active sentence on the Class C and to consider in
             mitigation that he cooperated when he was asked and that
             . . . his felony record is non-existent up until this point.

      Under the “Plea Arrangement” section on the Transcript of Plea form, the

document states, “SEE ATTACHED PLEA ARRANGEMENT.” A document entitled

“Plea Arrangement” is attached to the Transcript of Plea. The document states:

             The defendant shall plead guilty to the charges listed in the
             “Pleas” section on the Transcript of Plea. The defendant
             stipulates that he is a prior record level III with 6 prior
             points for felony sentencing purposes. The State does not
             oppose a consolidated active sentence judgment which
             shall be in the discretion of the Court.




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                                  STATE V. BIDDIX

                                 Opinion of the Court



             In exchange for this plea and the State not seeking
             aggravating factors that may apply to this case, the
             defendant expressly waives the right to appeal the
             conviction and whatever sentence is imposed on any
             ground, including any appeal right conferred by Article 91
             of the Criminal Procedure Act, and to further waive any
             right to contest the conviction or sentence in any post-
             conviction proceeding under Articles 89 and 92 of the
             Criminal Procedure Act, excepting the defendant’s right to
             appeal for (1) ineffective assistance of counsel, (2)
             prosecutorial misconduct, (3) a sentence in excess of the
             statutory maximum, and (4) a sentence based on an
             unconstitutional factor, such as race, religion, national
             origin, or gender.

             This plea agreement shall be revocable by the State upon
             defendant’s filing of an appeal and the defendant hereby
             expressly waives his statutory rights that may apply under
             15A-1335. (Emphasis supplied)

      The “Plea Arrangement” document is dated 20 May 2014, the day of

Defendant’s plea hearing, and is signed by Defendant, defense counsel, and the

assistant district attorney.

      At the plea hearing, the trial court did not address the language of the “Plea

Arrangement” under which the State agreed to refrain from seeking aggravating

factors that may apply to this case. The court determined defendant’s plea was

entered voluntarily. “Consistent with the arrangement and recommendation,” the

court consolidated Defendant’s fourteen convictions into one Class C felony judgment.

The court found the existence of one aggravating factor and one mitigating factor, as

stipulated by Defendant. The court determined the factor in aggravation outweighed



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                                   STATE V. BIDDIX

                                  Opinion of the Court



the factor in mitigation, and sentenced defendant within the aggravated range to a

minimum of 100 and a maximum of 132 months in prison. No objection or question

was raised before the trial court to challenge the sentence imposed.        Defendant

appeals.

                                      II. Issues

      Defendant argues the trial court erred by accepting his guilty plea as a product

of his informed choice, where the terms of Defendant’s written plea agreement are

contradictory.

                                 III. Right of Appeal

      The State has filed a motion to dismiss Defendant’s appeal, and argues two

separate grounds in support of dismissal: (1) Defendant has no statutory right to

appeal from his guilty plea; and, (2) Defendant failed to give timely notice of appeal.

We agree that Defendant does not have a statutory right to appeal from the conviction

entered upon his guilty plea.

      Absent statutory authority, a defendant does not have a right to appeal from

judgment entered upon his conviction. State v. Pimental, 153 N.C. App. 69, 72, 568

S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). A criminal

defendant’s right to appeal in a criminal proceeding is entirely a creation of state

statute. Id. The North Carolina General Statutes must specifically set forth the right

for a criminal defendant to appeal. Id.



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                                    STATE V. BIDDIX

                                   Opinion of the Court



                            A. N.C. Gen. Stat. § 15A-1444

      N.C. Gen. Stat. § 15A-1444 governs a defendant’s right to appeal from

judgment entered upon a guilty plea. A defendant who has entered a plea of guilty

or no contest 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 his prior record

level; (2) contains a type of sentence disposition that is not statutorily authorized for

his class of offense and prior record level; or (3) contains a term of imprisonment that

is not statutorily authorized for his class of offense and prior record level. N.C. Gen.

Stat. § 15A-1444(a2) (2013). The statute further provides:

             (e) Except as provided in subsections (a1) and (a2) of this
             section and G.S. 15A-979 [pertaining to appeals from
             motions to suppress], and except when a motion to
             withdraw a plea of guilty or no contest has been denied, 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. . . .

N.C. Gen. Stat. § 15A-1444(e) (2013).

      The issue Defendant has raised on appeal pertaining to the voluntariness of

his guilty plea is not listed as a ground for appeal in N.C. Gen. Stat. § 15A-1444.

Defendant has cited subsection (e) and petitioned this Court to issue the writ of

certiorari to review the merits of his appeal. Defendant’s petition for writ of certiorari

was filed contemporaneously with his brief.

                                 B. Appellate Rule 21


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                                    STATE V. BIDDIX

                                   Opinion of the Court



      Rule 21 of the North Carolina Rules of Appellate Procedure provides:

             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 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).

      N.C. Gen Stat. § 15A-1444(e) states a defendant who enters a guilty plea may

seek appellate review through a petition for writ of certiorari. However, Appellate

Rule 21 only permits our Court to issue the writ of certiorari upon a showing that one

of the three circumstances set forth in the Rule exists.

