STATE OF NORTH CAROLINA
v.
JON ERIC PIMENTAL
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General H. Alan Pell, for the State.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III,
and Robert J. McAfee, for defendant-appellant.
CAMPBELL, Judge.
Jon Eric Pimental (“defendant”) purports to appeal from
judgments entered 7 November 2000 consistent with his Alford plea
of guilty to second degree murder and first degree burglary. In
the alternative, defendant petitions this Court for writ of
certiorari.
Defendant was indicted for first degree murder and first
degree burglary. Defendant was tried capitally. Following the
presentation of evidence by the State and defendant, the jury was
instructed that it could find defendant guilty of first degree
murder, guilty of second degree murder or not guilty on the murder
charge, and guilty or not guilty of first degree burglary. On the
murder charge, the jury was instructed that it could find defendant
guilty of first degree murder on the basis of premeditation anddeliberation or the felony murder rule--with the underlying felony
being burglary.
Following deliberation, the jury returned verdict forms
finding defendant guilty of first degree burglary and second degree
murder. Upon review of the jury's verdict forms, the trial court
sent the jury back to the jury room and informed counsel of its
concern that the jury had returned an inconsistent verdict. The
trial court then asked counsel to present argument concerning the
trial court's responsibility to accept an inconsistent verdict.
Following a weekend recess and further argument from both sides,
the trial court denied defendant's motion that the trial court
accept the jury's verdict and denied defendant's oral motion for a
mistrial. The trial court then informed the jury that it had
returned an inconsistent verdict and instructed the jury to resume
deliberation. The trial court also informed the jury that it would
accept the jury's verdict if, upon further deliberation, the jury
once again returned a verdict of guilty of second degree murder and
first degree burglary. While the jury was still in deliberation,
defendant entered an Alford plea of guilty to second degree murder
and first degree burglary. The trial court accepted defendant's
plea, entered judgment consistent therewith, and sentenced him to
consecutive prison terms in the aggravated range of 129 to 164
months for first degree burglary and 276 to 341 months for second
degree murder. In sentencing defendant in the aggravated range for
second degree murder, the trial court found as a non-statutory
aggravating factor that the offense was committed with malice,premeditation and deliberation. Defendant gave timely notice of
appeal.
In his brief to this Court, defendant contends that the trial
court erred in (1) denying defendant's motions for a continuance,
(2) denying defendant's motion to dismiss the short-form murder
indictment and limit the prosecution to second degree murder, (3)
denying defendant's motion to suppress statements made by him to
law enforcement on 24 January 2000, (4) denying defendant's motion
to suppress evidence obtained without a search warrant, (5)
allowing the State to introduce into evidence prejudicial
photographs of defendant, (6) denying defendant's motion to dismiss
the charges on the ground of insufficient evidence of specific
intent, (7) allowing defense counsel to argue to the jury that
defendant was at most guilty of second degree murder, (8) denying
defendant's motion to accept the jury's verdict and motion for a
mistrial, and (9) finding as a non-statutory aggravating factor
that the murder was committed with malice, premeditation and
deliberation.
The State filed a motion to dismiss defendant's appeal as to
Argument Nos. 1-8 set out above, contending that defendant's right
to appeal is precluded by operation of N.C. Gen. Stat. § 15A-1444
and defendant's guilty plea.
(See footnote 1)
In response, defendant asserts that
he was in fact found guilty by the jury, and that the trial court's
refusal to accept the jury's verdict should not interfere with hisright to appeal. In the alternative, defendant requests that this
Court grant a writ of certiorari to review the merits of his
appeal.
We first address whether this Court has the authority to
review the trial court's judgments entered consistent with
defendant's guilty plea.
In North Carolina, a defendant's right to appeal in a criminal
proceeding is purely a creation of state statute. See N.C. Gen.
Stat. § 15A-1444 (2001); State v. McBride, 120 N.C. App. 623, 624,
463 S.E.2d 403, 404 (1995), aff'd, 344 N.C. 623, 476 S.E.2d 106
(1996); State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876
(1995), aff'd, 342 N.C. 638, 466 S.E.2d 277 (1996). Furthermore,
there is no federal constitutional right obligating courts to hear
appeals in criminal proceedings. Abney v. United States, 431 U.S.
