An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1542


Filed: 6 September 2005


         v.                        Guilford County
                                Nos. 01 CRS 77202-03

    Appeal by defendant from judgment entered 19 May 2004 by Judge Lindsay R. Davis, Jr., in the Superior Court in Guilford County. Heard in the Court of Appeals 22 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.

    Michelle FormyDuval Lynch, for defendant-appellant.

    HUDSON, Judge.

    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. Defendant appeals.
    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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