       The relationship between Appellate Rule 21 and N.C. Gen. Stat. §15A-1444

has been addressed by our Court on many occasions.

             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.




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                                    STATE V. BIDDIX

                                   Opinion of the Court



State v. Jones, 161 N.C. App. 60, 63, 588 S.E.2d 5, 8 (2003) (citations omitted); see

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

does not have a right to appeal the issue presented here under G.S. § 15A-1444(a)(a1)

or (a)(a2), and this Court is without authority under N.C. R. App. P. 21(a)(1) to issue

a writ of certiorari); State v. Jamerson, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547

(2003) (where defendant entered a guilty plea, this Court is “without authority to

review either by right or by certiorari the trial court’s denial of defendant’s motion to

dismiss the habitual felon indictment or defendant’s assertion the judgment violates

his constitutional rights”); State v. Dickson, 151 N.C. App. 136, 138, 564 S.E.2d 640,

641 (2002) (this Court is without authority to issue writ of certiorari where the

defendant had no statutory right to appeal from his guilty plea, and had not failed to

take timely action, is not attempting to appeal from an interlocutory order, and is not

seeking review pursuant to N.C. Gen. Stat. § 15A-1422(c)(3)); accord State v. Sale, __

N.C. App. __, ___, 754 S.E.2d 474, 477-78 (2014); State v. Mungo, 213 N.C. App. 400,

404, 713 S.E.2d 542, 545 (2011); State v. Smith, 193 N.C. App. 739, 742, 668 S.E.2d

612, 614 (2008); State v. Hadden, 175 N.C. App. 492, 497, 624 S.E.2d 417, 420, cert.

denied, 360 N.C. 486, 631 S.E.2d 141 (2006).

      Defendant cites cases in which panels of our Court have elected to issue the

writ of certiorari to review issues pertaining to entry of the defendant’s guilty plea,

even though the defendant had no statutory right to appeal under N.C. Gen. Stat. §



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                                   STATE V. BIDDIX

                                   Opinion of the Court



15A-1444. See, e.g., State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004) (holding

this Court could issue the writ of certiorari to review the defendant’s challenge to the

trial court’s procedures employed in accepting his guilty plea); State v. Demaio, 216

N.C. App. 558, 563-64, 716 S.E.2d 863, 866-67 (2011) (holding this Court could issue

the writ of certiorari to review the defendant’s argument that his plea was not the

product of informed choice); see also State v. Blount, 209 N.C. App. 340, 345, 703

S.E.2d 921, 925 (2011); State v. Keller, 198 N.C. App. 639, 641, 680 S.E.2d 212, 213

(2009); State v. Carriker, 180 N.C. App. 470, 471, 637 S.E.2d 557, 558 (2006); State v.

Carter, 167 N.C. App. 582, 585, 605 S.E.2d 676, 678 (2004).

      In State v. Bolinger, the defendant contended the trial judge violated N.C. Gen.

Stat. § 15A-1022 by accepting his guilty plea. 320 N.C. 596, 601, 359 SE.2d 459, 462

(1987). Our Supreme Court held that “defendant is not entitled as a matter of right

to appellate review of his contention that the trial court improperly accepted his

guilty plea.” Id. at 601, 359 S.E.2d at 462. The Court further held that “[d]efendant

may obtain appellate review of this issue only upon grant of a writ of certiorari.” Id.

Defendant failed to petition the Court for a writ of certiorari, and the Court

nonetheless elected to review the merits of the defendant’s argument. Id.

      In Bolinger, our Supreme Court did not cite nor address Appellate Rule 21.

The Court stated: “Neither party to this appeal appears to have recognized the

limited bases for appellate review of judgments entered upon pleas of guilty. For this



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                                   STATE V. BIDDIX

                                   Opinion of the Court



reason we nevertheless choose to review the merits of defendant’s contention.” Id. In

cases which precede Bollinger, our Supreme Court has specifically stated where there

is a conflict between the General Statutes and the Appellate Rules, the Appellate

Rules control. State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983); State

v. Elam, 302 N.C. 157, 160-61, 273 S.E. 2d 661, 664 (1981).

      Numerous panels of this Court have addressed the issue of whether Rule 21

controls the conflicting provisions contained in N.C. Gen. Stat. § 15A-1444. In cases

which predate both Rhodes and Demaio, this Court has held it does not have the

authority to issue the writ of certiorari unless the defendant has failed to take timely

action, is attempting to appeal from an interlocutory order, or is seeking review of an

order of the trial court denying a motion for appropriate relief. Dickson, 151 N.C. App.

at 138, 564 S.E.2d at 641; Pimental, 153 N.C. App. at 76-77, 568 S.E.2d at 872;

Jamerson, 161 N.C. App. at 529, 588 S.E.2d at 547.

