Opinion
No. COA10-75
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgment entered 29 June 2009 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 August 2010.
Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State. Mary McCullers Reece for defendant-appellant.
Mecklenburg County No. 07 CRS 258538.
Defendant James Randall Sloan appeals from judgment consistent with his guilty plea following the trial court's denial of his motion to suppress. Because defendant failed to give notice of intent to appeal from the denial of his motion to suppress prior to the trial court's acceptance of the guilty plea, we dismiss the appeal.
On 17 March 2008, defendant was indicted for possession of Schedule II controlled substances and carrying a concealed weapon as a result of events which occurred on 14 December 2007. Defendant filed a motion to suppress evidence seized after a traffic stop of a vehicle in which he was a passenger. The matter came on for hearing on 31 March 2009 and, after hearing evidence and arguments, the trial court denied the motion to suppress.
Defendant subsequently agreed to plead guilty to the two charges, and the trial court conducted a plea colloquy. The plea arrangement provided, "Upon denial of Defendant's Motion to Suppress Defendant will plead guilty to Possession of Cocaine and Carrying a concealed weapon. Sentencing is in the discretion of the Court." The plea arrangement section of the transcript of plea was signed by defendant and defense counsel. The trial court accepted the plea arrangement and entered judgment. The trial court sentenced defendant to six months to eight months imprisonment, suspended the sentence, and placed defendant on supervised probation for twenty-four months. Defendant appeals.
On appeal, defendant contends the trial court erred by denying his motion to suppress. A defendant is entitled to appeal from the denial of a motion to suppress upon judgment entered pursuant to a guilty plea. N.C. Gen. Stat. § 15A-979(b) (2009). This statutory right to appeal, however, is not absolute and "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), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996). This "[n]otice of intent to appeal prior to plea bargain finalization is a rule designed to promote a `fair posture for appeal from a guilty plea.'" Id. at 625, 463 S.E.2d at 405 (quoting State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979)). The notice of intent must be "specifically given," id. at 625, 463 S.E.2d at 404, and must be found in the record, State v. Brown, 142 N.C. App. 491, 492-93, 543 S.E.2d 192, 193 (2001).
Our careful review of the entire record, including the transcript of plea and the actual transcript of the proceedings reveals the absence of any indication by defendant that he alerted the prosecutor or the trial court in advance of the entry of the plea of guilty of his intention to appeal from the denial of his motion to suppress. Therefore, defendant waived his right to appellate review of the denial of his motion to suppress and we dismiss this appeal.
Dismissed.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).