Opinion
No. COA11–1454.
2012-07-17
STATE of North Carolina v. Derrick Lee McDONALD.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for defendant-appellant.
Appeal by defendant from order entered 14 July 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for defendant-appellant.
CALABRIA, Judge.
Derrick Lee McDonald (“defendant”) appeals the trial court's order denying defendant's motion to suppress evidence obtained at a driver's license checkpoint. We dismiss defendant's appeal.
On 11 March 2010, defendant was a passenger in a vehicle that was stopped at a driver's license checkpoint set up by Detective Brett Riggs and other members of the Charlotte–Mecklenburg Police Department (“CMPD”). When CMPD officers approached the vehicle, they noticed the smell of marijuana. Defendant exited the vehicle and a bag fell out of the passenger side of the vehicle that contained approximately forty grams of marijuana, approximately three grams of cocaine, a digital scale, and personal items.
On 6 July 2010, defendant was indicted for possession of drug paraphernalia, possession of a controlled substance, and possession with intent to sell or deliver a controlled substance. On 26 October 2010, in Mecklenburg County Superior Court, defendant filed a motion to suppress the evidence obtained at the checkpoint. After a hearing on 13 July 2011, the trial court denied the motion. A written order denying defendant's motion was filed the following day.
Upon the denial of his motion to suppress, defendant pled guilty to all charges. The trial court sentenced defendant to a minimum of six months to a maximum of eight months in the North Carolina Department of Correction. The sentence was suspended, and defendant was placed on supervised probation for twenty-four months. Defendant appeals.
As an initial matter, we address the State's motion to dismiss defendant's appeal. The State contends that defendant failed to properly preserve his right to appeal the trial court's denial of his motion to suppress. We agree.
[W]hen a defendant intends to appeal from the denial of a suppression motion pursuant to [N.C. Gen.Stat. § 15A–979(b) ], he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute.
State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (citation omitted). “[N]otice of intent to appeal the denial of a motion to suppress [must] be specifically given to the trial court and prosecution prior to the entry of a guilty plea.” State v. Pimental, 153 N.C.App. 69, 74, 568 S.E.2d 867, 870 (2002).
“[The] defendant bears the burden of notifying the state and the trial court during plea negotiations of the intention to appeal the denial of a motion to suppress, or the right to do so is waived after a plea of guilty.” State v. McBride, 120 N.C.App. 623, 625, 463 S.E.2d 403, 404 (1995). Moreover, “[t]hat portion of the record on appeal reflecting the proceedings in the trial court must show that appellant has the statutory right to appeal.” State v. Brown, 142 N.C.App. 491, 493, 543 S.E.2d 192, 193 (2001).
In the instant case, there is no evidence in the record of the proceedings in the trial court that defendant provided notice of his intent to appeal the denial of the motion to suppress, prior to pleading guilty. Defendant's written “Transcript of Plea” does not indicate his intention to appeal the denial of his motion to suppress. In addition, there is nothing in the transcript of the proceedings demonstrating that defendant indicated he intended to appeal the denial of his motion to suppress prior to entering his guilty plea.
Defendant acknowledges that “neither the Transcript of Plea nor the transcript of the plea hearing mentions [defendant]'s intent to appeal the denial of his motion to suppress[.]” Nonetheless, defendant contends that his appeal is properly before this Court. Defendant relies upon a stipulation included in the record on appeal. The stipulation, which was entered into by defendant's appellate counsel as well as the assistant district attorney who signed defendant's Transcript of Plea and was present during the entry of defendant's guilty plea, reads:
It is hereby stipulated and agreed by all parties to this appeal that defense counsel's oral notice of appeal stood for and signified his intention to appeal the denial of the motion to suppress. Both counsel for [the] defense and the assistant district attorney, during plea negotiations and prior to the plea colloquy and the entry of judgment, had engaged in a conversation in which both parties understood that the earlier denial of the defendant's motion to suppress would be appealed following entry of the defendant's guilty plea.
However, this stipulation does not permit this Court to interpret defendant's notice of appeal as an intention to appeal the denial of his motion to suppress. As this Court has previously noted,
A Notice of Appeal is distinct from giving notice of intent to appeal. Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a “fair posture for appeal from a guilty plea.” Notice of Appeal is a procedural appellate rule, required in order to give “this court jurisdiction to hear and decide a case.”
McBride, 120 N.C.App. at 625, 463 S.E.2d at 405 (citations omitted).
Moreover, this Court has previously considered the propriety of preserving the right to appeal the denial of a motion to suppress via stipulation and found that procedure to be inadequate. In Brown, the defendant was indicted for possession of a controlled substance and made a motion to suppress evidence obtained as a result of the search of his person. 142 N.C.App. at 491, 543 S.E.2d at 192–93. Upon denial of his motion to suppress, the defendant pled guilty to the charges against him. Id. at 491–92, 543 S.E.2d at 193. The defendant did not expressly provide notice of his intention to appeal the denial of his motion to suppress in either the Transcript of Plea or in the trial transcript. Id. at 492, 543 S.E.2d at 193.
The record on appeal in Brown included a statement, located in the “Organization of Trial Tribunal,” that the “defendant pled guilty but preserved his right to appeal the denial of his motion to suppress[.]” Id. at 493, 543 S.E.2d at 193. This Court held that
counsel cannot correct the record proper by stipulation. Mason v. Commissioners of Moore, 229 N.C. 626, 628, 51 S.E.2d 6, 8 (1948). Thus, it is not enough that counsel states or stipulates that appellant reserved the right to appeal. That portion of the record on appeal reflecting the proceedings in the trial court must show that appellant has the statutory right to appeal.
Id. (citation omitted). Since the record on appeal did not include any evidence of defendant's intent to appeal the trial court's denial of his motion to suppress evidence beyond the stipulation, the appeal was dismissed. Id.
Defendant attempts to distinguish the instant case from Brown by noting that the stipulation in the instant case is factually specific while the stipulation considered by the Brown content between the stipulation in Brown and the stipulation in the instant case do not ultimately affect the portions of Brown which hold that “it is not enough that counsel states or stipulates that appellant reserved the right to appeal” and that notice of intent to appeal must be demonstrated in “[t]hat portion of the record on appeal reflecting the proceedings in the trial court ....“ Id. The specific content of a stipulation is immaterial, because Brown categorically forbids the use of any stipulation as a means to preserve a defendant's right to appeal. Thus, as in Brown, the stipulation in the instant case is insufficient to preserve defendant's right to appeal the denial of his motion to suppress.
Since the instant case cannot be materially distinguished from Brown, we are bound to follow its holding “unless it has been overturned by a higher court.” In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly,
the appeal is dismissed without prejudice to defendant's right to seek an evidentiary hearing in superior court determining whether or not the guilty plea was entered reserving defendant's right to appeal the denial of his motion to suppress. If it is determined that defendant pled guilty while properly reserving his right to appeal, review may then be sought by petition for writ of certiorari filed with this Court.
Brown, 142 N.C.App. at 493, 543 S.E.2d at 194. The State's motion to dismiss defendant's appeal is granted.
Dismissed. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).