STATE OF NORTH CAROLINA
v. Guilford County
Nos. 01 CRS 77202-03
JORGE RIOS ABONZA
a/k/a JORGE ABONZA RIOS,
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
Michelle FormyDuval Lynch, for defendant-appellant.
Defendant Jorge Rios Abonza, a/k/a Jorge Abonza Rios, was
charged with trafficking by possession of controlled substance,
possession with intent to sell or deliver a controlled substance,
and trafficking by transporting a controlled substance. Prior to
trial, defendant filed a motion to suppress evidence seized by an
allegedly illegal stop. The trial court conducted a suppression
hearing in which Sergeant Darren Koonce of the Greensboro Police
Department testified for the State and defendant testified on his
own behalf. After the trial court denied defendant's motion to
suppress, defendant pled guilty to trafficking by possession andtrafficking by transporting. The trial court sentenced defendant
to a consolidated sentence of 175 to 219 months imprisonment.
The sole issue on appeal is whether the trial court erred in denying defendant's motion to suppress. However, because defendant failed to preserve this assignment of error for our review, we do not reach the merits of defendant's arguments.
N.C. Gen. Stat. § 15A-979(b) (2003) states that 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. However, this statutory right to appeal is conditional, not absolute. State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), affirmed, 344 N.C. 623, 476 S.E.2d 106 (1996). Pursuant to N.C. Gen. Stat. § 15A-979(b), 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. Id.
Upon review of the motion hearing transcript, we note that defendant failed to object when the trial court denied on the record his motion to suppress. Furthermore, 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. Only after the pronouncement of sentence does counselstate that defendant would like to appeal the earlier hearing. Based upon the record before us, we conclude that defendant has not preserved his right to appeal from the order denying his motion to suppress. As this Court stated in State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002), if defendant desired to appeal after entering the plea, 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. Id. at 75, 568 S.E.2d at 871. Because defendant failed to do so, he waived his right of appellate review.
Judges MCGEE and LEVINSON concur.
Report per Rule 30(e).
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