651, 656, 52 L. Ed. 2d 651, 657 (1977). N.C. Gen. Stat. § 15A-1444
provides, in pertinent part:
(a1) A defendant who has been found guilty, or
entered a plea of guilty or no contest to a
felony, is entitled to appeal as a matter of
right the issue of whether his or her sentence
is supported by evidence introduced at the
trial and sentencing hearing only if the
minimum sentence of imprisonment does not fall
within the presumptive range for the
defendant's prior record or conviction level
and class of offense. Otherwise, the
defendant is not entitled to appeal this issue
as a matter of right but may petition the
appellate division for review of this issue by
writ of certiorari.
(a2) A defendant who has entered a plea of
guilty or no contest to a felony or
misdemeanor in superior court is entitled to
appeal as a matter of right the issue of
whether the sentence imposed: (1) Results from an incorrect finding of
the defendant's prior record level under G.S.
15A-1340.14 or the defendant's prior
conviction level under G.S. 15A-1340.21;
(2) Contains a type of sentence
disposition that is not authorized by G.S.
15A-1340.17 or G.S. 15A-1340.23 for the
defendant's class of offense and prior record
or conviction level; or
(3) Contains a term of imprisonment that
is for a duration not authorized by G.S. 15A-
1340.17 or G.S. 15A-1340.23 for the
defendant's class of offense and prior record
or conviction level.
. . .
(e) Except as provided in subsections (a1) and
(a2) of this section and G.S. 15A-979, and
except when a motion to withdraw a plea of
guilty or no contest has been denied, the
defendant is not entitled to appellate review
as a matter of right when he has entered a
plea of guilty or no contest to a criminal
charge in the superior court, but he may
petition the appellate division for a writ of
certiorari . . . .
N.C.G.S. § 15A-1444 (emphasis added). Pursuant to N.C. Gen. Stat.
§ 15A-979(b) (2001), “[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.”
Accordingly, under N.C.G.S. § 15A-1444(e), a defendant who has
entered a plea of guilty is not entitled to appellate review as a
matter of right, unless the defendant is appealing sentencing
issues or the denial of a motion to suppress, or the defendant has
made an unsuccessful motion to withdraw the guilty plea. See
N.C.G.S. § 15A-1444(e); State v. Dickson, ___ N.C. App. ___, ___
S.E.2d ___ (COA01-890, filed 18 June 2002). Applying N.C.G.S. §
15A-1444(e) to the instant case, we conclude that defendant is notentitled to appellate review as a matter of right as to Argument
Nos. 1, 2, 5, 6, 7 and 8, because those arguments do not involve
sentencing issues or the denial of a motion to suppress, and
defendant has not made a motion to withdraw his guilty plea.
(See footnote 2)
However, in Argument Nos. 3 and 4, defendant contends that the
trial court erred in denying his motions to suppress. Accordingly,
we examine the record on appeal to determine whether defendant
complied with the established case and statutory law, which
mandates that notice of intent to appeal the denial of a motion to
suppress be specifically given to the trial court and prosecution
prior to the entry of a guilty plea.
While N.C.G.S. § 15A-979(b) allows appellate review of the
denial of a motion to suppress upon appeal from a judgment entered
on a guilty plea, “[t]his statutory right to appeal is conditional,
not absolute.” McBride, 120 N.C. App. at 625, 463 S.E.2d at 404;
accord State v. Brown, 142 N.C. App. 491, 492, 543 S.E.2d 192, 193
(2001). Pursuant to this statute, “a 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.” McBride, 120N.C. App. at 625, 463 S.E.2d at 404 (citing State v. Reynolds, 298
N.C. 380, 396-97, 259 S.E.2d 843, 853 (1979). This Court has held
that such “notice must be specifically given.” Id. (emphasis in
original).
The propriety of a rule nearly identical to ours was addressed
by the United States Supreme Court in Lefkowitz v. Newsome, 420
U.S. 283, 43 L. Ed. 2d 196 (1975). There the United States Supreme
Court noted:
Once the defendant chooses to bypass the
orderly procedure for litigating his
constitutional claims in order to take the
benefits, if any, of a plea of guilty, the
State acquires a legitimate expectation of
finality in the conviction thereby obtained.
