              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-461

                               Filed: 4 October 2016

Iredell County, Nos. 12 CRS 56461, 56463, 56465, 56467

STATE OF NORTH CAROLINA, Plaintiff,

             v.

HAROLD LEE PLESS, JR., Defendant.


      Appeal by defendant from judgment entered 16 November 2015 by Senior

Resident Judge Joseph N. Crosswhite in Iredell County Superior Court. Heard in the

Court of Appeals 21 September 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Kristin J. Uicker,
      for the State.

      Joseph P. Lattimore for defendant-appellant.


      ZACHARY, Judge.


      Harold Lee Pless, Jr. (defendant) appeals from judgment entered upon his

pleas of guilty to sale of heroin, trafficking in opium, possession of oxycodone with

intent to sell or deliver, and driving while impaired. On appeal, defendant argues

that the terms of the plea bargain required him to be sentenced to a term that was

not authorized under the statutory provisions applicable to the date on which he

committed these offenses. We agree.

                          I. Factual and Procedural Background
                                  STATE V. PLESS

                                 Opinion of the Court



      On 10 December 2012, the Iredell County Grand Jury indicted defendant for

possession with intent to manufacture, sell, or deliver heroin; sale or delivery of

heroin; trafficking by possession and by transportation of twenty-eight grams or more

of opium; possession with intent to manufacture, sell, or deliver oxycodone; sale or

delivery of oxycodone; and driving while impaired. The indictments alleged that

defendant had committed the charged offenses in September and October of 2012.

      On 9 December 2013, defendant pleaded guilty to selling heroin; trafficking by

transportation of more than fourteen but less than twenty-eight grams of opium;

possession with intent to manufacture, sell, or deliver oxycodone; and driving while

impaired. The State dismissed other charges that were pending against defendant

and agreed that defendant would serve a single consolidated sentence of 90 to 120

months for drug trafficking. Sentencing was continued until 21 January 2014.

Defendant failed to appear in court on 21 January 2014 and a warrant was issued for

his arrest. Defendant was later arrested, and appeared in court for sentencing on 16

November 2015.     The trial court entered judgment in accordance with the plea

arrangement. The court sentenced defendant to a term of 60 days imprisonment for

driving while impaired and consolidated the drug convictions into one judgment,

imposing a sentence of 90 to 120 months, to run consecutively to the DWI sentence.

Defendant gave notice of appeal in open court after sentencing.

                              II. Statutory Right to Appeal



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                                      STATE V. PLESS

                                     Opinion of the Court



       Defendant’s sole argument on appeal is that the trial court erred by imposing

a sentence of 90 - 120 months imprisonment. Defendant contends, and the State

concedes, that for drug trafficking offenses committed in September or October of

2012, N.C. Gen. Stat. § 90-95(h)(4)b. required that defendant receive a mandatory

minimum sentence of 90 - 117 months. On 13 July 2016, the State filed a motion for

dismissal of defendant’s appeal, on the grounds that a challenge to the sentence

imposed under § 90-95 is not among the permissible statutory bases pursuant to

which a defendant may appeal following entry of a guilty plea. The State is correct in

its analysis of this issue.

       “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) (citations omitted). A criminal defendant’s right to appeal from

judgment entered upon a plea of guilty is governed by N.C. Gen. Stat. § 15A-1444

(2015), which provides in relevant part that:

              (a2) A defendant who has entered a plea of guilty . . . to a
              felony . . . is entitled to appeal as a matter of right the issue
              of whether the sentence imposed: . . . (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.

       The State argues that N.C. Gen. Stat. § 15A-1444(a2) only allows a defendant

to appeal a sentence whose term was “not authorized by G.S. 15A-1340.17 or G.S.

15A-1340.23,” and that, because defendant’s sentence was governed by N.C. Gen.


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                                     STATE V. PLESS

                                   Opinion of the Court



Stat. § 90-95, rather than § 15A-1340.17 or § 15A-1340.23, he has no statutory right

of appeal. The State is correct that the statute does not include as a basis for appeal

of a sentencing issue, that the sentence was “not authorized by N.C. Gen. Stat. § 90-

95.” Accordingly, we grant the State’s motion to dismiss defendant’s appeal.

                       III. Defendant’s Petition for Writ of Certiorari

      On 27 July 2016, defendant filed a petition for issuance of a writ of certiorari.

N.C. Gen. Stat. § 15A-1444(e) provides that a defendant who “is not entitled to

appellate review as a matter of right when he has entered a plea of guilty . . . may

petition the appellate division for review by writ of certiorari. . . . ” In this case, we

elect to grant defendant’s petition in order to reach the merits of his appeal.

                                        IV. Discussion

      Defendant was sentenced pursuant to N.C. Gen. Stat. § 90-95(h)(4)b., which

currently provides that:

             (h) Notwithstanding any other provision of law, the
             following provisions apply except as otherwise provided in
             this Article. . . .

             (4) Any person who sells . . . transports, or possesses four
             grams or more of opium or opiate . . . shall be guilty of a
             felony which felony shall be known as “trafficking in opium
             or heroin” and if the quantity of such controlled substance
             or mixture involved: . . .

             b. Is 14 grams or more, but less than 28 grams, such person
             shall be punished as a Class E felon and shall be sentenced
             to a minimum term of 90 months and a maximum term of



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                                    STATE V. PLESS

                                   Opinion of the Court



             120 months in the State’s prison and shall be fined not less
             than one hundred thousand dollars ($ 100,000)[.]

      This statute formerly mandated a sentence of 90 - 117 months. However, N.C.

Gen. Stat. § 90-95(h)(4)b. was rewritten effective 1 December 2012, and was made

applicable to offenses committed after that date. 2012 N.C. Sess. Laws 188, § 5.

Because defendant committed the charged offenses in September and October of

2012, he should have been sentenced to 90 - 117 months. The State agrees that the

mandatory term applicable on the date upon which defendant committed these

offenses was 90 - 117 months.

      Defendant has asked this Court to vacate his sentence and return him to “the

same position he was in prior to entering” a plea. The State “agrees with Defendant

that his entire guilty plea should be vacated[,]” citing State v. Rico, 218 N.C. App.

109, 720 S.E.2d 801 (Steelman, J., dissenting), rev’d for reasons stated in dissent, 366

N.C. 327, 734 S.E.2d 571 (2012). In Rico, this Court determined that the trial court

had entered an improper sentence pursuant to defendant’s plea of guilty and

remanded for resentencing. Judge Steelman dissented in part on the grounds that

because the defendant “had elected to repudiate a portion” of the plea arrangement,

the entire plea agreement should be vacated. Rico, 218 N.C. App. at 122, 720 S.E.2d

at 809 (Steelman, J., dissenting). Our Supreme Court reversed “for the reasons

stated in the dissenting opinion[.]” Accordingly, we agree that the judgments entered

against defendant should be vacated.


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                                  STATE V. PLESS

                                 Opinion of the Court



      For the reasons discussed above, we grant the State’s motion to dismiss

defendant’s appeal; grant defendant’s petition for a writ of certiorari; vacate the

judgment entered against defendant pursuant to the plea agreement; and set aside

the plea agreement.

      VACATED.

      Judges ELMORE and ENOCHS concur.




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