State v. Franklin

• Decision Date: 18 December 2012
• Docket Number: No. COA12–412.,COA12–412.
• Citation: 736 S.E.2d 218
• Parties: STATE of North Carolina v. Malik Shaheem FRANKLIN, Defendant.
• Court: North Carolina Court of Appeals

736 S.E.2d 218

STATE of North Carolina

v.Malik Shaheem FRANKLIN, Defendant.

No. COA12–412.

Court of Appeals of North Carolina.

Dec. 18, 2012.

Appeal by defendant from judgment entered on or about 8 November 2011 by Judge Hugh B. Lewis in Superior Court, Mecklenburg County. Heard in the Court of Appeals 10 October 2012.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Joseph L. Hyde, for the State.

Michele Goldman, for defendant-appellant.

STROUD, Judge.

After his motion to suppress was denied, defendant pled guilty to various drug-related charges. Defendant appeals, and for the following reasons, we affirm.

I. Background

On 28 February 2011, defendant was indicted for trafficking in drugs, possession with intent to sell or deliver a controlled substance, and conspiracy to traffic in drugs. On 8 July 2011, defendant filed a motion “to suppress any and all physical evidence seized from” him “and to suppress any statements or other evidence which was obtained[.]” On 7 November 2011, the trial court held a hearing regarding defendant's motion to suppress and orally denied the motion. On or about 8 November 2011, defendant pled guilty to all of the charges against him, and the trial court sentenced him on all of his convictions to 35 to 42 months imprisonment; at this hearing, defendant's attorney stated defendant was “appealing his denial of his motion to suppress.” On 21 November 2011, the trial court filed a written order denying defendant's motion to suppress. As to defendant's appeal, defendant only appealed at the hearing regarding his guilty plea from the oral ruling regarding his motion to suppress; defendant never filed any written notices of appeal nor did he appeal in any manner from either the judgment upon which his convictions were entered or the written order regarding his motion to suppress.

II. Notice of Appeal

All of defendant's issues on appeal are concerning his motion to suppress, but since defendant did not file a notice of appeal from the judgment or after entry of the written order denying his motion to suppress, we must first address whether we have jurisdiction to consider defendant's appeal. In Miller, this Court stated,

N.C. Gen.Stat. § 15A–979(b) (2009) states that: An 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. Defendant has failed to appeal from the judgment of conviction and our Court does not have jurisdiction to consider Defendant's appeal. In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of state statute. Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a fair posture for appeal from a guilty plea. Notice of Appeal is a procedural appellate rule, required in order to give this Court jurisdiction to hear and decide a case. Although Defendant preserved his right to appeal by filing his written notice of intent to appeal from the denial of his motion to suppress, he failed to appeal from his final judgment, as required by N.C.G.S. § 15A–979(b).

205 N.C.App. 724, 725, 696 S.E.2d 542, 542–43 (2010) (citations and quotation marks omitted). Accordingly, the Court dismissed defendant's appeal. See id. at 726, 696 S.E.2d at 543. Here, however, while defendant has not properly provided notice of appeal, he has petitioned this Court for a writ of certiorari to consider his appeal.

North Carolina Rule of Appellate Procedure 21(a) provides,

The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. § 15A–1422(c)(3) of an order of the trial court denying a motion for appropriate relief.

N.C.R.App. P. 21(a). Pursuant to Rule 21(a), we grant defendant's petition for a writ of certiorari and will consider the issues presented in his brief as he lost his right to appeal “by failure to take timely action [.]” Id.

III. Jurisdiction of Trial Court to Enter Order

Defendants first argument that “the trial court lacked jurisdiction to enter its written order denying ... [his] motion to suppress where the written order differed materially from the court's oral ruling and where it was entered after ... [defendant] had given notice of appeal” raises two issues. (Original in all caps.) “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” State v. Herman, –––N.C.App. ––––, ––––, 726 S.E.2d 863, 866 (2012).

