An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1066
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Filed: 15 April 2003


         v.                        Nash County
                                Nos.    99 CRS 7340-41

    Appeal by defendant from judgments entered 13 March 2002 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 7 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.

    Terry W. Alford for defendant-appellant.

    MARTIN, Judge.

    Defendant was indicted for first-degree murder and robbery with a dangerous weapon. He pled guilty to second-degree murder and robbery with a dangerous weapon. Under the terms of the plea, defendant was to be sentenced in the aggravated range but otherwise in the discretion of the trial court. The court imposed consecutive, aggravated sentences of 196 to 245 months' imprisonment for the murder and 64 to 86 months for the robbery. Defendant gave timely notice of appeal.
    By his first two assignments of error, defendant raises issues surrounding the denial of his motion to suppress statements he made to police. “[W]hen a defendant intends to appeal from the denialof a suppression motion . . ., he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right[.]” State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (citing State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980)). Defendant concedes he failed to preserve these issues for review but asks this Court to address his assignments of error pursuant to our discretionary authority under N.C.R. App. P. 2. The State has moved to dismiss these assignments of error. Inasmuch as the State negotiated the terms of defendant's plea agreement without notice that he would retain his right to appeal the denial of his motion to suppress, we grant the State's motion and dismiss these claims. See State v. McBride, 120 N.C. App. 623, 463 S.E.2d 403 (1995), affirmed, 344 N.C. 623, 476 S.E.2d 106 (1996).
    Defendant shows that the trial court failed to make findings of aggravating and mitigating factors as required under Structured Sentencing to support his aggravated sentence. See State v. Bright, 135 N.C. App. 381, 382-83, 520 S.E.2d 138, 139-40 (1999) (citing N.C. Gen. Stat. § 15A-1340.16(b), (c) (2001)). The State concedes error on this issue. Accordingly, we remand to the trial court for re-sentencing. Id.
    Dismissed in part; remanded for resentencing.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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