Opinion
No. COA12–1559.
2013-06-18
STATE of North Carolina v. Samuel Antwan WASHINGTON.
Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State. Ryan McKaig, attorney for defendant.
Appeal by defendant from judgment entered 9 July 2012 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 23 May 2013. Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State. Ryan McKaig, attorney for defendant.
ELMORE, Judge.
Samuel Antwan Washington (defendant) appeals from a judgment entered upon a guilty plea of possession of cocaine, possession of a schedule I controlled substance, possession of marijuana, possession of drug paraphernalia, and having obtained habitual felon status. After careful review, we dismiss for lack of jurisdiction.
I. Background
During the late evening hours of 31 July 2011, Officer Jeffrey Gaydos of the Kannapolis Police Department was conducting a routine patrol of an apartment complex on Locust Street in Kannapolis. The Locust Street Apartments were the source of many citizen complaints of illegal drug activity. Officer Gaydos observed defendant sitting in a parked car near the apartments. Although he did not observe defendant interact with anyone, he became suspicious of defendant because, having frequently patrolled that area, he was not used to seeing people sitting in vehicles there and he had not seen defendant's vehicle at the complex before. After sometime, defendant exited the parking lot and drove his vehicle east on Locust Street. Officer Gaydos decided to follow defendant's vehicle for a few minutes. Upon running defendant's tags, Officer Gaydos learned that defendant was previously suspected of drug activity involvement. Around this time, Officer Gaydos observed defendant driving approximately 35 mph in a posted 30 mph speed zone. He initiated a traffic stop based on defendant's speeding and ultimately decided to run an open air search of the exterior of defendant's car. He radioed Officer Hamilton with the K–9 unit and Officer Hamilton arrived a few minutes later.
Officer Hamilton directed defendant to exit the vehicle and place his hands on his head. Officer Hamilton then proceeded to pat down defendant. The pat down resulted in the discovery of marijuana, a piece of paper with crack cocaine wrapped in it, and two ecstasy pills. Defendant was then arrested and placed in Officer Gaydos' patrol car. The K–9 was then walked around defendant's vehicle and alerted to the presence of illegal drugs. A search was conducted of the car and marijuana was found in the center console.
Defendant was charged with 1) possession of cocaine, 2) felony possession of a Schedule I controlled substance, 3) possession of marijuana, 4) possession of drug paraphernalia, and 4) having obtained habitual felon status. Defendant moved to suppress the drug evidence, and the trial court denied his motion. He then pled guilty to all charges and was sentenced to 67–90 months imprisonment. Defendant now appeals.
II. Analysis
On appeal, defendant argues 1) that the trial court erred in denying his motion to suppress and 2) that the trial court erred in failing to make written findings of fact and conclusions of law in the suppression order. However, because we conclude that defendant failed to properly preserve his right to appeal, we are unable to address these arguments and dismiss his appeal for lack of jurisdiction.
According to our General Statutes, “[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.” N.C. Gen.Stat. § 15A–979 (2012). In order for the appeal to be properly preserved, a defendant must 1) notify “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), and 2) provide notice of appeal from the final “judgment of conviction[.]” State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 542 (2010). “The two forms of notice serve different functions, and performance of one does not substitute for completion of the other.” McBride at 626, 463 S .E.2d at 405.
Here, it is clear from the record that defendant provided proper notice of his intent to appeal the denial of his suppression motion. After having initially rejected the plea agreement, defendant's attorney later notified the trial court of his intent to plead guilty, stating “[h]e's pleading guilty but wanting to preserve” “a previous motion to suppress that was denied [.]” However, there is nothing in the record indicating that defendant ever gave notice of appeal, either orally or in writing, from the final judgment and conviction. Therefore, this Court lacks jurisdiction to reach the merits of defendant's arguments and we must dismiss the appeal. See Miller at 725, 696 S.E.2d at 542 (Holding that we have no jurisdiction to hear the appeal “where the defendant preserved his right to appeal from denial of his motion to suppress but did not appeal from his judgment of conviction.”) (citation omitted).
III. Conclusion
Because defendant failed to properly appeal from the final judgment, this court lacks jurisdiction to decide defendant's appeal.
Dismissed. Judges GEER and DILLON concur.
Report per Rule 30(e).