Opinion
No. 06-1443.
Filed 5 June 2007.
Wake County Nos. 05 CRS 112021-22.
Appeal by defendant from judgment entered 11 July 2006 by Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for defendant.
Jimmie A. Sharpe, Jr. (defendant) was indicted on 9 January 2006 for trafficking in methamphetamine by transportation and by trafficking in methamphetamine by possession. Prior to trial, defendant moved to suppress evidence seized following a search of his car. The motion was denied. On 8 May 2006, defendant agreed to plead guilty pursuant to a plea agreement to trafficking in methamphetamine by transportation and trafficking in methamphetamine by possession. Judgment was continued until 10 July 2006. On 11 July 2006, the trial court entered judgment, sentencing defendant to a term of 70 to 84 months imprisonment. Defendant appeals.
By his first three assignments of error, defendant raises issues concerning the denial of his motion to suppress. First, defendant argues that the trial court erred by denying his motion to suppress. Second, defendant argues that the trial court erred by entering judgment in violation of his constitutional right to be free from unlawful searches and seizures. Third, defendant argues that had the evidence been properly suppressed, the evidence would have been insufficient to support his conviction. However, because defendant failed to preserve these assignments of error for our review, we decline to review his arguments.
N.C. Gen. Stat. § 15A-979(b)(2005) states that "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." However, "[t]his statutory right to appeal is conditional, not absolute." State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), affirmed, 344 N.C. 623, 476 S.E.2d 106 (1996). "[W]hen a defendant intends to appeal from the denial of a suppression motion . . ., 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[.]" State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (citing State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979)); see also State v. Pimental, 153 N.C. App. 69, 74, 568 S.E.2d 867, 870 (2002). Here, there is no indication in the record that defendant gave the State or the trial court notice of his intent to appeal the denial of his motion to suppress. Therefore, defendant waived his right to appellate review of these issues. Defendant next argues that the trial court erred by failing to find that he rendered substantial assistance to law enforcement. We are not persuaded.
N.C. Gen. Stat. § 90-95(h)(5)(2005) provides in relevant part that:
The sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered such substantial assistance.
The trial court's determination regarding whether "`a criminal defendant's aid amounts to substantial assistance is discretionary.'" State v. Robinson, 177 N.C. App. 225, 232, 628 S.E.2d 252, 256 (2006) (quoting State v. Wells, 104 N.C. App. 274, 276, 410 S.E.2d 393, 394 (1991) (internal quotation marks omitted)). "`To overturn a sentencing decision, the reviewing court must find an abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.'" Id. at 232-33, 628 S.E.2d at 256-57 (quoting State v. Willis, 92 N.C. App. 494, 498, 374 S.E.2d 613, 616 (1988) (internal quotation marks omitted)).
Here, the defendant testified regarding his efforts to provide substantial assistance. After defendant testified, the trial court heard arguments from both defendant and the State concerning whether substantial assistance had been provided. The trial court then found that:
there is not one single evidence from any law enforcement officer or agency to show this Court that the Defendant has rendered substantial and valuable services to law enforcement, and the Court finds that the statement that he made about the valuable legal services is nothing more than self-serving.
Nothing in the record indicates that the trial court wrongfully refused to consider defendant's evidence or that it otherwise believed it could not as a matter of law make a finding of substantial assistance. The trial court's determination that defendant did not render substantial assistance was not manifestly unsupported by reason. Therefore, we conclude that the trial court did not abuse its discretion.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).