by defendant from judgment entered 6 July 2017 by Judge
Thomas H. Lock in Johnston County Nos. 14 CRS 55188, 15 CRS
53276 Superior Court. Originally heard in the Court of
Appeals 20 September 2018, with opinion issued 2 October
2018. The defendant's petition for discretionary review
pursuant to N.C. Gen. Stat. § 7A-31 was allowed by the
Supreme Court of North Carolina on 19 August 2019 for the
limited purpose of remanding to this Court for
Attorney General Joshua H. Stein, by Assistant Attorney
General Nancy Dunn Hardison, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Katy Dickinson-Schultz, for defendant-appellant.
facts giving rise to this appeal are set forth in detail in
this Court's prior opinion. State v. Killette,
__ N.C. __, 818 S.E.2d 646, 2018 WL 4701970 (2018)
(unpublished). Defense counsel filed a motion to suppress the
items seized during the September 2014 search. The hearing on
this motion was held 3 May 2017. At the conclusion of the
hearing, the parties consented to the court ruling out of
session. The court signed a written order denying
Defendant's motion to suppress on 6 July 2017, which was
filed 7 July 2017.
counsel also filed a motion to suppress the items seized from
a June 2015 search. The hearing on this motion was held 18
May 2017. At the conclusion of this hearing, the trial court
orally denied the motion to suppress and entered a written
order memorializing its ruling filed on 7 June 2017.
July 2017, Defendant entered an Alford plea pursuant
to a plea arrangement with the State to the two counts of
manufacturing methamphetamine, alleged in 14 CRS 55188 and 15
CRS 53276. In exchange for the plea, the State dismissed the
remaining charges. The trial court consolidated the offenses
into one judgment, sentenced Defendant to a term of 120 to
156 months of imprisonment in accordance with the terms of
the plea arrangement. Defendant filed a handwritten notice of
appeal on 10 July 2017.
pro se notice of appeal was filed appealing
"the decision made in reference to the file number 14
CRS 055188 and 15 CRS 053276." The notice is addressed
"To The Clerk of Superior Court" and does not
reflect an appeal to this Court nor show that the notice was
served on the State. Nonetheless, appellate entries were
completed and appellate counsel was appointed.
Defendant's appellate counsel filed a petition for writ
of certiorari to allow Defendant to seek review to this
Intent to Appeal Denial of Motion to Suppress Evidence
sole argument on appeal is that the trial court erred by
denying his motion to suppress the evidence obtained from the
probation officer's search in September 2014. We dismiss
Defendant's attempted direct appeal for his failure to
preserve this issue and to provide notice to the State and
trial court when he entered his guilty plea.
Supreme Court of North Carolina has held "when a
defendant intends to appeal from the denial of a suppression
motion pursuant to [ N.C. Gen. Stat. § 15A-979(b)], he
must give notice of his intention to the prosecutor and to
the court before plea negotiations are finalized;
otherwise, he will waive the appeal of right provisions of
the statute." State v. Tew, 326 N.C. 732, 735,
392 S.E.2d 603, 605 (1990) (citation omitted) (emphasis
Court has repeatedly held that when a defendant pleads guilty
without first notifying the State of the intent to appeal a
suppression ruling, the defendant "has not failed to
take timely action," and thus "this Court is
without authority to grant a writ of certiorari."
State v. Pimental,153 N.C.App. 69, 77, 568 S.E.2d
867, 872, disc. review denied, 356 N.C. 442, 573
S.E.2d 163 (2002). Rather, as in other cases involving a
guilty plea, the right to appeal was lost because the
defendant pleaded guilty, thereby waiving the right to
appeal, and not because he failed "to take timely
action." Id. at 75-77, 568 S.E.2d at 871-72.
Under Appellate Rule 21, a petition for a writ of certiorari