Frаncis Louis Demaio (“Defendant”) appeals from judgments entered on his pleas of guilty to trafficking in opium and obtaining a controlled substance by fraud or forgery. Defendant argues the trial court erred in determining that a factual basis for Defendant’s plea had been establishеd. Defendant further argues the trial court erred in finding that Defendant’s plea was an informed choice made freely, voluntarily, and understandingly.
Recognizing Defendant is not entitled to an appeal as a matter of right on this issue, Defendant filed a petition for writ of certiorari with this Court. On 20 Junе 2011, the State filed a response to Defendant’s petition and a motion to dismiss the appeal. We denied the State’s motion to dismiss and, pursuant to
State v. Bolinger,
I. Factual and Procedural Background
On 23 December 2009, Defendant visited the UNC Hospital emergency room complaining of back pain. After a medical assessment, Dr. Katherine Scott treated Defendant with ten milligrams of oxycodone/APAP, the generic version of Percocet, and prеscribed him six Percocet to relieve his pain until his next primary care physician visit.
On 28 December 2009, Defendant took the prescription to Pittsboro Discount Drugs in Chatham County. The prescription the pharmacist, Dr. Gregory Vassie, received
The next morning, Dr. Vassie listened to a message on the store’s answering machine from an anonymous fеmale caller stating that Defendant had altered the prescription filled by Dr. Vassie the previous day. Dr. Vassie received another call from the same anonymous female caller later that morning with the same message. Dr. Vassie then called Dr. Scott’s office to check the validity of the prescription. Dr. Scott’s office confirmed the prescription was for six Percocet, not sixty. Dr. Vassie then examined the prescription more closely and determined it had been altered from six to sixty pills. He called Detective Brandon Jones, supervisor of the Chatham County Narcotics Unit, who further investigated the matter.
On 22 February 2010, the Chatham County Grand Jury indicted Defendant for obtaining a controlled substance by fraud in violation of N.C. Gen. Stat.. § 90-108(a) and trafficking in opium by possession of more than twenty-eight grams of opium in violation of N.C. Gen. Stat. § 90-95(h)(4). On 11 October 2010, Defendant was charged in a superseding indictment with the same offenses.
Defendant was tried during the 11 October 2010 Criminal Session of Chatham County Superior Court, the Honorable Carl Fox presiding. Before trial, Defendant filed a motion to dismiss the trafficking charge, arguing the rule of lеnity required him to be prosecuted for his possession of sixty oxycodone/APAP pills under N.C. Gen. Stat. § 90-95(d)(2) and not under § 90-95(h)(4). Defendant also filed a motion in limine to limit expert testimony identifying the pills as oxycodone/APAP based solely on visual inspection. The court denied both of Defendant’s motions.
After the State had presented most of its evidence at trial, Defendant agreed to plead guilty pursuant to a plea agreement. On 13 October 2010, Defendant entered an Alford plea of guilty to the Class I felony of obtaining a controlled substance by fraud and the Class E felony of traffiсking by possession of more than fourteen and less than twenty-eight grams of opium. Defendant’s plea agreement provided that he preserved the right to appeal the denial of his motion to dismiss and motion in limine. Pursuant to the agreement, the court imposed active, conсurrent sentences of four to five months and 90 to 117 months imprisonment and a $100,000 fine. Defendant gave notice of appeal in open court after sentencing.
II. Analysis
a. Right to Appeal
As a threshold matter, we first address whether Defendant has a right to appeal from his guilty plea. A “defendant is not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea.”
Bolinger,
(1) Whether the sentence “is supported by the evidence.” This issue is appealable only if his minimum term of imprison merit does not fall within the presumptive range. N.C. Gen. Stat. § 15A-1444(al) (2001);
(2) Whether the sentence “results from an incorrect finding of the defendant’s prior record level under G.S. 15A-1340.14 or the defendant’s prior conviction level under G.S. 15A-1340.21.” N.C. Gen. Stat. § 15A-1444(a2)(l) (2001);
(3) Whether the sentence contains a type of sentence disposition that is 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; N.C. Gen. Stat. § 15A-1444(a2)(2) (2001);
(4) Whether the sentence “contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 fоr the defendant’s class of offense and prior record or conviction level.” N.C. Gen. Stat. § 15A-1444(a2)(3) (2001);
(5) Whether the trial court improperly denied defendant’s motion to suppress. N.C.Gen. Stat. §§ 15A-979(b)(2001), 15A-1444(e) (2001);
(6) Whether the trial court improperly denied defendant’s motion to withdraw his guilty plea. N.C. Gen. Stat. § 15A-1444(e).
