{ "id": 9441994, "name": "STATE OF NORTH CAROLINA v. WILLIAM EARL BROWN", "name_abbreviation": "State v. Brown", "decision_date": "2001-03-20", "docket_number": "No. COA00-133", "first_page": "491", "last_page": "496", "citations": [ { "type": "official", "cite": "142 N.C. App. 491" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "287 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "year": 1975, "pin_cites": [ { "page": "696", "parenthetical": "\"The office of this item is simply to permit routine confirmation by the appellate court of the subject matter jurisdiction or \"competence\" of the particular trial judge and tribunal....\"" } ], "opinion_index": 0 }, { "cite": "51 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "229 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167262 ], "year": 1948, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0626-01" ] }, { "cite": "29 L. Ed. 2d 859", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "167 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644-45" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "181 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565626 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0058-01" ] }, { "cite": "184 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "280 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570109 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0132-01" ] }, { "cite": "476 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867682 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0623-01" ] }, { "cite": "468 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798964, 798868, 798966, 798873, 798843 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0126-02", "/nc/343/0126-05", "/nc/343/0126-04", "/nc/343/0126-03", "/nc/343/0126-01" ] }, { "cite": "463 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "404" }, { "page": "404" }, { "page": "404", "parenthetical": "defendant must notify the State and the trial court of his intent to appeal the denial of a motion to suppress prior to pleading guilty or he waives the right to appeal" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917194 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "625" }, { "page": "625" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0623-01" ] }, { "cite": "267 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "297 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573254, 8573319, 8573365, 8573277, 8573341 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/297/0616-01", "/nc/297/0616-03", "/nc/297/0616-05", "/nc/297/0616-02", "/nc/297/0616-04" ] }, { "cite": "254 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "242" } ], "opinion_index": 1 }, { "cite": "41 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548266 ], "year": 1979, "pin_cites": [ { "page": "166" } ], "opinion_index": 1, "case_paths": [ "/nc-app/41/0164-01" ] }, { "cite": "420 U.S. 283", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11643349 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "289" }, { "page": "202" }, { "page": "396" } ], "opinion_index": 1, "case_paths": [ "/us/420/0283-01" ] }, { "cite": "64 L. Ed. 2d 795", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 1 }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278350, 6275343, 6278644, 6279286, 6278967, 6277367, 6276539, 6275996, 6278014 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-12", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "259 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "853" }, { "page": "853" }, { "page": "853" }, { "page": "853" }, { "page": "853" } ], "opinion_index": 1 }, { "cite": "298 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572489 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "397" }, { "page": "397" }, { "page": "397" }, { "page": "397" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0380-01" ] }, { "cite": "51 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "7" } ], "opinion_index": 1 }, { "cite": "229 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167262 ], "year": 1948, "opinion_index": 1, "case_paths": [ "/nc/229/0626-01" ] }, { "cite": "476 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 1 }, { "cite": "344 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867682 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/344/0623-01" ] }, { "cite": "463 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "405", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917194 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc-app/120/0623-01" ] } ], "analysis": { "cardinality": 604, "char_count": 12803, "ocr_confidence": 0.753, "pagerank": { "raw": 2.443395833102851e-07, "percentile": 0.8033105404986932 }, "sha256": "268b854fb5e54446fc6b47e38ac6391c656c76c0ff37ddfbbf8aaece3c6eeaed", "simhash": "1:99313166341e4a46", "word_count": 2151 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES concurs.", "Judge HUDSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM EARL BROWN" ], "opinions": [ { "text": "SMITH, Judge.\nOn 29 January 1999, defendant was arrested for possession of a controlled substance after a search of his person and automobile revealed crack cocaine and a crack cocaine pipe. Defendant was indicted on 17 May 1999 for possession of a Schedule II controlled substance and being an habitual felon. On 1 July 1999, defendant moved to suppress evidence obtained as a result of the search. The motion was denied on 20 July 1999. On the same day, defendant pled guilty pursuant to a plea agreement to possession of cocaine and to being an habitual felon and was sentenced to a term of seventy to ninety-three months\u2019 imprisonment. Defendant appeals.\nDefendant\u2019s appeal concerns the constitutionality of the search without a warrant by the Goldsboro Police Department on 29 January 1999. Defendant contends that the search of his person was without probable cause, and that evidence found during the subsequent search of his vehicle should have been suppressed because it was \u201cfruit of the poisonous tree.