State v Weaver, (03-91) 05/18/2004

Appeal by defendant from judgment entered 1 August 2002 by Judge Daniel R. Green in the Superior Court in Catawba County. Heard in the Court of Appeals 13 November 2003.

Attorney General Roy Cooper, by Assistant Attorney General William McBlief, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    HUDSON, Judge.

    On 18 January 2001, defendant was arrested for resisting, delaying, and obstructing an officer and possession of a controlled substance. A Catawba County Grand Jury indicted defendant on 4 September 2001 for felonious possession of a Schedule II controlled substance and for resisting, delaying and obstructing an officer. On 13 December 2001, defendant moved to suppress physical evidence and any statements defendant made subsequent to his arrest. Defendant's motion to suppress was heard and denied at the 29 July 2002 Criminal Session of Superior Court in Catawba County. On that same day, defendant entered an Alford plea to the charges, pursuant to which the trial court consolidated the offenses and sentenceddefendant to a term of six to eight months imprisonment. The trial court then suspended the sentence and placed defendant on three years special supervised probation with a requirement that he serve forty-five days in jail.
    Defendant appeals the denial of his motion to suppress physical evidence seized and any statements he made to law enforcement officers subsequent to his arrest. Defendant contends that he was unconstitutionally seized by the officer because the officer had no probable cause or reasonable suspicion to believe that defendant was engaged in any criminal activity. For the following reasons, however, we decline to reach the merits of defendant's argument and dismiss the appeal.
    Pursuant to G.S. § 15A-979(b) (2001), “an 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 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 G.S. § 15A-1444(e); State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002).
    While 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, “this statutory right to appeal is conditional, not absolute.” State v. McBride, 120 N.C. App. at 625, 463 S.E.2d at404; 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, 120 N.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), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980). This Court has held that such “notice must be specifically given.” Id.(emphasis in original).
    In Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975), the United States Supreme Court addressed the propriety of a rule nearly identical to ours by noting that:
    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.
Id. at 289, 43 L. Ed. 2d at 202. In a similar context, 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.
State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979).
In McBride, this Court stated that:
    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, a bite usually meant to be foreclosed by the plea bargain itself.
McBride, 120 N.C. App. at 626, 463 S.E.2d at 405.
    In his brief, defendant directs us to page 37 of the transcript and asserts that, “[w]hen the trial court denied his motion to suppress . . ., defendant entered an Alford plea to the charges, while reserving his right to appeal the denial of his motion . . . .” While the colloquy on page 37 of the transcript does evidence the entry of an Alford plea immediately after a bench conference and a recess, there is no mention of defendant's reservation of a right to appeal the denial of his motion to suppress. We note, however, that the following exchange took place between the court, defense counsel, and counsel for the State after defendant entered his plea and was sentenced:
    [Defense Counsel]: Your Honor, lastly, Mr. Weaver wishes to enter notice of appeal to the North Carolina Court of Appeals regarding the motion to suppress. I assume that matter goes to the North Carolina public defender's office; is that right?

    [Prosecutor]: I'm not sure how they handle that.

    THE COURT: I'm not sure you can give notice of appeal after a guilty plea.

    [Defense Counsel]: I believe you can. I believe the prayer for relief -- you can appeal from the suppression hearing and request that the plea be withdrawn, is that correct?

    THE COURT: You can enter his notice of appeal, and then I'll let Mr. Clark deal with the Court of Appeals on it.

    [Prosecutor]: Okay.

    [Defense Counsel]: All right. Thank you, Judge.
The foregoing exchange is the only reference to defendant's intent to appeal. After reviewing the entire record, including the transcript of the suppression hearing and the written “Transcript of Plea,” we find nothing to indicate that defendant gave the required notice of his intent to appeal the denial of his motion to suppress to the State and the trial court either “during plea negotiations” or prior to entry of his guilty plea. McBride, 120 N.C. App. at 625, 463 S.E.2d at 404. We are unable to distinguish this record from the record in Brown. Thus, as we did in Brown, we dismiss this appeal without prejudice to defendant's right to seek an evidentiary hearing in superior court to determine whether or not the guilty plea was entered reserving defendant's right to appeal the denial of his motion to suppress.
    Dismissed.
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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