STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 05 CRS 50495
FRANK BERNARD MCLAURIN, JR., 05 CRS 20113
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Following the denial of his motion to suppress evidence,
defendant Frank Bernard McLaurin, Jr. pled guilty to possession
with intent to sell and deliver cocaine and to attaining habitual
felon status. Defendant now appeals from the judgment entered upon
that guilty plea, arguing: (1) his motion to suppress was
improperly denied because a warrantless search violated his
constitutional rights, and (2) he was denied the right to effective
assistance of counsel when his trial counsel failed to notify the
trial court of defendant's intent to appeal the denial of the
motion to suppress. Because defendant failed to give notice of his
intent to appeal the denial of the motion to suppress as required
under N.C. Gen. Stat. § 15A-979 (2005) and because we do not havejurisdiction to review defendant's ineffective assistance of
counsel claim, we must dismiss defendant's appeal.
On 13 January 2005, the Winston-Salem police department
received a phone call reporting that a man was flagging down cars
on New Hope Road in an attempt to sell cocaine to the occupants.
The caller, who had previously made accurate reports of drug
activity in the neighborhood, described the man's clothing and the
direction in which he was walking. Police officers arrived on the
scene and approached a man, later identified as defendant, who met
the caller's description. Believing that defendant was attempting
to flee, the officers arrested and searched defendant, finding
cocaine and marijuana in his possession.
On 21 February 2005, defendant was indicted for possession with intent to sell and deliver cocaine, possession of marijuana, and loitering. On the same date, defendant was indicted for having attained habitual felon status. Prior to trial, defendant moved to suppress the evidence seized as a result of the officers' search. After the motion was denied, defendant pled guilty to possession with intent to sell or deliver cocaine and to being a habitual felon.
During sentencing, the trial court found as a mitigating factor that defendant had a support system in the community and sentenced defendant within the mitigated range to a term of 90 to 117 months imprisonment. Defendant timely appealed to this Court.
Defendant argues that the trial court erred by denying hismotion to suppress. A defendant who enters a guilty plea does not, however, have an automatic right to appeal the denial of a motion to suppress. Instead, he may only appeal if he gave the State or the trial court notice of his intent to appeal the denial of his motion to suppress prior to the entry of the guilty plea. See N.C. Gen. Stat. § 15A-979(b); State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795, 100 S. Ct. 2164 (1980); State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996). Defendant concedes in his brief that he did not give notice of his intent to appeal the denial of his motion to suppress. Thus, defendant waived his right to appellate review of that denial.
Defendant makes an alternative argument that his failure to give notice of his intent to appeal was due to the ineffective assistance of his trial counsel. By virtue of defendant's guilty plea, his right to appeal is, however, limited: "Except as provided in . . . G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court . . . ." N.C. Gen. Stat. § 15A-1444(e) (2005). Defendant's ineffective assistance of counsel claim does not fall within any of the categories of appeal permitted following a guilty plea. Accordingly, we lack jurisdiction to consider defendant's arguments. See State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d867, 872, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Defendant may, however, assert his claim in a motion for appropriate relief under N.C. Gen. Stat. § 15A-1420 (2005).
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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