              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-331

                              Filed: 15 January 2019

Guilford County, No. 17CRS074729

STATE OF NORTH CAROLINA

             v.

MICHAEL TYRONE MAYO, JR., Defendant.


      Appeal by defendant from judgment entered 6 September 2017 by Judge

Michael D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals

17 October 2018.


      Attorney General Joshua H. Stein, by Associate Attorney General Cara Byrne,
      for the State.

      Warren D. Hynson for defendant-appellant.


      BERGER, Judge.


      On September 6, 2017, Michael Tyrone Mayo, Jr. (“Defendant”) pleaded guilty

to felony fleeing to elude arrest. Defendant was sentenced to an active term of seven

to eighteen months in prison. On September 14, 2017, Defendant filed a written

notice of appeal. Defendant filed a petition for writ of certiorari on May 2, 2018,

seeking appellate review on the entry of a civil judgment against him for attorney’s

fees, and review pursuant to Anders v. California, 386 U.S. 738 (1967) and State v.

Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). We grant Defendant’s petition for writ of
                                    STATE V. MAYO

                                   Opinion of the Court



certiorari, remand for hearing on the issue of attorney’s fees, and dismiss the

remainder of Defendant’s appeal.

                        Factual and Procedural Background

      On June 26, 2017, Defendant was indicted for fleeing to elude arrest by motor

vehicle and for resisting a public officer. Defendant pleaded guilty to felony fleeing

to elude arrest on September 6, 2017. As part of the plea arrangement, other charges

were dismissed.   Defendant stipulated to a prior record level of II, and he was

sentenced to an active term of seven to eighteen months imprisonment. He was also

ordered to pay court costs in the amount of $1,572.50. Defendant filed a notice of

appeal on September 14, 2017.

      On May 2, 2018, Defendant filed a petition for writ of certiorari alleging

Defendant did not have proper notice and opportunity to be heard on the amount of

attorney’s fees and costs. In the same petition, Defendant argued in the alternative

that this Court conduct an independent review of the record pursuant to Anders v.

California and State v. Kinch. Defendant’s counsel also filed a brief with this Court

pursuant to Anders stating that he “has carefully reviewed the transcript, the

superior court file, and relevant law,” and was “unable to identify an issue with

sufficient merit to support a meaningful argument for reversal of [Defendant]’s

conviction.”

                                       Analysis



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                                  Opinion of the Court



      “[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).

Section 15A-1444 of the North Carolina General Statutes provides that

            (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.

            (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 for the defendant’s class of offense and
                   prior record or conviction level.

            ....

            (e) Except as provided in subsections (a1) and (a2) of this
            section and G.S. 15A-979, and except when a motion to


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                                    STATE V. MAYO

                                   Opinion of the Court



             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. If an
             indigent defendant petitions the appellate division for a
             writ of certiorari, the presiding superior court judge may in
             his discretion order the preparation of the record and
             transcript of the proceedings at the expense of the State.

N.C. Gen. Stat. § 15A-1444 (a1), (a2), (e) (2017).

      Defendant’s right of appeal was limited to the grounds set forth in Section 15A-

1444. Because Defendant pleaded guilty, stipulated his prior record level was II, was

sentenced in the presumptive range, and never filed a motion to suppress pursuant

to N.C. Gen. Stat. § 15A-979, he has no right to appeal.

      However, because Defendant filed a petition for writ of certiorari to conduct an

independent review of the record in accordance with Anders v. California and State

v. Kinch, “we will review the legal points appearing in the record, transcript, and

briefs, not for the purpose of determining their merits (if any) but to determine

whether they are wholly frivolous.” Kinch, 314 N.C. at 102-03, 331 S.E.2d at 667.

Further, “we must examine any issue that defendant could have possibly raised.”

State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 197 (1998).

      Counsel for Defendant has been unable to identify any meritorious issue to

support a meaningful argument for reversal of Defendant’s conviction and asks that

this Court conduct its own review of the record for possible prejudicial error. Counsel

has shown to the satisfaction of this Court that he has complied with the

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                                    STATE V. MAYO

                                  Opinion of the Court



requirements of Anders v. California, and State v. Kinch, by advising Defendant of

his right to file written arguments with this Court and providing him with the

documents necessary to do so.

      In his petition for writ of certiorari, Defendant contends that he did not receive

notice and an opportunity to be heard on the amount of attorney’s fees and costs.

After review, we agree.

      A criminal defendant may file a petition for a writ of certiorari to appeal a civil

judgment for attorney’s fees and costs. State v. Friend, ___ N.C. App. ___, ___, 809

S.E.2d 902, 905 (2018). The trial court may enter a civil judgment against an indigent

defendant following his conviction in the amount of the fees incurred by the

defendant’s appointed trial counsel. N.C. Gen. Stat. § 7A-455(b) (2017). Before

entering monetary judgments against indigent defendants for fees imposed by their

court-appointed counsel,

             trial courts should ask defendants—personally, not
             through counsel—whether they wish to be heard on the
             issue. Absent a colloquy directly with the defendant on this
             issue, the requirements of notice and opportunity to be
             heard will be satisfied only if there is other evidence in the
             record demonstrating that the defendant received notice,
             was aware of the opportunity to be heard on the issue, and
             chose not to be heard.

Friend, ___ N.C. App. at ___, 809 S.E.2d at 907 (vacated defendant’s civil judgment

for attorneys’ fees and remanded for further proceedings on that issue).




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                                   Opinion of the Court



        In the present case, nothing in the record indicated that Defendant understood

he had a right to be heard on the issue of attorney’s fees, and the trial court did not

inform Defendant that he had a right to be heard on the issue. The record reflects

that the only mention of attorney’s fees took place when the trial court stated

“attorney’s fees will be reduced to a civil judgment.” Defendant was “not informed of

the total amount of attorney’s fees that would be imposed, nor given an opportunity

to personally address the court.” State v. Morgan, ___ N.C. App. ___, ___, 814 S.E.2d

843, 849 (2018) (vacating defendant’s civil judgment imposing costs and attorneys’

fees and remanded to the trial court). Accordingly, we vacate the civil judgment for

attorney’s fees and remand to the trial court for further proceedings on this issue

only.

                                      Conclusion

        We vacate the civil judgment entered against Defendant by the trial court and

remand for hearing on the issue of attorney’s fees. The remainder of Defendant’s

appeal is dismissed.

        DISMISSED IN PART; VACATED IN PART AND REMANDED IN PART.

        Judges STROUD and DILLON concur.




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