Criminal Practice — Certiorari – MAR – Guilty Plea – Acceptance Procedures

State v. McGee (Lawyers Weekly No. 15-07-1138, 11 pp.) (John Tyson, J.) Appealed from Forsyth County Superior Court (L. Todd Burke, J.) N.C. App.

Holding: Defendant argues that the trial court violated G.S. §§ 15A-1023(b) and 15A-1024 when it altered the terms of his plea agreement but declined to grant him a continuance. G.S. § 15A-1027 provides, “Noncompliance with the procedures of this Article (“Procedures Relating to Guilty Pleas in Superior Court”) may not be a basis for review of a conviction after the appeal period for the conviction has expired.” Defendant waited more than seven years to file his motion for appropriate relief; consequently, the trial court’s alleged noncompliance with G.S. § 15A-1023(b) and/or § 15A-1024 may not be a basis for review of defendant’s sentence.

We dismiss defendant’s petition for certiorari.

This court’s Aug. 27, 2014, order allowing defendant’s petition, more than seven years after sentence was imposed, did not include the question of whether the trial court violated § 15A-1023(b) and/or § 15A-1024 to be properly before this court through certiorari review. Reading this court’s Aug. 27, 2014, order to allow review of alleged procedural violations during defendant’s plea hearing would contravene both § 15A-1027 and State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004). Both the statute and Rhodes make it pellucidly clear that an alleged violation of a procedural rule found in G.S. Ch. 15A, Art. 58 may only be mounted during “the appeal period” and not through a collateral attack after such period expired.

Defendant failed to assert any permissible argument in his brief on appeal, which was allowed by this court’s Aug. 27, 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. The state’s motion to dismiss is allowed.