Lefkowitz, 420 U.S. at 289, 43 L. Ed. 2d at 202. Similarly, in
State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), our Supreme
Court supported the reasoning behind this limitation on the
statutory right to appeal as follows:
The plea bargaining table does not
encircle a high stakes poker game. It is the
nearest thing to arm's length bargaining the
criminal justice system confronts. As such,
it is entirely inappropriate for either side
to keep secret any attempt to appeal the
conviction.
Id. at 397, 259 S.E.2d at 853.
As stated by this Court in McBride:
Once a defendant strikes the most
advantageous bargain possible with the
prosecution, that bargain is incontestable by
the state once judgment is final. If the
defendant may first strike the plea bargain,
“lock in” the State upon final judgment, and
then appeal a previously denied suppression
motion, it gets a second bite at the apple, abite usually meant to be foreclosed by the
plea bargain itself.
McBride, 120 N.C. App. at 626, 463 S.E.2d at 405.
In the instant case, the Transcript of Plea states the
following terms and conditions:
Defendant pleads guilty to first degree
burglary and second degree murder. Defendant
preserves his right to appeal any and all
issues which are so appealable pursuant to
North Carolina statutory law and North
Carolina case law and pursuant to this plea
agreement.
In addition, the transcript shows that the trial court asked
defendant if these were the terms and conditions of his guilty plea
and defendant answered in the affirmative. The State maintains in
its motion to dismiss that the language in the Transcript of Plea
and the exchange between the trial court and defendant does not
constitute specific notification that defendant intended to appeal
the denial of his motions to suppress. Defendant counters by
arguing that the language in the Transcript of Plea is sufficient
notification.
Upon review of the trial transcript, we note that defendant
failed to object when the trial court denied on the record those
motions to suppress which defendant now asks this Court to review
on appeal. Further, as the State points out, the record on appeal
contains no written rulings or findings of fact related to the
trial court's denial of these motions to suppress, nor were the
trial court's findings of fact and conclusions of law made part of
the trial transcript. It appears from the transcript and record on
appeal that the trial court denied defendant's motions to suppress,without objection by defendant, and then failed to enter on the
record the findings of fact and conclusions of law in support of
its denials. In light of this record, we doubt that the State and
the trial court were made aware prior to entry of defendant's
guilty plea that defendant intended to appeal the denial of those
suppression motions now raised on appeal. Defendant failed to
object when the trial court denied his motions to suppress on the
record and the motions to suppress seem to have been forgotten as
the trial proceeded. Accordingly, we conclude that the language in
the Transcript of Plea that defendant “preserved his right to
appeal any and all issues which are so appealable” was not
sufficiently specific notice of defendant's intent to appeal the
denial of his motions to suppress. If defendant wished to preserve
his right to appeal the denial of those motions to suppress,
defense counsel need only have insisted that the Transcript of Plea
state that defendant was “reserving his right to appeal the Court's
denial of his motions to suppress pursuant to N.C.G.S. § 15A-
979(b).” Having failed to do so, we hold that defendant has waived
appellate review as a matter of right as to Argument Nos. 3 and 4
and we dismiss defendant's appeal as to the denial of defendant's
motions to suppress.
(See footnote 3)
Having concluded that defendant has no right to appeal as to
the issues raised in Argument Nos. 1-8, we turn to defendant's
request that this Court grant a writ of certiorari to address the
merits of defendant's arguments.
While N.C.G.S. § 15A-1444(e) allows a defendant to petition
for writ of certiorari after entering a guilty plea, this Court is
limited to issuing a writ of certiorari
in appropriate circumstances . . . to permit
review of the judgments and orders of trial
tribunals when the right to prosecute an
appeal has been lost by failure to take timely
action, or when no right of appeal from an
interlocutory order exists, or for review
pursuant to G.S. 15A-1422(c)(3) of an order of
the trial court denying a motion for
appropriate relief.
N.C. R. App. P. 21(a)(1) (2002). In State v. Dickson, ___ N.C.