\u201d However, we do not reach the merits, because defendant failed to present a record on appeal from which we can determine that he complied with established case and statutory law, which mandates that notice of intent to appeal be given to the trial court and prosecution prior to entry of a guilty plea following denial of a motion to suppress.\nN.C. Gen. Stat. \u00a7 15A-979(b) (1999) states that \u201c[a]n 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.\u201d However, \u201c[t]his statutory right to appeal is conditional, not absolute.\u201d State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), disc. review allowed in part, 343 N.C. 126, 468 S.E.2d 790, aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996). Pursuant to N.C. Gen. Stat. \u00a7 15A-979(b), \u201ca 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.\u201d McBride, 120 N.C. App. at 625, 463 S.E.2d at 404.\nHere, we have carefully reviewed the entire record, including the transcript, and note the absence of any notice whatsoever by defendant of his intent to appeal based on the trial court\u2019s denial of his motion to suppress. In his brief, defendant claims to have reserved this right. However, the page in the record referred to by defendant as evidence of his intent to appeal cites only the second page of the judgment, and does not constitute sufficient notice of his intent. We note that the State\u2019s brief asserts that defendant reserved his right to appeal. However, the State cites the Transcript of Plea as reference, and there is nothing in the Transcript of Plea to indicate that defendant was pleading guilty, but reserving his right to appeal.\n\u201cThis Court... is bound by the record as certified and can judicially know only what appears of record.\u201d State v. Williams, 280 N.C. 132, 137, 184 S.E.2d 875, 878 (1971); and State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). \u201cIt is the appellant\u2019s duty and responsibility to see that the record is in proper form and complete.\u201d State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644-45 (1983); see also State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 29 L. Ed. 2d 859 (1971). Here, from the record presented, we cannot determine that defendant has complied with the rules concerning appeals made subsequent to a plea bargain.\nIn her dissent, Judge Hudson contends that, because the State approved the proposed record on appeal, and the \u201cOrganization of Trial Tribunal\u201d in the record contained a statement that defendant pled guilty but reserved his right to appeal the denial of his motion to suppress, then the statement became part of the record, and defendant did preserve his right of appeal. However, counsel cannot correct the record proper by stipulation. Mason v. Commissioners of Moore, 229 N.C. 626, 628, 51 S.E.2d 6, 8 (1948). Thus, it is not enough that counsel states or stipulates that appellant reserved the right to appeal. That portion of the record on appeal reflecting the proceedings in the trial court must show that appellant has the statutory right to appeal. McBride, 120 N.C. App. at 625, 463 S.E.2d at 404 (defendant must notify the State and the trial court of his intent to appeal the denial of a motion to suppress prior to pleading guilty or he waives the right to appeal); N.C. Gen. Stat. \u00a7 15A-979(b). Furthermore, we note that the \u201cOrganization of Trial Tribunal\u201d is merely a statement in the record for informational purposes and is not binding on the parties. See Drafting Committee Note, North Carolina Rules of Appellate Procedure, 287 N.C. 671, 696 (1975) (\u201cThe office of this item is simply to permit routine confirmation by the appellate court of the subject matter jurisdiction or \u201ccompetence\u201d of the particular trial judge and tribunal....\u201d).\nAccordingly, the appeal is dismissed without prejudice to defendant\u2019s right to seek an evidentiary hearing in superior court determining whether or not the guilty plea was entered reserving defendant\u2019s right to appeal the denial of his motion to suppress. If it is determined that defendant pled guilty while properly reserving his right to appeal, review may then be sought by petition for writ of certiorari filed with this Court.\nDismissed.\nChief Judge EAGLES concurs.\nJudge HUDSON dissents.", "type": "majority", "author": "SMITH, Judge." }, { "text": "HUDSON, Judge\ndissenting.\nIt is clear that \u201cwhen a defendant intends to appeal from a suppression motion denial pursuant to [N.C.G.S. \u00a7 15A-979(b) (1999)], he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized,\u201d otherwise he waives the provisions of the statute providing an appeal of right. 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). In the instant case, the \u201cOrganization of Trial Tribunal\u201d appearing in the record states, in pertinent part: \u201cThe Defendant then plead guilty to the charge of Possession of a Controlled Substance and admitted to Habitual Felon Status, reserving his right to appeal the Court\u2019s denial of Defendant\u2019s motion to suppress pursuant to [G.S. \u00a7 15A-979(b)].\u201d Defendant gave notice of appeal, which is also included in the record on appeal, and the same trial judge who accepted the plea appointed counsel to perfect the appeal. As evidenced by the \u201cNotice of Approval of Defendant-Appellant\u2019s Proposed Record on Appeal,\u201d signed by an attorney for the State on 10 January 2000, and appearing in the record, the State expressly approved the record on appeal, including the statements appearing in the \u201cOrganization of Trial Tribunal.\u201d In addition, the State expressly concedes in its brief that defendant reserved his right to appeal. While I agree with the majority that these two factors may not establish as a matter of fact that defendant did reserve his right to appeal before the plea negotiations were finalized, as clearly as if it were written on the plea form, I believe these two factors are sufficient to satisfy the policy underlying the rule set forth in Reynolds.