              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-722

                              Filed: 15 December 2015

Forsyth County, No. 07 CRS 22500, 37901, 53099, 53100-01, 62549; 08 CR 053753-
54, 053697

STATE OF NORTH CAROLINA

             v.

LAWRENCE KEITH McGEE


      Appeal by defendant by writ of certiorari from order entered 8 July 2014 by L.

Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 19

November 2015.


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

      Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Jillian
      C. Katz, for defendant-appellant.


      TYSON, Judge.


      Lawrence Keith McGee’s (“Defendant”) petition for a writ of certiorari from the

trial court’s denial of his motion for appropriate relief (“MAR”) was allowed.

Defendant’s argument he now asserts was not set forth in his petition and cannot be

reviewed within the scope allowed by this Court’s 27 August 2014 order issuing the

writ of certiorari. We dismiss Defendant’s writ.

                                   I. Background
                                   STATE V. MCGEE

                                   Opinion of the Court



      On 12 May 2008, Defendant appeared in Forsyth County Superior Court and

pleaded guilty to eighteen felonies: (1) six counts of breaking and entering; (2) three

counts of larceny after breaking and entering; (3) two counts of driving while

intoxicated (“DWI”); (4) one count of attempted breaking and entering a building; (5)

one count of attempted larceny; (6) one count of possession of stolen goods or property;

(7) one count of possession of burglary tools; (8) one count of eluding arrest; (9) one

count of driving while license revoked (“DWLR”); and (10) one count of eluding arrest

with two aggravating factors.      Defendant also pleaded guilty to two counts of

attaining the status of a habitual felon.       The charges, which resulted from five

separate incidents, were consolidated by the court for judgment.

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

pursuant to N.C. Gen. Stat. § 15A-1022. Defendant stated his attorney had explained

all of the charges to him. Defendant also acknowledged he understood how his

habitual felon status charges affected sentencing in each of the predicate felonies to

which they applied. The Court informed Defendant of the mandatory minimum and

the possible maximum punishment for each of the charged offenses.

      Under the plea arrangement, fifteen of the eighteen charges, with the

exception of the two DWI charges and the DWLR charge, were consolidated for

judgment. Defendant was to be sentenced at the minimum of the presumptive range

as a habitual felon for those charges. The two DWI and single DWLR charges were



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                                  Opinion of the Court



to be consolidated and the sentence imposed would run consecutively with the other

sentence.

      After listening to the State’s factual basis for the plea, Judge William Z. Wood

expressed reservations with the plea arrangement, and stated he was “not sure eight

years is enough” for the number and seriousness of the offenses charged. In response,

the prosecutor pointed out the presumptive range for Defendant’s sentence under the

plea arrangement would be a minimum of 135 months imprisonment. Judge Wood

responded “Okay. Thank you. I can stand that. Okay.”

      After considering the plea and conducting a colloquy with one of Defendant’s

victims in open court, the following conversation took place between the court,

Defendant’s counsel, and Defendant:

             THE COURT: . . . well, if you-all want to go to the top of
             the presumptive, I’ll do that. That’s 168 to 211. If you need
             a little while to talk about it, that’s fine.

             [Defendant’s counsel]: Your Honor, there’s nothing I can
             talk to my client about. He’s sat here and heard everything.
             It’s his decision. If he wants more time to think about it --

             THE COURT: I know. If he needs a minute to think about
             it. It’s his life. I’m not going to – one way or the other.

             THE DEFENDANT: I would like to have time to talk to my
             wife about it, if that’s okay.

             THE COURT: Sure. Where is she?

             THE DEFENDANT: I’ll have to -- she'll come visit me in
             jail tonight.


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                                  Opinion of the Court




             THE COURT: No. I won’t be here tomorrow.

             THE DEFENDANT: Oh. I guess I ain’t (sic) got much
             choice.

             THE COURT: No. You got a choice. If you want to think
             about it a minute, we’ll do the next case and then come back
             to it. I think that’s fair.

Following this colloquy, the Court took a six-minute recess during which Defendant

and his counsel discussed the new plea offer. After recess, Defendant agreed to the

new plea offer and signed the modification.

      The modification to Defendant’s plea arrangement states: “Defendant agrees

to the modifying (sic) the agreement to sentence the Defendant on the top of the

presumptive range as a habitual felon.” Consistent with the modification to the plea

arrangement and as announced during the later colloquy with Defendant, the trial

court sentenced Defendant to a minimum of 168 months and a maximum of 211

months imprisonment. Defendant failed to pursue a direct appeal.

      Over seven years later on 28 March 2014, Defendant filed an MAR in the

Forsyth County Superior Court. On 8 July 2014, the court denied Defendant’s MAR.

On 11 August 2014, Defendant filed a Petition for Writ of Certiorari with this Court.

      On 27 August 2014, this Court allowed Defendant’s petition, “to permit

appellate review” of the trial court’s denial of Defendant’s MAR. This Court’s order

specifically states: “The scope of the appeal shall be limited to the issues raised in

petitioner’s 28 March 2014 motion for appropriate relief.”

