Opinion
No. COA12–22.
2012-07-17
STATE of North Carolina v. Sergio Montrell WILLIAMS.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Mark L. Hayes for defendant appellant.
Appeal by defendant from judgment entered 20 July 2011 by Judge J. Carlton Cole in Edgecombe County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Mark L. Hayes for defendant appellant.
McCULLOUGH, Judge.
On 20 July 2011, Sergio Montrell Williams (“defendant”) pled guilty to one count of first-degree burglary. The plea arrangement provided, inter alia, that defendant reserved the right to appeal the court's denial of defendant's motion to suppress in-court and out-of-court identifications; the court's in limine rulings allowing Rule 404(b) evidence offered by the State, restricting cross-examination of the State's witnesses with regard to defendant's prior statements, disallowing cross-examination with regard to the victim's medical history; and “any other issues that may be plausibly raised by the record.” The court entered judgment on the same date sentencing defendant to imprisonment for a term of 103 to 133 months. Defendant did not give notice of appeal in open court. On 22 July 2011, defendant filed written notice of appeal “as to the Court's Rulings and Findings of Fact rendered in open Court on July 20, 2011 and as set forth in the Defendant's Transcript of Plea, to include any other issues that might be plausibly raised by the record.”
On 6 January 2012, defendant filed a record on appeal in which he asserted three proposed issues on appeal: (1) whether his guilty plea should be vacated when the plea agreement promised defendant the right to appeal issues which are not appealable; (2) whether the court erred by denying defendant's motion to suppress the out-of-court identification of him as the perpetrator; and (3) whether the court erred by denying his motion to suppress the in-court identification of him as the perpetrator. On 9 February 2012, defendant filed a brief in which he brought forward all three proposed issues. Citing State v. Demaio, ––– N.C.App. ––––, 716 S.E.2d 863 (2011), as supporting precedent, he also filed a petition for writ of certiorari seeking review of the plea agreement issue. Defendant conceded that he did not have a statutory right to appeal this issue.
In Demaio, the defendant pled guilty pursuant to a plea agreement that stated he preserved his right to appeal the trial court's denial of his pretrial motions to dismiss and in limine. Id. at ––––, 716 S.E.2d at 865. The defendant filed a brief in which he argued that (1) a factual basis for the plea had not been established, and (2) the plea was not the product of an informed choice because he could not receive the benefit of the plea bargain insofar as he did not have a statutory right under the circumstances to appeal the rulings. Id. at ––––, 716 S.E.2d at 864, 866. Recognizing he did not have an appeal of right to contest the plea agreement, the defendant filed a petition for writ of certiorari seeking review of the issues raised in the brief. Id. at ––––, 716 S.E.2d at 864. This Court allowed the petition and agreed with the defendant that the plea agreement violated the law because the defendant could not achieve the benefit of his plea bargain as he was promised. Id. at ––––, 716 S.E.2d at 866–67. This Court vacated the judgment and remanded the case to the trial court to allow the defendant to withdraw his guilty plea and either proceed to trial on the original charges or attempt to negotiate another plea agreement that did not violate North Carolina law. Id. at ––––, 716 S.E.2d at 868.
The State agrees that the circumstances in the present case are indistinguishable from Demaio, given that defendant entered into a plea agreement that permitted him to appeal non-appealable rulings. Thus, our opinion in Demaio is directly controlling in this case. The plea agreement here violated the law, and defendant's remedy is to be allowed to withdraw his plea and either proceed to trial on the original charges or negotiate another plea agreement. Given our opinion in Demaio, we therefore allow the petition for writ of certiorari, vacate the judgment, and remand the matter to the trial court for further proceedings consistent with this opinion.
This disposition makes it unnecessary to address defendant's arguments concerning the motion to suppress. Regardless, defendant's notice of appeal does not reference a final judgment, and therefore, his appeal of the order denying his motion to suppress must be dismissed for lack of jurisdiction. See State v. Miller, 205 N.C.App. 724, 725–26, 696 S.E.2d 542, 542–43 (2010) (holding this Court does not have jurisdiction, pursuant to N.C. Gen.Stat. § 15A–979(b) to review an order denying a motion to suppress if the notice of appeal fails to identify the final judgment subsequently entered).
Vacated and remanded. Judges HUNTER (ROBERT C.) and ELMORE, concur.
Report per Rule 30(e).