Defendant's first issue is whether “the trial court lacked jurisdiction to enter its written order” because “the written order differed materially from the court's oral ruling[.]” The trial court stated that “[t]he State will be responsible for preparing the order in this matter[,]” and then orally found, concluded, and ruled,

Detective Lackey of CMPD had a particular storefront noted as 3318 Tuckaseegee Road under surveillance. Two individuals left that storefront and got into an automobile and got onto the highway.

After being on the highway and in movement on that highway, then at that time they put on their seat belts. The Court notes that having viewed the car the defendantand the other occupant were in, the defendant being the passenger and the other occupant being the driver, the rear window of that car was clear and unobstructed, so the officer could see movement—Detective Lackey could see movement in that car and was able to see whether or not they had their seat belts on. That is both a finding of fact and a conclusion of law.

Detective Lackey contacted an Officer Frisk and asked him to conduct a traffic stop relating to the seat belt violation.

When Officer Frisk initiated the stop, both occupants raised their hands in a manner that was, in Officer Frisk's opinion, one that would indicate there was some form of weapon in the automobile, something that he has noted from his nine-and-a-half years of experience. It often happens that someone has a weapon in the car.

Also, backing Officer Frisk up were officers Cooper and Land. The officers conducted a record check, and during conversation with the occupants found that one or both had—the defendant had been and possibly the driver as well—had been involved in weapons charges out of Burke County.

There is dispute over whether or not consent was given. The driver testified here today and said that he did not give consent, however, the Court has viewed tapes from the first patrol car in full length believes that consent was provided to the officers to quote, frisk, unquote, the car, that being looking for weapons.

This was—conclusion of law. This was justifiable based on the raising of the hand hands, the officers experienced previous criminal records involving gun charges—that limited frisk of the car looking for weapons. It was justified for public and officer's safety at that point in time.

As Officer Cooper frisked the car, he moved a can of hairspray that was laying in the gap between the seat—first off, Officer Frisk was conducting a search of all areas that are known as, quote, lunge areas, end quote. That was the limit of the search. What that means—this is, again, a mixed finding of fact and conclusion of law.

He was looking in areas that either occupant would have access to immediately for retrieving a weapon, which would include gap or valley between a seat and a center console.

In that gap or valley between the seat and center console, Officer Cooper moved a can of hairspray, which, during the movement, something rattled inside that can which is not consistent with a can of hairspray.

Utilizing his experience, he believed there to be a container of concealment that might hold a weapon, since he had seen weapons that were small enough to fit inside that can of hairspray. Part of the hairspray can was able to be removed, and inside that he found a quantity of cocaine.

Therefore, the Court concludes that the stop was valid, the search was valid, and the motion to suppress is denied.

The written order denying defendant's motion to suppress was filed on 21 November 2011 and stated as follows, in pertinent part:

1. That on February 16, of 2011, Detective Lackey with Charlotte Mecklenburg Police Department (hereinafter referred to as “CMPD”) had a particular storefront under surveillance at 3318 Tuckaseegee Road in Charlotte, NC.

2. That on this date, Detective Lackey was conducting surveillance on this location from across the street.

3. That Detective Lackey observed the defendant leave this same storefront and get into the passenger seat of a vehicle. The driver's seat of this vehicle was occupied by another individual, Olando Norman.

4. That the vehicle Defendant was a passenger in turned onto the highway and Detective Lackey followed the vehicle.

5. That based on the Court's observations of the video, the rear window of the vehicle was clear and unobstructed allowing Detective Lackey to see movement in the vehicle.

6. That the vehicle was in motion on a public street or highway prior to Detective Lackey observing either the driver or the passenger put on their seatbelts.

7. That Detective Lackey contacted CMPD Officer Frisk to make a traffic stop of the vehicle for the seatbelt violation.

8. That Officer Frisk initiated a traffic stop of the vehicle.

9. That upon initiating the traffic stop, both occupants in the car, including the defendant, raised their hands in a manner that indicated that they had a gun in the car.

10. That Officer Frisk's opinion was based on nine and a half years of experience as a law enforcement officer.

11. That CMPD Officers Cooper and Land responded in their patrol car as a back-up...