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                                     Opinion of the Court



                                          II. Issue

       Defendant argues the trial court erred in denying his MAR. He asserts his

MAR should have been granted, because the trial court failed to follow the procedural

requirements mandated by N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 (2013) in

accepting his guilty plea.

                                   III. Motion to Dismiss

       The State filed a motion to dismiss this appeal.         The motion asserts

Defendant’s arguments are inconsistent with; fall outside of; and, are not limited to

the scope of review permitted by this Court’s 27 August 2014 order allowing the

petition for writ of certiorari.

                                        A. Analysis

       This Court’s 27 August 2014 order limited the scope of appellate review to “the

issues raised in [Defendant’s] 28 March 2014 [MAR].” In his brief, Defendant argues

the trial court erred in denying his MAR because the sentencing court violated the

procedural requirements of N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 in

accepting his guilty plea. The State contends these arguments are not “issues raised”

in Defendant’s 28 March 2014 MAR. We agree.

                                   1. Defendant’s MAR

       Defendant made various claims in his 28 March 2014 MAR. Among them, and

as relevant here, Defendant alleged:



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                                  Opinion of the Court



             6.     That N.C. Gen. Stat. § 15A-1023(b) states, “Upon
             rejection of the plea arrangement by the judge, the
             defendant is entitled to a continuance until the next
             session of court.” Moreover N.C. Gen. Stat. §15A-1024
             states that, “If at the time of sentencing, the judge for any
             reason determines to impose a sentence other than
             provided for in a plea arrangement between the parties, the
             judge must inform the defendant of that fact and inform
             the defendant that he may withdraw his plea. Upon
             withdrawal, the defendant is entitled to a continuance
             until the next session of court.”

             7.     At no time during the sentencing hearing did the
             Hon. William Z. Wood, Jr. inform [Defendant] of his right
             to a continuance until the next session of court. Instead,
             when asked by [Defendant] for at least a day to think over
             the new plea the Hon William Z. Wood, Jr. stated, “No. I
             won’t be here tomorrow.”. . . [Defendant] in response
             stated, “Oh. I guess I ain’t (sic) got much choice”.

Allegation 10 in Defendant’s MAR is a verbatim recitation of allegation 7, but omits

the last sentence. Based upon these, and other, factual allegations, Defendant’s MAR

claimed his plea was unconstitutional because: (1) it was not knowing, voluntary and

intelligent; and (2) he received ineffective assistance of counsel because his trial

counsel failed to inform him of his right to a continuance. Defendant also claimed his

prior record level was incorrectly assessed.

      Defendant claims the above quoted factual allegations asserted in his MAR

raises the question of whether the trial court violated N.C. Gen. Stat. §§ 15A-1023(b)

and/or 15A-1024 is an “issue presented” by his MAR, and places it within the scope




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                                   Opinion of the Court



of review permitted by this Court's 27 August 2014 order. The General Statutes and

this Court's precedents foreclose such an interpretation of that order.

             2. Violation of N.C. Gen. Stat. §§ 15A-1023(b) or 15A-1024

      N.C. Gen. Stat. §§ 15A-1023 and 15A-1024 are codified within Article 58 of

Chapter 15A of the General Statutes. Article 58 is entitled “Procedures Relating to

Guilty Pleas in Superior Court.” N.C. Gen. Stat. § 15A-1027, another statute located

in Article 58 of Chapter 15A, is entitled “Limitation on collateral attack on

conviction,” and provides: “Noncompliance with the procedures of this Article may

not be a basis for review of a conviction after the appeal period for the conviction has

expired.” N.C. Gen. Stat. § 15A-1027 (2013).

      Pursuant to N.C. Gen. Stat. § 15A-1027, the trial court’s alleged noncompliance

with N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 may not be a basis for review of

Defendant’s sentence after “the appeal period” has expired. See State v. Rhodes, 163

N.C. App. 191, 194, 592 S.E.2d 731, 733 (2004) (noting N.C. Gen. Stat. § 15A-1027

“expresses the General Assembly’s intent to permit review of procedural violations

only during ‘the appeal period.’”). Our Supreme Court has stated that a MAR is a

collateral attack on a conviction. See State v. Handy, 326 N.C. 532, 536, 391 S.E.2d

159, 161 (1990) (citations omitted) (noting “[a] motion to withdraw a guilty plea made

before sentencing is significantly different from a post-judgment or collateral attack

on such a plea, which would be by a motion for appropriate relief”).



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                                   STATE V. MCGEE

                                  Opinion of the Court



      In this case, Defendant pleaded guilty on 12 May 2008. Pursuant to Rule 4(a)

of the North Carolina Rules of Appellate Procedure, Defendant was permitted

fourteen days from the entry of judgment to file a direct appeal or a motion for

appropriate relief to be considered filed during the appeal period:

             (a) Manner and time. Any party entitled by law to appeal
             from a judgment or order of a superior or district court
             rendered in a criminal action may take appeal by
                   (1) giving oral notice of appeal at trial, or
                   (2) filing notice of appeal with the clerk of superior
                   court and serving copies thereof upon all adverse
                   parties within 14 days after entry of the judgment or
                   order or within 14 days after a ruling on a motion for
                   appropriate relief made during the 14-day period
                   following entry of the judgment or order.