App. ___, ___ S.E.2d ___ (COA01-890, filed 18 June 2002), this
Court recently reiterated that
The North Carolina Constitution “gives
exclusive authority to [our] Supreme Court to
make rules of practice and procedure for the
appellate division,” thus, where, as here,
“the North Carolina General Statutes conflict
with Rules of Appellate Procedure, the Rules
of Appellate Procedure will prevail.”
Id. at ___, ___ S.E.2d at ___ (quoting Neasham v. Day, 34 N.C. App.
53, 55-56, 237 S.E.2d 287, 289 (1977)). In the instant case,
defendant has not failed to take timely action, is not attempting
to appeal from an interlocutory order, and is not seeking review of
an order of the trial court denying a motion for appropriate
relief. Thus, this Court does not have the authority to issue awrit of certiorari. Accordingly, because defendant does not have
a right to appeal and this Court is without authority to grant a
writ of certiorari, the State's motion to dismiss defendant's
appeal is allowed and defendant's appeal is dismissed as to
Argument Nos. 1-8 raised in defendant's brief.
Finally, we address the one issue raised by defendant which he
is entitled to appeal as a matter of right under N.C.G.S. § 15A-
1444(e). Defendant contends that the trial court erred in finding
as a non-statutory aggravating factor that the murder was committed
with malice, premeditation and deliberation.
First, defendant argues that the trial court erred in finding
this aggravating factor because the jury had convicted defendant of
murder in the second degree after a trial on the charge of murder
in the first degree, thereby demonstrating to the trial judge that
premeditation and deliberation was not supported by the evidence.
In support of his argument, defendant relies on the Supreme Court's
decision in State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988).
In Marley, the defendant was tried before a jury on a charge
of murder in the first degree and convicted of murder in the second
degree. On appeal, the defendant contended that the sentencing
judge was precluded by considerations of due process from finding
as an aggravating factor that defendant acted with premeditation
and deliberation. The Supreme Court agreed, reasoning as follows:
To allow the trial court to use at
sentencing an essential element of a greater
offense as an aggravating factor, when the
presumption of innocence was not, at trial,
overcome as to this element, is fundamentallyinconsistent with the presumption of innocence
itself.
We conclude that due process and
fundamental fairness precluded the trial court
from aggravating defendant's second degree
murder sentence with the single element--
premeditation and deliberation--which, in this
case, distinguished first degree murder after
the jury had acquitted defendant of first
degree murder.
Marley, 321 N.C. at 425, 364 S.E.2d at 139.
We disagree with defendant's contention that Marley controls
the resolution of the issue in the instant case. In the instant
case, defendant was indicted and tried for murder in the first
degree and subsequently pled guilty to murder in the second degree.
As earlier noted, the trial court, acting within its limited legal
discretion, did not accept the jury's verdict of guilty of murder
in the second degree. A verdict is not complete until it is
accepted by the court. Abraham, 338 N.C. at 359, 451 S.E.2d at
139; State v. Rhinehart, 267 N.C. 470, 481, 148 S.E.2d 651, 659
(1966). Thus, unlike in Marley, here there was no actual acquittal
of defendant on the charge of murder in the first degree and no
binding jury determination as to whether the murder was committed
with premeditation and deliberation.
We find that the instant case is controlled by the Supreme
Court's decisions in State v. Melton, 307 N.C. 370, 298 S.E.2d 673
(1983) and State v. Brewer, 321 N.C. 284, 362 S.E.2d 261 (1987).
In Melton, the defendant was indicted for murder in the first
degree, but the State agreed not to try the defendant for murder in
the first degree in exchange for the defendant's plea of guilty tomurder in the second degree. At sentencing, the judge found that
the killing was done with premeditation and deliberation. On
appeal, the defendant argued "that fundamental fairness requires
that facts underlying charges which have been dismissed pursuant to
a plea bargain cannot be used during sentencing for the admitted
charge.” Melton, 307 N.C. at 376, 298 S.E.2d at 678. Noting that
"[t]he mere fact that a guilty plea has been accepted pursuant to
a plea bargain does not preclude the sentencing court from
reviewing all of the circumstances surrounding the admitted offense
in determining the presence of aggravating or mitigating factors,"
the Supreme Court held that “[a]s long as they are not elements
essential to the establishment of the offense to which the
defendant pled guilty, all circumstances which are transactionally
related to the admitted offense and which are reasonably related to
the purposes of sentencing must be considered during sentencing.”
