State v Cummings, 163 NC App 611 (03-803) 04/06/2004

Appeal by defendant from judgments entered 7 November 2002 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 15 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General Fred Lamar, for the State.

Carlton M. Mansfield for defendant appellant.

McCULLOUGH, Judge.

    On 12 February 2001, the Robeson County grand jury indicted defendant on charges of trafficking in cocaine by manufacturing, trafficking in cocaine by possession, maintaining a drug dwelling, possession with intent to sell and deliver cocaine, and possession with intent to manufacture by repacking marijuana. The Robeson County grand jury returned additional indictments on 12 March 2001 charging defendant with trafficking in cocaine by manufacturing, trafficking in cocaine by possession, trafficking in marijuana by manufacturing, trafficking in marijuana by possession, possession with intent to sell and deliver cocaine, possession with intent to manufacture marijuana, possession with intent to sell and delivermarijuana, and possession of drug paraphernalia.
    On 5 September 2001, defendant filed motions to suppress evidence seized from his home pursuant to search warrants on 29 February 2000 and 17 August 2000. Following a hearing on 11 December 2001, Judge James F. Ammons summarily denied defendant's motions to suppress the seized evidence. Defendant then pled guilty to all thirteen charges pursuant to a plea agreement on 5 March 2002. Under the terms of the plea agreement, defendant received a continuance for sentencing during which time he was to “provide material assistance to the State . . . . In return, Defendant [would] receive sentencing consideration for his substantial assistance to the State.” If he rendered substantial assistance, the charges would be consolidated and he would receive a sentence of 61 to 83 months' imprisonment. In the event that defendant did not fully comply with the terms of the plea agreement, the trial court would impose consecutive sentences totaling 210 to 261 months' imprisonment for two trafficking offenses.
    On 4 November 2002, defendant filed a motion to reveal the identity of the State's confidential source of information listed in the search warrants and for the trial court to reconsider his earlier motions to suppress. The trial court denied the motion at the sentencing hearing held on 6 November 2002. After hearing testimony from Special Agent Mark Wendell Oxendine of the State Bureau of Investigation, Judge Lewis found that defendant had not provided substantial assistance. In accordance with the terms of the plea agreement in the absence of substantial assistance, Judge Lewis sentenced defendant to consecutive sentences totaling 210 to 261 months' imprisonment for a class D trafficking offense and a class G trafficking offense. From the trial court's judgments, defendant appeals.
    Although defendant in his first argument seeks to argue that Judge Ammons erred by denying his motions to suppress evidence, a defendant is entitled to appellate review as a matter of right only in limited circumstances when he has pled guilty to a criminal charge in superior court. See N.C. Gen. Stat. § 15A-1444(e) (2003). While N.C. Gen. Stat. § 15A-979(b) (2003) allows review of an order finally denying a motion to suppress upon an appeal from a judgment entered upon a guilty plea, “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. The rule in this state is that notice must be specifically given.” State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995) (citations omitted), aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996). Because the record does not affirmatively show that defendant gave notice of any intention to appeal from the trial court's denial of his motions to suppress before plea negotiations were finalized, defendant has waived this right. As a result, this Court is without jurisdiction to address defendant's argument.
    In his second argument, defendant seeks to argue that Judge Lewis erred by denying his motion to reveal the identity of theconfidential source of information and to reconsider the motion to suppress evidence. Because defendant has waived the right as previously discussed, this Court is without jurisdiction to review the denial of the motions to suppress. Id. Furthermore, as Judge Lewis correctly noted at the sentencing hearing, she lacked the authority to reconsider Judge Ammons' earlier ruling on the motions to suppress. See State v. Duvall, 304 N.C. 557, 562, 284 S.E.2d 495, 498-99 (1981).
    In his final argument, defendant contends the trial court erred by failing to find that he had complied with the terms of the plea agreement. Because defendant pled guilty, however, he is not entitled to review of his convictions, see N.C. Gen. Stat. § 15A-1444(a) (2003), or of the presumptive-range sentences imposed for the two trafficking offenses. See N.C. Gen. Stat. § 15A-1444(a1). Defendant's right to appellate review of his sentences would have been limited to a review of whether the sentences imposed resulted from an incorrect calculation of his prior record level, for which defendant has not sought review. See N.C. Gen. Stat. § 15A-1444(a2)(1). To the extent that defendant is arguing a failure to comply with his plea agreement, he is not entitled to appellate review because he has not made a motion to withdraw his guilty plea. See N.C. Gen. Stat. § 15A-1444(e); see also State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). The issue is not properly before this Court. Accordingly, we find no error.    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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