Opinion
No. COA11–1363.
2012-07-3
STATE of North Carolina v. Anthony Lamont LONG.
Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State. Unti & Lumsden LLP, by Sharon L. Smith, for Defendant–Appellant.
Appeal by defendant from judgment entered 16 May 2011 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 4 April 2012. Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State. Unti & Lumsden LLP, by Sharon L. Smith, for Defendant–Appellant.
ERVIN, Judge.
Defendant Anthony Lamont Long appeals from a judgment sentencing him to seventy to eighty-four months imprisonment based upon his pleas of guilty to trafficking in cocaine by possession, trafficking in cocaine by transportation, and conspiracy to traffic in cocaine by possession. On appeal, Defendant argues that Judge Edgar B. Gregory erred by denying his motion to suppress certain evidence seized as the result of a search of a vehicle in which Defendant was riding. After careful consideration of Defendant's challenge to the denial of his suppression motion in light of the record and the applicable law, we conclude that Defendant's appeal must be dismissed.
I. Factual Background
On 8 December 2010, two Greensboro police officers observed an automobile in which Defendant was a passenger circle the parking lot of a Chili's restaurant before parking. Shortly thereafter, another vehicle drove up to and parked beside the car in which Defendant sat. Subsequently, Defendant left the vehicle in which he was sitting, went to the second vehicle, received a box from the occupant of the second vehicle, and returned to the car from which he had come. A short time later, the two police officers stopped the vehicle in which Defendant was riding and discovered the box, which contained cocaine, on the floorboard near Defendant's feet.
On that same date, a Magistrate's Order charging Defendant with trafficking in between 200 and 400 grams of cocaine by possession and trafficking in between 200 and 400 grams of cocaine by transportation was issued. On 7 March 2011, the Guilford County grand jury returned an indictment charging Defendant with trafficking in between 200 and 400 grams of cocaine by possession, trafficking in between 200 and 400 grams of cocaine by transportation, and conspiracy to traffic in between 200 and 400 grams of cocaine by possession.
On 29 March 2011, Defendant filed a motion seeking to have any evidence obtained as a result of the stopping of the vehicle in which he had been riding suppressed. Defendant's suppression motion was heard before Judge Gregory in the Guilford County Superior Court on 26 April 2011. On the following day, Judge Gregory entered an order denying Defendant's suppression motion.
On 16 May 2011, Defendant entered a plea of guilty to all counts set out in the indictment that had been returned against him pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), with this plea conditioned on the understanding that the three charges that had been lodged against him would be consolidated for judgment. In the transcript of plea, Defendant reserved “the right to appeal the denial of the Defendant's motion to suppress evidence[.]” Defendant's trial counsel also provided oral notice of Defendant's intention to challenge the denial of his suppression motion on appeal prior to the imposition of judgment. In accordance with the plea arrangement, the trial court consolidated for judgment the three offenses to which Defendant had entered guilty pleas and sentenced Defendant to a term of seventy to eighty-four months imprisonment. Defendant noted an appeal to this Court “from the Order entered on April 27, 2011, in Guilford County Superior Court in Courtroom 4C.”
II. Legal Analysis
As a preliminary matter, we are required to ascertain the extent to which we have jurisdiction over Defendant's appeal. “[A]n appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.” Xiong v. Marks, 193 N.C.App. 644, 652, 668 S.E.2d 594, 599 (2008) (citation omitted). “Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question.” Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987) (citation omitted). In the absence of subject matter jurisdiction, a court is powerless to deal with the case which has come before it for decision. Xiong, 193 N.C.App. at 652, 668 S.E.2d at 599.
At sentencing, Defendant's counsel stated, “[Defendant] wants to maintain his right to appeal the motion to suppress. I have filed a written motion with the clerk ... but I'm also giving oral notice of appeal of that motion ....“ On the date upon which the trial court entered judgment, Defendant filed a written notice of appeal from Judge Gregory's order denying his suppression motion. As a result, although Defendant noted an appeal from the denial of the suppression motion both orally and in writing, he never noted an appeal from the trial court's final judgment.
According to N.C. R.App. P. 4:
(a) Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of judgment[.]
A failure to comply with N.C. R.App. P. 4 deprives this Court of jurisdiction to consider a party's appeal:
[A] default precluding appellate review on the merits necessarily arises when the appealing party fails to complete all of the steps necessary to vest jurisdiction in the appellate court. It is axiomatic that courts of law must have their power properly invoked by an interested party.... The appellant's compliance with the jurisdictional rules governing the taking of an appeal is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case. ... A jurisdictional default, therefore, precludes the appellate court from acting in any manner other than to dismiss the appeal.... Stated differently, a jurisdictional default brings a purported appeal to an end before it ever begins. Moreover, in the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of [N.C. R.App. P.] 2.
Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 364–65 (2008) (citing Williams v.. Williams, 188 N.C. 728, 730, 125 S.E. 482, 483 (1924); Moore v. Vanderburg, 90 N.C. 10, 10 (1884); and 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) (other citations omitted)). Thus, we lack jurisdiction over Defendant's appeal unless he noted an appeal from an appealable judgment or order in the manner required by N.C. R.App. P. 4.
“An 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.” N.C. Gen.Stat. § 15A–979 (b); see State v. Grogan, 40 N.C.App. 371, 375, 253 S.E.2d 20, 23 (1979) (stating that “orders finally denying a motion to suppress evidence [are] reviewable ‘upon an appeal from a judgment of conviction’ “ (quoting N.C. Gen.Stat. § 15A–979 (b))). For that reason, the appropriate manner in which to challenge the denial of a suppression motion is to note an appeal from the underlying judgment instead of from the order denying the motion to suppress. As a result, “since the record simply does not establish that Defendant ever gave notice of appeal from the trial court's judgment as required by N.C. R.App. P. 4, we lack jurisdiction to consider Defendant's appeal, which must, therefore, be dismissed.” State v. Hughes, ––– N.C.App. ––––, ––––, 707 S.E.2d 777, 779 (2011).
Admittedly, the record reflects that the trial court checked the box marked “defendant has given Notice of Appeal to the N.C. Court of Appeals” on Form AOC–CR–350, which is entitled “Appellate Entries.” Where “the record includes appellate entries ... ‘which indicate through boilerplate [language] that defendant gave notice of appeal, mere appellate entries are insufficient to preserve the right to appeal.’ “ State v. Parker, ––– N.C.App. ––––, ––––, 713 S.E.2d 770, 771 (2011) (quoting Hughes, ––– N.C.App. at ––––, 707 S.E.2d at 778). For that reason, the fact that the record contains appellate entries indicating that Defendant had noted an appeal to this Court does not suffice to provide us with jurisdiction over Defendant's challenge to the trial court's denial of his suppression motion. Thus, for the reasons set forth above, Defendant's appeal should be, and hereby is, dismissed.
APPEAL DISMISSED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).