STATEMENT OF THE CASE by HC120209181149

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									State v. Timothy Vanover, COA06-884, to be filed 8-4-06 (attorney
William Auman, 828-236-1808)


                        STATEMENT OF THE CASE

     The defendant, Timothy Vanover, entered pleas of nolo

contendre to the offenses of false pretense, driving while

impaired, speeding to elude, attempted felonious restraint, and

assault by strangulation.    Other charges were dismissed pursuant

to negotiation.   His pleas were accepted during the March 13,

2006, session of Criminal Superior Court in Davidson County by

the Hon. W. Erwin Spainhour.    The defendant was determined to be

a prior record level four with twelve points for felony

sentencing purposes, and received active sentences within the

presumptive range of not less than 20 nor more than 24 months,

followed by a consecutive sentence of 11 to 14 months, an

additional consecutive active term of 12 months, and a

consecutive suspended sentence of 11 to 14 months. The defendant

filed notice of appeal pro se to this Court on March 21, 2006.

     The Appellate Defender was initially assigned to perfect

the defendant’s appeal, but appointed attorney William D. Auman

on April 25, 2006, to represent the defendant.

     The record on appeal was filed in the North Carolina Court

of Appeals on July 3, 2006, and docketed on July 18, 2006.
                        STANDARD OF REVIEW

    This appeal is being filed at the request of the defendant

after being advised by appellate counsel that he was unable to

identify any issue in the case that would potentially support a

finding by this Court of prejudicial error.    It appears that

N.C.G.S. section 15A-1444 (a1) precludes appeal of right,

however the defendant has requested that this Court review his

matters pursuant to Anders v. California, 386 U.S. 738 (1967),

and State v. Kinch, 314 N.C. 99 (1985).



                      STATEMENT OF THE FACTS

    Evidence summarized at the defendant’s sentencing hearing

tended to show that the defendant was at the home of his

girlfriend, Alicia Kennedy, on April 2.   Ms. Kennedy allegedly

asked him to leave, and he assaulted her with a knife, kicked

and choked her.   After he forced her to accompany him, Ms.

Kennedy was able to call 911 and the defendant took off in her

rented vehicle.   Officers pursued and the defendant wrecked,

then ran and swam in a pond in an effort to get away.    He

refused a chemical test after being transported to a local

hospital.

    Mr. Vanover also allegedly passed a $560 check, which was

reported missing by Judy Gandy, the mother of Ms. Kennedy, at a
local BB&T.    Ms. Kennedy did indicate that she wanted all

charges dropped, but no mitigating circumstances were submitted

on the defendant’s behalf.

     During the plea colloquy, Mr. Vanover indicated that he was

satisfied with his trial counsel and knowingly accepted the

terms of his plea.    The trial court determined that a factual

basis supported entry of the same, and entered judgments as

noted supra.




                              ARGUMENT

I.   REQUEST FOR REVIEW IN ACCORDANCE WITH ANDERS V. CALIFORNIA,

     386 U.S. 738, 18 L.Ed 2d 493 (1967). – ISSUE IS WHETHER

     THERE IS ANY GROUND FOR APPEAL WARRANTED BY EXISTING LAW OR

     BY A GOOD FAITH ARGUMENT FOR THE EXTENSION, MODIFICATION OR

     REVERSAL OF EXISTING LAW.

     ASSIGNMENT OF ERROR NO. 1

     After repeated and close examination of the record and

relevant law, counsel is unable to identify an issue with

sufficient merit to support a meaningful argument for relief on

appeal.   Counsel therefore respectfully requests that this Court

conduct a full examination of the record on appeal for possible

error and determine whether any justifiable issue has been

overlooked by counsel.    Counsel submits this brief in accordance
with Anders, supra, and is sending a copy of the same to the

defendant.   Accordingly, counsel respectfully requests that this

Court “allow [the defendant] time to raise any points he

chooses” in support of his appeal.   Anders, Id., 386 U.S. at

744, 18 L.Ed.2d at 498.   Counsel has notified the defendant of

his right to submit arguments, and has provided him with copies

of all pertinent documents relating to his appeal.   In order to

fulfill his obligation that he refer this Court to anything in

the record that might arguably support the appeal, counsel

provides the following information for purposes of review.

    As set forth in the record, the defendant entered a plea

agreement with the state, and the transcript of plea corresponds

to that recorded in the official transcript. The defendant’s

judgment likewise appears to be in accordance with his

negotiation.   His prior record level IV determination for felony

sentencing purposes was based on prior convictions for: the

Class G felony of common law robbery on October 7, 1998; Class H

felonious larceny on June 29, 1999; Class One misdemeanor

larceny convictions from May 6, 1996; October 7, 1997; October

12, 1998; and November 23, 1998; Class One misdemeanor driving

while impaired on April 10, 1993; and Class One misdemeanor

breaking or entering on August 20, 1997.   Accordingly each

judgment entered fell within the presumptive range for the

applicable offense.
    Pursuant to the provisions of N.G.G.S. section 15A-1444

(a1), a defendant who has entered pleas of guilty to felony

offenses is entitled to an appeal of right only if the minimum

term of imprisonment does not fall within the presumptive range

for the defendant’s prior record of conviction level and class

of offense.   Such did not occur in the case at bar, and thus it

appears the trial court exercised discretion in accordance with

requisite legal constraints and within the confines of the plea

agreement.    Therefore it is counsel’s opinion that the defendant

has no statutory appeal of right to contest the judgment

entered.

    The undersigned also could not find any grounds for appeal

warranted by existing law or by a good faith argument for the

extension, modification, of reversal of existing law.   The plea

colloquy as reflected in the transcript and record indicates

that statutory provisions were adhered to by the trial court,

and that a factual basis existed to support entry of the pleas.

Furthermore, the defendant offered no evidence and made no

specific request for finding of any mitigating circumstances.

There was no indication from the record that the defendant was

misled by his attorney as to what his potential sentence could

be pursuant to the agreement, and he responded upon inquiry that

he was satisfied with her trial counsel’s legal service.
                            CONCLUSION

    After examination of the record, communication with the

defendant, and legal research, the undersigned was unable to

find any grounds for appeal warranted by either existing law or

a good faith argument for the extension, modification or

reversal of existing law.   Therefore it is counsel’s opinion

that applicable statutory provisions do not provide for an

appeal of right from the defendant’s judgment entered.

								
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