State v. Jamerson,
Here, Defendant did not have an appeal as of right from his guilty plea. However, his challenge that his plea was improperly accepted because it was not the product of informed choice and did not provide him the benefit of his bargain is a procedural challenge to the guilty plea for which he may petition this Court for writ of certiorari under
Bolinger. See
N.C. Gen. Stat. § 15A-1022(b) (2009) (stating that a trial “judge may not accept a plea of guilty . . . from a defendant without first determining that the plea is a product of informed choice”);
see also State v. Jones,
The State argues, however, that Bolinger does not control. The State contends the Bolinger Court reviewed the merits of the defendant’s claim only because neither party recognized the limited bases for appellate review of judgments entered upon guilty pleas. It is true the Bolinger Court noted the defendant was not entitled to an appeal from his guilty plea, however, the Court nonetheless determined that review was still availаble based on a petition for writ of certiorari:
[According to N.C.G.S. § 15A-1444 defendant is not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea. Defendant may obtain appellate reviеw of this issue only upon grant of a writ of certiorari. Because defendant in the instant case failed to petition this Court for a writ of certiorari, he is therefore not entitled to review of the issue.
Neither party to this appeal appears to have recognized the limited bases for appellate review of judgments entered upon pleas of guilty. For this reason, we nevertheless choose to review the merits of defendant’s contention.
Bolinger,
The State further argues that Bolinger does not control because it does not address Rule 21 оf the North Carolina Rules of Appellate Procedure. Rule 21 limits this Court to issuing a writ of certiorari
in appropriate circumstances ... 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 timеly action, or when no right of appeal from an interlocutory order exists, or for review pursuant to 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). The State directs this Court to Judge Thornburg’s concurrence in
State v. Carter,
b. Benefit of Plea Bargain
As for Defendant’s challenge to the procedure in accepting his guilty plea, he argues his plea was not the product of informed choice because he cannot get the benefit of his plea bargain as he was promised. We agree. This issue presents a question of law, and, as such, is reviewed
de novo. See Al Smith Buick Co., Inc. v. Mazda Motor of Am., Inc.,
A defendant who pleads guilty is “entitled to receive the benefit of his bargain.”
Jones,
We recognize that if a defendant does not have an appeal of right, our statute provides for the defendant to seek appellate review by fil
ing a petition for writ of certiorari. N.C. Gen. Stat. § 15A-1444(e) (2009). However, as discussed above, Rule 21 and
Bolinger
provide the only bases upon which this Court may grant certiorari. If a defendant does not have an appeal as of right and we are not permitted under Rule 21 or
Bolinger
to grant certiorari on issues the defendant was promised would be preserved for appeal, then the plea agreement violates the law.
See State v. Smith,
Here, Defendant pled guilty on the condition that “his right to appeal the court’s denial of his motion to dismiss and [] motion to limit expert testimony” was preserved. However, Defendant has no statutory right to appeal these motions. Furthermоre, this Court cannot grant certiorari to review either of these motions as they do not qualify under either Rule 21 or Bolinger. Therefore, because there is no way for Defendant to achieve his end of the plea bargain, his plea bargain violated the law. Accordingly, we must place Defendant back in the position he was before he struck his bargain. Therefore, we vacate the judgment and remand this case to the trial court where Defendant may either withdraw his guilty plea and proceed to trial on the original charges or withdraw his plea and attempt to negotiate another plea agreement that does not violate North Carolina law.
III. Conclusion
Because Defendant did not receive the benefit of his plea bargain, we vacate the judgment and remand to the trial court for further proceedings consistent with this opinion.
Vacated and remanded.
Notes
. The State contends this case is controlled not by
Jones
relying on
Wall
but by
State v. Rinehart,
where this Court dismissed a defendant’s appeal of a plea bargain that improperly preserved defendant’s right to appeal the denial of his pretrial motions to dismiss on double jeopardy and speedy trial grounds.
State v. Rinehart,