Id. at 377-78, 298 S.E.2d at 678-79 (citations omitted). The Court
further held that, although the State agreed not to prosecute the
defendant for murder in the first degree, the fact that he
premeditated and deliberated the killing was transactionally
related to the second degree murder conviction and was therefore
properly considered by the judge during sentencing. Id.
In Brewer, the defendant was charged with murder in the first
degree and entered a plea of guilty to murder in the second degree.
Upon being sentenced to life imprisonment, the defendant appealed
assigning error to the trial judge's finding of premeditation and
deliberation as a non-statutory aggravating factor. The SupremeCourt again held that the fact that the defendant premeditated and
deliberated the killing was transactionally related to the offense
of murder in the second degree and was therefore properly
considered by the sentencing judge. Brewer, 321 N.C. at 286, 362
S.E.2d at 262. Both Brewer and Melton hold that a determination by
the preponderance of the evidence that a defendant premeditated and
deliberated a killing is reasonably related to the purposes of
sentencing. Brewer, 321 N.C. at 286, 362 S.E.2d at 262; Melton,
307 N.C. at 378, 298 S.E.2d at 679. Therefore, a sentencing judge
is not precluded from finding premeditation and deliberation as an
aggravating factor even though the State has accepted a defendant's
plea of guilty to second degree murder.
In both Melton and Brewer, the Court noted that a plea of
guilty to second degree murder is fundamentally different from a
conviction of second degree murder when the defendant has been
tried on a charge of first degree murder. Brewer, 321 N.C. at 286
n. 1, 362 S.E.2d at 262; Melton, 307 N.C. at 375-76 n. 2, 298
S.E.2d at 677.
The facts in the instant case are similar to those in Melton
and Brewer. Defendant was tried for first degree murder based on
premeditation and deliberation and the State accepted a plea of
guilty to second degree murder. Defendant was never convicted of
second degree murder. As the Supreme Court held in Melton and
Brewer, we hold that acceptance of defendant's guilty plea to
second degree murder did not prevent the sentencing judge from
finding the non-statutory aggravating factor that the murder wascommitted with premeditation and deliberation and using that factor
as the basis for imposing a sentence greater than the presumptive
term.
Defendant also argues that the trial court erred in finding as
an aggravating factor that the murder was committed with malice,
premeditation and deliberation, because malice is an element of
second degree murder and the sentencing judge may not find as an
aggravating factor an essential element of the offense for which
defendant is being sentenced.
At the sentencing hearing, the State requested that the trial
court find as a non-statutory aggravating factor that the murder
was committed with premeditation and deliberation. Defense counsel
responded by arguing that the overwhelming evidence showed that the
murder was not premeditated and deliberated. The trial court then
found on the record that the murder was committed with malice,
premeditation and deliberation. The State had not argued that the
murder was committed with malice and defense counsel in his
response did not use the term malice. Accordingly, we conclude
that the trial court's reference to the murder being committed with
malice was a lapsus linguae, simply an inadvertent mistake, which
did not prejudice defendant. We further conclude that the trial
court's inclusion of the term malice next to box 20 on the Felony
Judgment Findings of Aggravating and Mitigating Circumstances form
was simply a clerical error. Therefore, we affirm the sentence
imposed by the trial court and remand for correction of the
clerical error contained on the sentencing form. In summary, we grant the State's motion to dismiss defendant's
appeal as to the first eight issues raised in defendant's brief.
This dismissal is without prejudice to defendant's right to seek an
evidentiary hearing in superior court to determine whether his
guilty plea was entered reserving the right to appeal the denial of
his motions to suppress. We affirm the aggravated sentence for
second degree murder imposed by the trial court and remand for
correction of the clerical error contained on the sentencing form.
Dismissed in part, affirmed in part, and remanded for
correction of clerical error.
Judges WYNN and MARTIN concur.
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