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2015-10

State v. BiddixÂ , 776 S.E.2d 880 ( 2015 )

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               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. -5- 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.
-7-
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 5

45, 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
- 10 -
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.
- 11 -
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,