\nThe holding in Reynolds was based on the following reasoning:\n\u201cOnce the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained.\u201d\nReynolds, 298 N.C. at 397, 259 S.E.2d at 853 (quoting Lefkowitz v. Newsome, 420 U.S. 283, 289, 43 L. Ed. 2d 196, 202 (1975)). The Court further opined that in adopting G.S. \u00a7 15A-979(b), the legislature could not have intended to allow a defendant to contest a plea bargain in a situation in which the State gets \u201ctrapped\u201d into agreeing to a plea bargain without any knowledge that the defendant intends to appeal the denial of his suppression motion. Id. The Court emphasized that what was lacking was a \u201cclear understanding and expectation\u201d on the part of the State and the Court at the time of the sentencing proceeding that the defendant intended to appeal the denial of his motion to suppress. Id. at 396, 259 S.E.2d at 853.\nFurthermore, the majority cites to Mason v. Commissioners of Moore, 229 N.C. 626, 51 S.E.2d 6 (1948), for the proposition that the alleged omission at issue cannot be corrected by counsel by stipulation. However, Mason clearly raised an entirely different question than that posed by the instant case, in that it involved the jurisdictional effect of a failure to include Notice of Appeal in the record. In Mason, the record did not show that plaintiffs had excepted to the judgment entered, or had appealed therefrom, or had given any notice of appeal. The Court explained that without such entries, \u201cthis Court has no jurisdiction and is without authority to consider the questions attempted to be presented.\u201d Id. at 628, 51 S.E.2d at 7. For this reason, the purported appeal was dismissed. The instant case does not involve a failure to include in the record an entry showing that appeal has been taken, nor does the instant case involve a jurisdictional issue. Rather, the issue is whether defendant waived his appeal of right provided by G.S. \u00a7 15A-979(b) by failing to give notice, before plea negotiations were finalized, of his intention to appeal from the suppression motion denial. See Reynolds, 298 N.C. at 397, 259 S.E.2d at 853. In State v. McBride, 120 N.C. App. 623, 463 S.E.2d 403 (1995), aff\u2019d, 344 N.C. 623, 476 S.E.2d 106 (1996), this Court discussed the distinction between Notice of Appeal and notice of intent to appeal:\nA Notice of Appeal is distinct from giving notice of intent to appeal. Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a \u201cfair posture for appeal from a guilty plea.\u201d Notice of Appeal is a procedural appellate rule, required in order to give \u201cthis Court jurisdiction to hear and decide a case.\u201d\nId. at 625, 463 S.E.2d at 405 (citations omitted). The underlying issue, therefore, is.whether this case comes before us upon a \u201cfair posture for appeal,\u201d and this issue involves consideration of whether the State had a \u201clegitimate expectation of finality in the conviction\u201d that was based upon defendant\u2019s guilty plea. See Reynolds, 298 N.C. at 397, 259 S.E.2d at 853. I do not believe an appeal can be said to involve an unfair posture where the State has consented to the record containing a statement in the \u201cOrganization of Trial Tribunal\u201d that defendant has reserved his right to appeal, and where the State in its own brief concedes that defendant reserved his right to appeal.\nFinally, I believe considering defendant\u2019s appeal on the merits at this time would \u201cprevent further expenditure of this Court\u2019s time and other expenses by the State.\u201d State v. Morris, 41 N.C. App. 164, 166, 254 S.E.2d 241, 242, cert. denied, 297 N.C. 616, 267 S.E.2d 657 (1979). As a practical matter, given that the State does not contest that defendant reserved his right to appeal before plea negotiations were finalized, all that will be achieved by dismissing this appeal and allowing defendant to seek an evidentiary hearing on the issue is an unnecessary delay in addressing the merits of defendant\u2019s appeal, and additional expenditures by the State.\nFor the reasons set forth herein, I respectfully dissent.", "type": "dissent", "author": "HUDSON, Judge" } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General William P. Hart and Agency Legal Specialist Gregory B. Rodgers, for the State.", "Kevin F. MacQueenfor defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM EARL BROWN\nNo. COA00-133\n(Filed 20 March 2001)\nAppeal and Error\u2014 preservation of issues \u2014 failure to give notice of intent to appeal based on denial of motion to suppress\nAlthough defendant contends the search of his person was without probable cause and that the evidence found during the subsequent search of his vehicle should have been suppressed since it was \u201cfruit of the poisonous tree,\u201d this appeal is dismissed because: (1) defendant failed to present a record on appeal from which it can be determined that he complied with established case and statutory law concerning appeals made subsequent to a plea bargain which mandates that notice of intent to appeal be given to the trial court and prosecutor prior to entry of a guilty plea following denial of a motion to suppress, N.C.G.S. \u00a7 15A-979(b); and (2) counsel cannot correct the record by stipulating that appellant reserved the right to appeal.\nJudge Hudson dissenting.\nAppeal by defendant from order entered 20 July 1999 by Judge Arnold O. Jones in Wayne County Superior Court. Heard in the Court of Appeals 22 January 2001.\nAttorney General Michael F. Easley, by Special Deputy Attorney General William P. Hart and Agency Legal Specialist Gregory B. Rodgers, for the State.\nKevin F. MacQueenfor defendant appellant." }, "file_name": "0491-01", "first_page_order": 521, "last_page_order": 526 }