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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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