Opinion
NO. COA12-242
12-18-2012
STATE OF NORTH CAROLINA v. DARIUS CORDALE ALEXANDER
Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defenders Jon H. Hunt and Benjamin Dowling-Sendor, for Defendant
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Catawba County
No. 10 CRS 57159
Appeal by defendant from order entered 17 August 2011 by Judge H. William Constangy in Catawba County Superior Court. Heard in the Court of Appeals 13 September 2012.
Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defenders Jon H. Hunt and Benjamin Dowling-Sendor, for Defendant
ERVIN, Judge.
Defendant Darius Cordale Alexander appeals from an order denying, in part, his motion to suppress evidence seized during a warrantless search conducted in and around his residence. On appeal, Defendant contends that the challenged search resulted in the seizure of certain items which were not in "plain view" and which were observed from a location unlawfully occupied by investigating officers. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that Defendant's appeal should be dismissed.
I. Factual Background
A. Substantive Facts
On the morning of 29 October 2010, Officer Stephanie Roberts of the Hickory Police Department learned from Bob Ledford, a supervisor at Century Furniture, that approximately 200 pounds of metal coil had been removed from the company's air conditioning units. After obtaining this information, Officer Roberts contacted a local scrap metal dealer for the purpose of inquiring as to whether anyone had recently attempted to sell anything resembling the missing property. The dealer informed Officer Roberts that Defendant had recently delivered aluminum copper coil with approximately the same weight as that which had been reported missing by Century Furniture. After obtaining Defendant's license plate number and a description of Defendant's vehicle from the dealer, Officer Roberts utilized this information to determine Defendant's address.
Subsequently, Officer Roberts went to Defendant's residence, which was located in a mobile home park in Burke County. At the time that she pulled into a neighboring driveway, Officer Roberts noticed an individual sitting in a vehicle matching the description of Defendant's automobile. After parking and approaching the vehicle, however, Officer Roberts discovered that it was unoccupied. Upon comparing the tag number associated with the vehicle parked in Defendant's driveway with the information that she had received from the dealer, Officer Roberts confirmed that the vehicle in question was owned by Defendant.
At that point, Officer Roberts approached Defendant's home, walked onto the porch, and knocked. However, no one answered the door. As she was leaving the porch, Officer Roberts noticed pieces of copper coil sitting in a trailer located in the front yard. Upon making that observation, Officer Roberts phoned the facilities manager at Century Furniture and requested that he bring pieces of the copper coil that were still attached to the units from which the theft had occurred for the purpose of comparing the coils seen in the trailer to the pieces which had not been removed from the facility. After the facilities manager arrived at Defendant's residence with the requested pieces of copper coil, he determined that the coil in the trailer matched the coil remaining at the Century Furniture plant.
At that point, Officer Roberts requested assistance from the Burke County Sheriff's Office. Upon the arrival of the requested assistance, Officer Roberts and a Burke County deputy approached Defendant's home. As they did so, Officer Roberts noticed moving window curtains. Similarly, the Burke County deputy observed a young child in the window after going around to the back of Defendant's home for the purpose of knocking.
At that point, a pair of Burke County deputies went to the rental office for the purpose of requesting a key to unlock Defendant's residence. After receiving the requested key, investigating officers entered Defendant's home. During their search of Defendant's residence, the investigating officers discovered evidence implicating Defendant in the theft of the metal coils that were taken from Century Furniture.
B. Procedural History
On 18 January 2011, the Catawba County grand jury returned a bill of indictment charging Defendant with felonious larceny and misdemeanor possession of stolen property. On 11 August 2011, Defendant filed a motion seeking to have the evidence seized in and around his residence by investigating officers suppressed. A hearing concerning the issues raised by Defendant's suppression motion was held before the trial court at the 15 August 2011 criminal session of the Catawba County Superior Court. On 17 August 2011, the trial court entered an order granting Defendant's motion to suppress the evidence seized from the interior of Defendant's residence and denying Defendant's motion to suppress the evidence seized outside Defendant's residence.
On the same date, the State filed an information charging Defendant with felonious possession of stolen property, to which Defendant entered a plea of guilty. In return for Defendant's plea of guilty to the offense charged in the information and in recognition of Defendant's reservation of the right to seek appellate review of the trial court's order denying, in part, his motion to suppress, the State dismissed the felonious larceny and misdemeanor possession of stolen property charges which had been asserted in the original indictment. Based upon Defendant's guilty plea, the trial court entered a judgment sentencing Defendant to five to six months imprisonment. However, the trial court suspended Defendant's sentence on the condition that Defendant serve a 43 day active sentence and successfully complete 30 months of supervised probation. After the entry of judgment, Defendant gave "oral notice of appeal of the partial denial of the suppression motion."
II. Legal Analysis
As a preliminary matter, this Court must determine the extent, if any, to which it has jurisdiction over Defendant's appeal. Although neither party has questioned our authority to address Defendant's challenge to the trial court's order, we are required by well-established North Carolina law to ascertain the extent of our "power to hear and determine causes," State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906), on our own motion. Xiong v. Marks, 193 N.C. App. 644, 652, 668 S.E.2d 594, 599 (2008) (citing Hedgepeth v. N.C. Div. of Servs. for the Blind, 142 N.C. App. 338, 341, 543 S.E.2d 169, 171 (2001)). "A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (citing Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000); Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991); In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988); Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983); State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005)). A defendant's failure to properly note an appeal creates a jurisdictional default which deprives us of the authority to consider the defendant's claims on the merits. McCoy, 171 N.C. App. at 638, 615 S.E.2d at 320 (citing State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411, disc. review denied, 328 N.C. 335, 402 S.E.2d 842 (1991); Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005)).
The proper manner in which to note an appeal in a criminal case is delineated in N.C.R. App. P. 4. Although N.C.R. App. P. 4 allows a defendant to orally note an appeal in open court, he is still required to "designate the judgment or order from which appeal is taken." N.C.R. App. P. 4(a)-(b) (2011). According to N.C. Gen. Stat. § 15A-979(b), "[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." As a result, although Defendant was allowed to challenge the denial of his suppression motion despite having entered a guilty plea, he was required to do so by means of an appeal taken from the trial court's judgment, not from the denial of his suppression motion. State v. Hughes, __ N.C. App. ____, _____, 707 S.E.2d 777, 778 (2011) (holding that the defendant's failure to "file[] a written notice of appeal" or "orally note[] an appeal . . . from the trial court's judgment" deprived this Court of jurisdiction over the defendant's challenge to the denial of his suppression motion).
Although Defendant gave oral notice of appeal after the entry of judgment, he noted his appeal from the order denying his suppression motion rather than from the trial court's judgment. The fact that the record on appeal also contains an executed AOC-CR-350 form entitled "Appellate Entries" is of no avail to Defendant given that this Court has previously held that a "defendant did not preserve his right to appeal his convictions" where the "record on appeal include[d] appellate entries . . . but contained no written notices of appeal as required by [N.C.R. App. P. 4]." State v. Blue, 115 N.C. App. 108, 113, 443 S.E.2d 748, 751 (1994). As a result, given that "it does not appear from the record that Defendant properly gave notice of appeal from the trial court's judgment," we have no "jurisdiction to consider [his] appeal, which must, therefore, be dismissed." Hughes, ____ N.C. App. at _____, 707 S.E.2d at 778-79.
APPEAL DISMISSED.
Judges ROBERT N. HUNTER, JR., and MCCULLOUGH concur.
Report per Rule 30(e).