An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-438


Filed: 21 March 2006


v .                                     Union County
                                        No. 02CRS051377

    Appeal by defendant from judgment entered 2 August 2004 by Judge Michael E. Beale in Union County Superior Court. Heard in the Court of Appeals 24 January 2006.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ronald M. Marquette, for the State.

    Reita P. Pendry for defendant-appellant.

    HUNTER, Judge.

    Michael Todd McClain (“defendant”) appeals from a guilty plea to first degree murder entered 2 August 2004. For the reasons stated herein, we affirm the trial court's denial of defendant's motion to suppress.
    The evidence tends to show that Timothy Mojzic (“Mojzic”), a manager of a Wendy's located in Marshville, North Carolina, was shot at that restaurant on the morning of 5 March 2002 in the course of a robbery. The subsequent investigation led the police to question defendant on 14 March 2002. Defendant agreed to go to the sheriff's office and give a statement. Defendant was not placed under arrest at that time, but sat at a table in a lobby of the sheriff's office and gave a statement to Captain Bill Tucker(“Capt. Tucker”) regarding other charges pending against him, but denied involvement in the robbery and shooting at the restaurant. Capt. Tucker then took defendant, at defendant's request, to his girlfriend's apartment.
    Defendant was arrested on 15 March 2002 and read his Miranda rights. Defendant signed a waiver of rights. After questioning by Capt. Tucker, defendant was left in the custody of Sergeant David Linto (“Sgt. Linto”). Defendant initiated a conversation with Sgt. Linto, and explained he had not been truthful in denying his involvement to Capt. Tucker in the robbery and shooting at Wendy's. Defendant stated that he had served as a look-out for the robbery, and told Sgt. Linto that he could retrieve the gun used in the shooting. Defendant, accompanied by officers, left the station and directed the officers to the location of the buried weapon. They then returned to the sheriff's office where Capt. Tucker reduced defendant's statement to writing. Defendant was asked to read along as Capt. Tucker read over the completed statement, and defendant then signed each page and initialed at least one change. Defendant also sketched a rough diagram of where co-defendants were during the robbery.
    On 16 March 2004, defendant again asked to see Sgt. Linto and Capt. Tucker. After reading defendant his Miranda rights, defendant again signed a waiver. Defendant explained he had not told the entire truth in his earlier statement, and gave another statement that he had gone inside the restaurant carrying the gun and had accidentally shot Mojzic. Capt. Tucker again transcribedthe statement. Defendant reviewed the statement, made some changes, and then signed the statement. Defendant also drew two separate diagrams of the incidents.
    On 18 March 2004, Capt. Tucker spoke with defendant again at defendant's request. Capt. Tucker read defendant his Miranda rights, which defendant waived. Defendant then told Capt. Tucker about other robberies in which he had been involved.
    On 7 July 2004, defendant moved to suppress the statements made after waiver of his Miranda rights on the grounds that he was mentally retarded, and as a result could not voluntarily, knowingly, and intelligently waive his rights. Defendant reserved his right to appeal if the motion to suppress was denied, and subsequently pled guilty.
    An evidentiary hearing was held on the motion to suppress. Expert testimony was offered by both defendant and the State as to whether defendant was mentally retarded. Testimony was also offered by defendant and the officers who interviewed him in the course of the investigation. In an order entered 29 July 2004, the trial court found that “[d]efendant had the ability to understand and waive his Miranda rights[,]” and denied defendant's motion to suppress.
    Defendant entered a plea of guilty to the charge of first degree murder on 2 August 2004 and was sentenced to life imprisonment without parole. Defendant appeals.

    Defendant first contends that the trial court erred in denying defendant's motion for change of venue. We do not reach this issue as we find it is not properly before this Court on appeal.
    An appeal in criminal matters is purely a creation of statute. “Because defendant entered a guilty plea, his right to appeal is limited to those issues found in N.C.G.S. §§ 15A-979 (1988) (motions to suppress evidence) and 15A-1444 (Cum. Supp. 1996) (sentencing).” State v. Flowers, 128 N.C. App. 697, 703, 497 S.E.2d 94, 98 (1998). Defendant's appeal as to venue is not permitted by either statute, and is therefore not properly before this Court for review.

    Defendant next contends the trial court erred in its denial of his motion to suppress. We disagree.
    We first address the State's contention that this matter is not properly before us on appeal. As noted supra, defendant's right to appeal is limited. Our statutes expressly permit a defendant to appeal from a denial of a motion to suppress when a guilty plea is entered. N.C. Gen. Stat. § 15A-979(b) (2005). However, our Supreme Court has held that “when a defendant intends to appeal from a suppression motion denial pursuant to G.S. 15A-979(b), he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute.” State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979).    Here, the State contends defendant failed to give notice of his intention to appeal the suppression motion until after the acceptance of the guilty plea. We find the case of State v. Hernandez, ___ N.C. App. ___, 612 S.E.2d 420 (2005), instructive. In Hernandez, this Court noted that the defendant's motion to suppress “explicitly stated '[n]otice is given that defendant reserves the right to appeal if this motion is denied and there is a subsequent plea of guilty.'” Id. at ___, 612 S.E.2d at 423. Further, the Court found that the hearing on the motion to suppress preceded the acceptance of the plea, entry of judgment, and oral notice of appeal by only one day. Id. Finally, the Court observed that no objection was made to the notice of appeal made in open court by defendant. Id. Hernandez held that, under those circumstances, the defendant had given notice of his appeal sufficient to preserve the issue for review. Id.
    Here, defendant also explicitly stated in his motion that he reserved his right to appeal the motion to suppress. Defendant's motion to suppress was denied three days prior to the acceptance of defendant's guilty plea and entry of judgment. Further, no objection was made to defendant's statements regarding appeal of the motion to suppress made during the sentencing phase. As we find defendant properly gave notice of his appeal to preserve the issue, we proceed to the merits of the argument.
    “N.C. Gen. Stat. § 15A-977(f) (2003) requires a trial court to make findings of fact and conclusions of law to support its order granting or denying a defendant's motion to suppress evidence.”State v. Duff, ___ N.C. App. ___, ___, 615 S.E.2d 373, 377, supersedeas denied and disc. review denied, 359 N.C. 854, 619 S.E.2d 853 (2005). “Where a defendant contends that his confession to law enforcement officers was involuntary, '[s]uch findings and conclusions must be determinative on the issue of voluntariness.'” Id. (quoting State v. James, 321 N.C. 676, 685, 365 S.E.2d 579, 585 (1988)). “'The standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact “are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.”'” State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (citations omitted). “'However, the conclusions of law drawn from the findings of fact are reviewable by the appellate courts.'” Duff, ___ N.C. App. at ___, 615 S.E.2d at 377 (citation omitted).
    Defendant contends that the trial court erred in its finding, “based on the totality of the evidence, that the Defendant is not mentally retarded[,]” and thus erred in finding that defendant knowingly waived his right to remain silent. A review of the record shows that conflicting evidence was offered by experts who testified at the hearing as to whether defendant was mentally retarded or malingering. The record further shows that competent evidence supports the trial court's finding that defendant was not mentally retarded, in the form of expert testimony, test results, prior school records, and defendant's own testimony before the trial court. As competent evidence supports the trial court's finding, and the trial court made additional findings as to thevoluntary nature of defendant's confession to officers, we therefore find no error in the trial court's denial of defendant's motion to suppress.
    As defendant's appeal as to change of venue is not properly before this Court, and as the trial court's findings are supported by competent evidence in denial of defendant's motion to suppress evidence, we affirm the judgment.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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