An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-856
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Guilford County
                                              No. 11 CRS 69355
STEVYN JAMAL DILWORTH



      Appeal by defendant from judgment entered 24 April 2012 by

Judge A. Robinson Hassell in Guilford County Superior Court.

Heard in the Court of Appeals 7 April 2014.


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

      Guy J. Loranger for defendant-appellant.


      ELMORE, Judge.

                                 I. Background

      Defendant was found guilty of simple assault in Guilford

County District Court on 7 July 2011.                He appealed to superior

court and pled guilty to the offense on 24 April 2012.                          The

trial court sentenced defendant as a prior conviction level III

to imprisonment for a term of forty-five days.                 His sentence was
                                        -2-
suspended, and defendant was placed on unsupervised probation

for twelve months.      Defendant appeals.



                                   II. Analysis

a.) Writ of Certiorari

      We first note that the State filed a motion to dismiss the

appeal on 26 September 2013 on the grounds that defendant could

not raise any appealable issue pursuant to N.C. Gen. Stat. §

15A-1444 (2013).        Defendant filed a response to the motion to

dismiss and a petition for writ of certiorari.                 In its response

brief to defendant’s writ of certiorari, the State additionally

noted a basis for dismissal of the appeal in that defendant’s

“handwritten notice of appeal failed to designate the judgment

or order from which appeal was taken[.]”              While we disagree with

the   State’s    contention    that     defendant     could    not    raise    any

appealable issue, we agree that since defendant’s appeal was

defective, no proper timely notice of appeal was given, and thus

the appeal should be dismissed.           However, this Court may, in its

discretion,     issue   a   writ   of    certiorari    “when    the    right   to

prosecute an appeal has been lost by failure to take timely

action[.]”      N.C.R. App. P. 21(a)(1).        Thus, in our discretion,

we allow defendant’s petition.            See State v. Gardner, ___ N.C.
                                        -3-
App. ___, ___, 736 S.E.2d 826, 829 (2013) (“[T]his Court has

generally granted certiorari under N.C.R. App. P. 21(a)(1) when

a defendant has pled guilty, but lost the right to appeal the

calculation of her prior record level through failure to give

proper oral or written notice.”)

b.) Prior Conviction Level

       Defendant     first   argues     that    the    trial    court   erred    by

including a criminal contempt adjudication as a conviction in

determining     defendant’s         prior   conviction       level.     We    find

harmless error as to this issue.

       We review de novo a trial court’s assignment of a prior

conviction level.       State v. Fraley, 182 N.C. App. 683, 691, 643

S.E.2d 39, 44 (2007).           We apply harmless error analysis to a

trial court’s erroneous calculation thereof.                   State v. Lindsay,

185    N.C.   App.   314,    316,    647    S.E.2d    473,   474   (2007).      The

determination of the prior conviction level of a misdemeanant is

made    by    calculating     the     number    of     the     offender’s    prior

convictions that the trial court finds proven in accordance with

N.C. Gen. Stat. § 15A-1340.21(c).                     N.C. Gen. Stat. § 15A-

1340.21 (2013).       The trial court may place the offender at one

of the following three levels based upon the number of prior

convictions of either a felony or misdemeanor offense: (1) Level
                                    -4-
I if the offender has zero prior convictions; (2) Level II if

the offender has at least one but not more than four prior

convictions; or (3) Level III if the offender has five or more

convictions.    N.C. Gen. Stat. § 15A-1340.21(b).           If an offender

is convicted of more than one offense in a single session of

district court,    or single week of superior court or foreign

jurisdiction court, then only one of the convictions may be used

to determine the prior conviction level.         N.C. Gen. Stat. § 15A-

1340.21(d).

       Defendant’s counsel stipulated to seven prior convictions

listed on the sentencing worksheet, including a conviction for

criminal contempt.       Of those seven, two are deducted pursuant to

N.C. Gen. Stat. § 15A-1340.21 because they occurred during the

same session of court as another conviction.             Of the remaining

five   convictions,   defendant    only   challenges     inclusion   of   the

conviction for criminal contempt.         Defendant’s challenge is well

taken because we have held that an adjudication of criminal

contempt is not a conviction of a crime and is not includable as

a   prior   conviction    for   sentencing   purposes.      See   State   v.

Reaves, 142 N.C. App. 629, 636, 544 S.E.2d 253, 258 (2001).

Deduction of the improperly included offense reduces defendant’s

total number of prior convictions to four, and thus defendant
                                        -5-
should    have   been    classified     as     a    Prior    Conviction      Level    II

instead of III.

    Having       concluded      that    the        trial    court    erred    in     its

determination of the prior conviction level, we must now decide

whether the error is harmless.                We have held that an error in

the calculation of felony prior record level points is harmless

or not prejudicial if the sentence imposed by the trial court is

within the range established for the correct prior record level.

See State v. Ledwell, 171 N.C. App. 314, 321, 614 S.E.2d 562,

567 (2005), cert. dismissed, ___ N.C. ___, 699 S.E.2d 639, cert.

denied, ___ N.C. ___, 702 S.E.2d 503 (2010)                         (defendant,      who

should have been sentenced at a prior record level of V for a

Class C felony,         “suffered no prejudice, as his sentence was

within the range for a Class C level V felon”).                      Simple assault

is a Class 2 misdemeanor.              N.C. Gen. Stat. § 14-33(a) (2013).

For a Class 2 misdemeanor conviction, a Level II offender may be

subject    to    a   sentence     of    1-45       days     community/intermediate

punishment whereas a Level III offender may be subject to a

sentence of 1-60 days community/intermediate/active punishment.

See N.C. Gen. Stat. § 15A-1340.23(c) (2013).                          The suspended

sentence of 45 days imposed by the trial court falls within the
                                         -6-
punishment    range    permitted        for    the   lesser    conviction      level.

Thus, defendant has not been prejudiced.

c.) Ineffective Assistance of Counsel

       We   next    turn   to   defendant’s       claim     that    he   was   denied

effective assistance of counsel because the record “suggests”

counsel failed to properly advise defendant of the risks and

consequences       surrounding    his    plea.       The    State    contends     that

defendant does not have a right to raise this claim on direct

appeal from a judgment entered upon a guilty plea.                         We agree

with the State.

       “[A] defendant who has entered a plea of guilty is not

entitled to appellate review as a matter of right, unless the

defendant is appealing sentencing issues or the denial of a

motion to suppress, or the defendant has made an unsuccessful

motion to withdraw the guilty plea.”                   State v. Pimental, 153

N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356

N.C.   442,    573    S.E.2d     163    (2002).            Defendant’s    claim    of

ineffective assistance of counsel does not involve a sentencing

issue and does not derive from a motion to suppress or motion to

withdraw the guilty plea. Thus, he does not have a right to

raise this claim on appeal.               See State v. Jamerson, 161 N.C.

App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003).
                                        -7-
    Assuming,      arguendo,     that    defendant        could    petition      this

Court   for   a   writ   of   certiorari       to   consider      this   issue,    we

decline in our discretion to issue the writ.                      We dismiss this

claim without prejudice to defendant’s right to raise it by a

motion for appropriate relief filed in the trial court.

                               III. Conclusion

    In    sum,    the    trial   court        committed    harmless      error     by

including a criminal contempt adjudication as a conviction in

determining defendant’s prior conviction level.                      Moreover, we

dismiss   defendant’s     ineffective         assistance    of     counsel    claim

because he does not have a right to raise this issue on direct

appeal from a judgment entered upon a guilty plea.

    No prejudicial error.

    Judges McGEE and DAVIS concur.

    Report per Rule 30(e).