      We are bound by the decisions of our Supreme Court and by prior decisions of

another panel of our Court addressing the same question, unless overturned by an

intervening decision from a higher court. In re Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989). Where apparent inconsistency exists between precedents of this

Court, the oldest controlling case prevails. State v. Harris, __ N.C. App. __, __ S.E.2d

__ (2015 N.C. App. LEXIS 767, filed 15 September 2015).

                                    IV. Conclusion



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                                  STATE V. BIDDIX

                                 Opinion of the Court



      Defendant does not raise any of the issues set forth in N.C. Gen. Stat. § 15A-

1444(a2), and does not have a statutory right to appeal from the judgment entered

upon his guilty plea. The provisions of Rule 21 of the Rules of Appellate Procedure,

which provide the appropriate circumstances for this Court’s issuance of the writ of

certiorari, prevail over § 15A-1444(e). Bennett, 308 N.C. at 535, 302 S.E.2d at 790;

Elam, 302 N.C. at 160-61, 273 S.E.2d at 664; Sale, __ N.C. App. at __, 754 S.E.2d at

477-78.

      Under Appellate Rule 21, the issue Defendant has raised is not appropriate for

the issuance of the writ of certiorari.     We deny Defendant’s petition for writ of

certiorari. We are without authority to review, either by right or by certiorari, the

trial court’s judgment entered upon Defendant’s plea of guilty. Defendant’s appeal is

dismissed.

      DISMISSED.

      Judge BRYANT concurs.

      Judge GEER concurs in a separate opinion.




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 No. COA15-161 – State v. Biddix


      GEER, Judge, concurring in the result only.


      I agree with the majority opinion that defendant has no right to appeal, and I

do not believe that this Court should, in this case, grant review by writ of certiorari.

I cannot, however, agree with the majority’s attempt to effectively overrule decisions

of prior panels of this Court and a decision of the North Carolina Supreme Court.

The majority asserts that State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004),

and State v. Demaio, 216 N.C. App. 558, 716 S.E.2d 863 (2011), are not controlling

authority because they conflict with “decisions of our Supreme Court and by prior

decisions of another panel of our Court addressing the same question[.]”

      In fact, Rhodes was squarely based on a Supreme Court holding that review

pursuant to grant of a writ of certiorari was permissible when the trial court did not

follow required procedures in accepting a guilty plea:

             In [State v.] Bolinger, [320 N.C. 596, 359 S.E.2d 459
             (1987)], the defendant contended that the trial judge
             violated N.C. Gen. Stat. § 15A-1022 (2003) in accepting his
             guilty plea.    Our Supreme Court recognized that a
             challenge to the procedures followed in accepting a guilty
             plea does not fall within the scope of N.C. Gen. Stat. § 15A-
             1444 (2003), specifying the grounds giving rise to an appeal
             as of right.     320 N.C. at 601, 359 S.E.2d at 462.
             Accordingly, the Court held that “defendant is not entitled
             as a matter of right to appellate review of his contention
             that the trial court improperly accepted his guilty plea.”
             Id. The Court further held that “[d]efendant may obtain
             appellate review of this issue only upon grant of a writ of
             certiorari.” Id. Although the defendant had failed to
                                    STATE V. BIDDIX

                             Geer, J., concurring in the result



             petition the Court for a writ of certiorari, the Court
             nonetheless elected to review the merits of the defendant’s
             contentions. Id. at 602, 359 S.E.2d at 462.

                    Under Bolinger, defendant in this case is not entitled
             to appeal from his guilty plea as a matter of right, but his
             arguments may be reviewed pursuant to a petition for writ
             of certiorari.

163 N.C. App. at 193, 592 S.E.2d at 732.

      This Court emphasized: “Although not argued by the State, we note that if

defendant were not challenging the procedures employed in accepting a guilty plea,

the decisions in State v. Dickson, 151 N.C. App. 136, 137-38, 564 S.E.2d 640, 640-41

(2002) and State v. Pimental, 153 N.C. App. 69, 76-77, 568 S.E.2d 867, 872, disc.

review denied, 356 N.C. 442, 573 S.E.2d 163 (2002) would apply.” Id.

      In short, this Court in Rhodes recognized that it was bound by the Supreme

Court’s decision in Bolinger and this Court’s opinions in Dickson and Pimental to the

extent that the latter two opinions did not conflict with Bolinger. Rhodes has since

been cited repeatedly by this Court as controlling authority in cases challenging

guilty plea procedures. See, e.g., State v. Blount, 209 N.C. App. 340, 345, 703 S.E.2d

921, 925 (2011); State v. Keller, 198 N.C. App. 639, 641, 680 S.E.2d 212, 213 (2009);

State v. Carriker, 180 N.C. App. 470, 471, 637 S.E.2d 557, 558 (2006); State v. Carter,

167 N.C. App. 582, 585, 605 S.E.2d 676, 678 (2004). The majority is bound by

Bolinger, Rhodes, and the opinions of other panels of this Court following Bolinger

and Rhodes. Since, however, I do not believe that defendant has made an adequate


                                            -2-
                                  STATE V. BIDDIX

                           Geer, J., concurring in the result



showing under Bolinger and Rhodes to warrant review by certiorari, I respectfully

concur in the result.




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