An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
Filed: 01 October 2002
STATE OF NORTH CAROLINA
No. 00 CRS 54755
Appeal by defendant from judgment entered 2 August 2001 by
Judge Frank R. Brown in Wilson County Superior Court.
Heard in the
Court of Appeals 30 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Randolph J. Hill for defendant-appellant.
Defendant pled guilty to trafficking in MDA/MDMA.
court sentenced him to imprisonment for a minimum term of 70 months
and a maximum term of 84 months.
Preliminarily, we note that the State has filed a motion to
dismiss the appeal on the ground that defendant does not have a
right of appeal because he pled guilty and received the mandatory
minimum sentence established by N.C. Gen. Stat. § 90-95(h)(4b)(b)
See State v. Willis, 92 N.C. App. 494, 496, 374 S.E.2d
613, 615 (1988).
We agree with the State that defendant does not
have a right of appeal.
Accordingly, we dismiss the appeal as we
-2did in Willis.
However, as we also did in Willis, we elect in our discretion
to treat the record on appeal and defendant’s brief as a petition
for a writ of certiorari.
We allow the petition for the purpose of
considering the issue raised by defendant.
Defendant’s sole contention is that the trial court failed to
exercise and/or abused its discretion by failing to find that
defendant rendered substantial assistance in the identification,
conspirators or principals in accordance with N.C. Gen. Stat. § 9095(h)(5) (1999).
The determination of whether or not a criminal
purview of N.C. Gen. Stat. § 90-95(h)(5) is within the discretion
of the sentencing judge.
State v. Wells, 104 N.C. App. 274, 276,
410 S.E.2d 393, 394 (1991).
The trial court’s decision will not be
discretion, prejudicial procedural misconduct, manifest unfairness
and injustice, or conduct offensive to the public sense of fair
State v. Myers, 61 N.C. App. 554, 557, 301 S.E.2d 401, 403
For example, the sentencing court’s wrongful refusal to
consider evidence offered by a defendant in support of a finding of
substantial assistance may constitute an abuse of discretion.
State v. Hamad, 92 N.C. App. 282, 289, 374 S.E.2d 410, 414 (1988),
aff’d per curiam, 325 N.C. 544, 385 S.E.2d 144 (1989).
In the present case, however, there is nothing in the record
to indicate that the trial court wrongfully refused to consider
-3evidence or that it wrongfully believed it could not as a matter of
law make a finding of substantial assistance.
The record shows
that defendant’s counsel related to the court several ways in which
defendant purported to render substantial assistance but counsel
acknowledged that defendant’s efforts were “not fruitful.”
hearing the evidence and arguments of counsel, the trial court
elected not to find that defendant rendered substantial assistance.
There was no abuse of discretion.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).