STATE OF NORTH CAROLINA
v. Buncombe County
No. 00 CRS 63103
TRAVIS EUGENE McAFEE, 00 CRS 63105-06
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Hall & Hall, by Douglas L. Hall, for defendant-appellant.
EAGLES, Chief Judge.
Travis Eugene McAfee (“defendant”) was charged with felony
possession of cocaine, second degree trespass, and misdemeanor
possession of marijuana. After the trial court denied defendant's
motion to suppress, defendant pled guilty to the charges in
exchange for consolidation of the offenses for sentencing. The
trial court sentenced defendant to a minimum term of imprisonment
of six months and a maximum term of eight months. The trial court
suspended defendant's sentence and placed him on supervised
probation for 36 months. Defendant appeals.
For the following reasons, we grant the State's motion to
dismiss the appeal. In order to appeal pursuant to G.S. § 15A-979(b) from an order
denying a motion to suppress, a defendant must give notice of his
intention to appeal to the prosecutor and the trial court before
plea negotiations are finalized or his right of appeal will be
waived. State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853
(1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980).
“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.” State v. McBride, 120 N.C. App. 623, 625,
463 S.E.2d 403, 404 (1995), aff'd, 344 N.C. 623, 476 S.E.2d 106
(1996). The notification must explicitly reference the motion to
suppress. See, e.g., State v. Pimental, __ N.C. App. __, __, 568
S.E.2d 867, 870 (2002); State v. Stevens, __ N.C. App. __, __, 566
S.E.2d 149, 150 (2002).
Here, the transcript of the motion hearing shows that at the
conclusion of the hearing on the motion to suppress and the
announcement of the trial court's decision, defendant's counsel
stated that he “would like to reserve our right to appeal that,
Your Honor.” However, the transcript of the subsequent plea
proceeding contains no indication that defendant preserved his
right to appeal from the denial of the motion to suppress before he
pled guilty. The “Transcript of Plea” form also contains no
notation that defendant gave notice of his intent to appeal. The
“Transcript of Plea” form simply states the following as terms and
conditions of the plea: “The defendant will plead guilty to thecharges and the State agrees to consolidate the charges for
sentencing.”
Furthermore, the record on appeal does not contain a notice of
appeal. The record on appeal cites counsel's statement at the
conclusion of the hearing on the motion to suppress as the notice
of appeal. This statement could not serve as oral notice of appeal
because at the time it was made, defendant had not pled guilty and
judgment had not been entered.
Based upon the record before us, we are constrained to
conclude that defendant has not shown that he preserved his right
to appeal from the order denying his motion to suppress. As we
stated in Pimental, if defendant still desired to appeal after
entering the plea, then he should have included language in the
“Transcript of Plea” to indicate that he was preserving his right
to appeal the denial of the motion to suppress. Pimental, __ N.C.
App. at __, 568 S.E.2d at 871. Having failed to do so, defendant
waived his right of appellate review as a matter of right.
We therefore dismiss the appeal.
Dismissed.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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