State v. Brink
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA12-797 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. New Hanover County No. 11 CRS 52484 BRYAN LEE BRINK Appeal by defendant from judgment entered 29 November 2011 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 26 November 2012. Roy Cooper, Attorney General, by Rebecca E. Lem, Assistant Attorney General, for the State. Reece & Reece, appellant. by Mary McCullers Reece, for defendant- MARTIN, Chief Judge. On 7 April 2011, defendant Bryan Lee Brink pled guilty to delivery of a Schedule I controlled substance and was placed on twenty-four probation months officer of filed supervised violation probation. reports, Defendant s each alleging multiple probation violations, on 5 August 2011 and 21 October 2011. On 29 November 2011, the trial court held a probation -2violation hearing, found defendant to be in willful violation of his probation, and revoked outset, we defendant s probation. Defendant appeals. At the note the North Carolina Rules of Appellate Procedure require a criminal defendant to give oral notice of appeal at trial or to file written notice of appeal within fourteen R. App. P. 4. days In of this the case, entry the of trial judgment. transcript N.C. does not indicate defendant gave oral notice of appeal, and defendant s written notice of appeal was filed on 19 December 2011, more than fourteen acknowledges he Accordingly, we days after failed must entry to give dismiss of judgment. timely defendant s notice appeal. Defendant of appeal. State v. McCoy, 171 N.C. App. 636, 615 S.E.2d 319, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). However, on 2 August 2012, defendant filed a petition for writ of certiorari seeking a belated appeal pursuant to N.C. R. App. P. 21. Defendant had a statutory right to appeal from the judgment revoking probation pursuant to N.C. Gen. Stat. § 15A-1347 (2011) and N.C. Gen. Stat. § 7A-27 (2011), and lost that right to appeal through failure to take timely action. Accordingly, we allow the petition for writ of certiorari to -3permit a belated appeal from the judgment revoking defendant s probation. Counsel appointed to represent defendant on appeal has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its prejudicial error. own review of the record for possible Counsel has shown to the satisfaction of this Court that she has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so. Defendant has not filed any written arguments on his own behalf with this Court and a reasonable time in which he could have done so has passed. In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom. We have been unable to find any possible prejudicial error and conclude that the appeal is wholly frivolous. Affirmed. Judges STROUD and HUNTER, JR. concur. Report per Rule 30(e).
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