State v. Killette, 110519 NCCA, COA18-26-2

Docket Nº:COA18-26-2
Opinion Judge:TYSON, Judge.
Party Name:STATE OF NORTH CAROLINA v. VAN BUREN KILLETTE, SR.
Attorney: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.
Judge Panel:Judge BERGER concurs. Inman, Judge, concurring.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

VAN BUREN KILLETTE, SR.

No. COA18-26-2

Court of Appeals of North Carolina

November 5, 2019

Appeal 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 reconsideration.

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.

TYSON, Judge.

I. Factual Background

The 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 State v. Killette, __ N.C. __, 818 S.E.2d 646, 2018 WL 4701970 (2018) (unpublished).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.

Defense 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.

On 6 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.

Defendant's 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 Court.

II. Intent to Appeal Denial of Motion to Suppress Evidence

A. Direct Appeal

Defendant's 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.

The 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 supplied).

This Court has repeatedly held that when a...

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