Opinion
No. COA09-1288
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgment entered 7 May 2009 by Judge W. Allen Cobb, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 7 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State Sarah Jessica Farber for defendant-appellant.
Sampson County No. 08 CRS 53068.
After the trial court denied his motion to suppress on 23 April 2009, defendant pled guilty on 7 May 2009 to trafficking in marijuana. The trial court imposed an active sentence of 25-30 months. Defendant gave notice of appeal and on 5 October 2009, filed a record on appeal in this Court. All of defendant's assignments of error pertain to his motion to suppress the evidence seized during a warrantless search of defendant's residence. Defendant's sole argument in his brief concerns the denial of the motion to suppress.
A defendant who pleads guilty is entitled to appeal pursuant to N.C. Gen. Stat. § 15A-979(b) from an order denying a motion to suppress. N.C. Gen. Stat. § 15A-1444(e)(2009). "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), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996). To preserve this statutory right of appeal, defendant "must give notice of his intention [to appeal] 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), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980). Defendant must show in the record on appeal that he notified the prosecution of his intention to appeal prior to finalization of the plea agreement or else his failure to make this showing will result in dismissal of the appeal. State v. Brown, 142 N.C. App. 491, 492-93, 543 S.E.2d 192, 193 (2001).
Both defendant and the State assert in their briefs that defendant preserved his right of appeal when he entered his plea. Defendant does not cite to any portion in the record in support of this assertion. The State cites the following statement in the "Organization of the Trial Tribunal" section on page one of the record as showing defendant preserved his right of appeal: "Defendant entered a plea of guilty reserving his right to appeal the denial of the motion to suppress on May 7, 2009." The State also cites the entire transcript of plea form contained in the addendum to the record on appeal.
We held in Brown that a statement in the organization of the trial tribunal section is not an adequate substitute for actual proof of compliance. Id. at 493, 543 S.E.2d at 194. In Brown, nothing in the transcript of plea form supported the State's assertion that defendant preserved his right to appeal while pleading guilty. Id. at 492, 543 S.E.2d at 193. We noted that defendant could file a motion for appropriate relief in the superior court seeking a determination whether defendant preserved his right to appeal, and if so determined, defendant could file a petition for writ of certiorari with the Court of Appeals. Id. at 493, 543 S.E.2d at 194.
We hold that Brown is controlling. There is nothing in the transcript of plea form to indicate that defendant notified the prosecutor of his intention to appeal or otherwise preserved his right to appeal prior to finalization of the plea agreement. The transcript of plea form contains no terms or conditions of any plea agreement. The transcript of the plea and sentencing hearing was not included with the record on appeal so we are unable to determine whether defendant in open court preserved his right to appeal prior to entering the plea. In the absence of such proof in the record, the appeal must be dismissed.
DISMISSED.
Judges HUNTER, ROBERT C. and BRYANT concur.
Report per Rule 30(e).