N.C. R. App. P. 4(a) (2008). The “appeal period” in Defendant’s case expired on or

about 27 May 2008. Defendant is barred by statute and precedents from collaterally

attacking the judgment entered on the basis of alleged noncompliance with the

procedural rules set forth in Article 58 of Chapter 15A of the General Statutes. N.C.

Gen. Stat. § 15A-1027. This Article includes both N.C. Gen. Stat. §§ 15A-1023 and

15A-1024.

      This reading of N.C. R. App. P. 4 and the phrase “the appeal period” is

reinforced by this Court’s holding in State v. Webber, 190 N.C. App. 649, 660 S.E.2d

621 (2008). In Webber, the defendant was found guilty of various offenses on 26 and

30 January 2006. Id. at 650, 660 S.E.2d at 621. On 8 February 2006, defendant filed

a MAR alleging juror misconduct. Id. at 650, 660 S.E.2d at 622. On 19 February


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                                  STATE V. MCGEE

                                  Opinion of the Court



2007, “[o]ver a year later,” defendant’s MAR was called for a hearing. Id. At the

hearing, defendant “withdrew his MAR, having been unable to substantiate any juror

misconduct, and orally entered notice of appeal.” Id.

      Citing to N.C. R. App. P. 4(a), the Court in Webber found it lacked jurisdiction.

Id. The Court noted defendant failed to give oral notice of appeal within fourteen

days of conviction, and failed to give a written notice of appeal within the allowed

fourteen-day window. Id. at 651, 660 S.E.2d at 622. The Court also found that there

was no ruling entered on defendant’s MAR, notwithstanding whether it was filed

within 14 days of entry of judgment. Id. The Court concluded: “Defendant’s oral

notice of appeal after withdrawal of his MAR was given on 19 February 2007, more

than one year after the fourteen[-]day appeal period had ended.” Id.

      In this case, Defendant’s MAR was filed more than seven years after the 14

day appeal period allowed by N.C. R. App. P. 4. Since the MAR was filed outside the

appeal period, it is a collateral attack, and Defendant’s argument is barred by N.C.

Gen. Stat. § 15A-1027.

      This Court’s 27 August 2014 order allowing Defendant’s petition, over seven

years after sentence was imposed, did not include the question of whether the trial

court violated N.C. Gen. Stat. §§ 15A-1023(b) and/or 15A-1024 to be properly before

this Court through certiorari review. Reading this Court’s 27 August 2014 order to

allow review of alleged procedural violations during Defendant’s plea hearing would



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                                    Opinion of the Court



contravene both N.C. Gen. Stat. § 15A-1027 and our precedent in Rhodes. Both the

statute and Rhodes makes it pellucidly clear that an alleged violation of a procedural

rule found in Article 58 of Chapter 15A of the General Statutes may only be mounted

during “the appeal period,” and not through a collateral attack after such period

expired. N.C. Gen. Stat. § 15A-1027 (“Noncompliance with the procedures of this

Article may not be a basis for review of a conviction after the appeal period for the

conviction has expired”); Rhodes, 163 N.C. App. at 194, 592 S.E.2d at 733. The law

“does not permit parties to swap horses between courts in order to get a better mount”

on appeal. Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934).

                           3. Statutory Right of Continuance

      Our holding does not diminish a trial court’s duty, pursuant to N.C. Gen. Stat.

§§ 15A-1023 and 15A-1024, to grant a continuance until the next session of court,

following the rejection by the trial court of a guilty plea or the imposition of a sentence

other than provided for in a plea arrangement. N.C. Gen. Stat. § 15A-1023(b) (“Upon

rejection of the plea arrangement by the judge the defendant is entitled to a

continuance until the next session of court.”); N.C. Gen. Stat. § 15A-1024 (“Upon

withdrawal [of a guilty plea], the defendant is entitled to a continuance until the next

session of court.”). Nor does this holding diminish a defendant’s ability to pursue

appellate review, in open court or during “the appeal period,” of the trial court’s




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                                  Opinion of the Court



alleged violations of the procedural requirements found in Article 58 of Chapter 15A

of the General Statutes.

                                   IV. Conclusion

      Defendant failed to assert any permissible argument in his brief on appeal,

which was allowed by this Court’s 27 August 2014 order granting a writ of certiorari.

Defendant made no argument in his brief to this Court regarding (1) ineffective

assistance of trial counsel; (2) constitutional violations regarding the knowing,

voluntary, or intelligent nature of his plea; or (3) prior record level assessment. We

deem those arguments abandoned. N.C. R. App. P. 28(b)(6). The State’s motion to

dismiss is allowed.

      DISMISSED.

      Judges STROUD and DIETZ concur.




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