State v. Kirkman

• Decision Date: 20 December 2016
• Docket Number: No. COA16-407,COA16-407
• Parties: STATE of North Carolina v. Kevin John KIRKMAN, Defendant.
• Court: North Carolina Court of Appeals

251 N.C.App. 274

795 S.E.2d 379

STATE of North Carolina

v.Kevin John KIRKMAN, Defendant.

No. COA16-407

Court of Appeals of North Carolina.

Filed: December 20, 2016

Attorney General Roy A. Cooper, III, by Assistant Attorney General Shawn R. Evans, for the State.

David Weiss, for defendant-appellant.

STROUD, Judge.

Defendant appeals order denying his motion to suppress and judgment for drug-related convictions. The trial court properly denied defendant's motion to suppress and had jurisdiction to correct defendant's sentence since defendant's defective notice of appeal did not divest the trial court of jurisdiction. But as the State concedes, the trial court erred by not giving defendant an opportunity to withdraw his plea upon resentencing him. As explained in more detail below, we therefore affirm the order denying the motion to suppress but reverse the judgment and remand.

I. Background

On or about 18 March 2013, defendant was indicted for maintaining a dwelling for keeping or selling marijuana and two counts of trafficking in marijuana. In March of 2014, defendant filed a motion to suppress "any and all evidence" seized from his home, alleging that the officers did not establish probable cause for the search warrant which authorized the search of his home. On 4 September 2015, the trial court denied defendant's motion to suppress and made the following findings of fact which are not contested on appeal:

1. On or about January 1, 2013, Officer C.S. Bradshaw of the Greensboro Police Department received information from a confidential source, that defendant was growing and selling marijuana.

2. In the application for the search warrant received in evidence as State's Exhibit 1, Officer Bradshaw, noting that the confidential informant was reliable, set out further specific information provided by the confidential informant, including the following: (a) that defendant was growing and selling marijuana from his residence ... (b) that there was a large grow operation in the home, and (c) that there were generators running the lights. Officer Bradshaw further stated that the confidential informant was familiar with the appearance of illegal narcotics and that all previous information from the confidential informant had proven to be truthful and accurate to the best of Officer Bradshaw's knowledge.

....

11. Officers Bradshaw, Trimnal and Armstrong then decided to perform a "knock and talk" procedure to make inquiry further at the residence.

12. Officer Bradshaw testified that he had substantial experience in investigating narcotics matters, had made numerous arrests specifically related to marijuana, and had received specific training as to narcotics and the indications of marijuana growing activity such as mold and condensation, resulting from humidity, on the windows of marijuana "grow houses."

....

14. As Officer Bradshaw approached the house on the walkway to the front door, Officer Bradshaw noticed, in plain view to the right of the doorway, windows on the front right of the home that had substantial mold and condensation, as seen in State's Exhibits 3 and 4. In Officer Bradshaw's training and experience, this was consistent with the heat and humidity associated with marijuana growing operations.

15. When Officer Bradshaw reached the front porch, he also heard, from the front porch, a loud sound consistent with an electrical generator running inside the home, which was also consistent with the information provided by the confidential informant.

....

19. When Officer Trimnal approached the left side door and knocked, he smelled the odor of marijuana, and Officer Bradshaw also came over to the left side door, and he also smelled the odor of marijuana plainly and from outside the left side door of the home.

....

21. Officers Bradshaw and Armstrong then sought the Warrant[.]

On 3 November 2015, defendant filed a written notice of appeal from the order denying his motion to suppress. On 10 November 2015, defendant pled guilty pursuant to an Alford plea to all of the charges against him, and the trial court entered judgment sentencing defendant to 25 to 30 months imprisonment. After receiving notification from the North Carolina Department of Public Safety that defendant's minimum and maximum terms of imprisonment as set forth in the judgment were incorrect, on 12 February 2016, the trial court entered another judgment sentencing defendant instead to 25 to 39 months imprisonment. In May of 2016, based upon his recognition of a defect in his notice of appeal, defendant filed a petition for writ of certiorari before this Court.

II. Petition for Writ of Certiorari

According to defendant's petition "he lost the right of appeal by failing to give proper notice of appeal, and on the further ground that in Issue III of his brief, he seeks to challenge the procedures employed in his plea hearing, for which there is no right of appeal." The trial court rendered its decision to deny defendant's motion to suppress, and thereafter defendant entered into a plea agreement. On the same day as defendant's sentencing hearing and before judgment was entered, defendant's attorney filed a notice of appeal from the order denying defendant's motion to suppress. Thereafter, defendant did not file a timely appeal from the order denying his motion to suppress, and in fact, even his oral notice to appeal given immediately after judgment was rendered appears to give notice of appeal only of the denial of his motion to suppress and not the actual judgment sentencing him.

A few months later, the trial court resentenced defendant to correct a prior error; this correction resulted in defendant's maximum sentence increasing by nine months although his minimum sentence remained the same. Defendant did not appeal the resentencing judgment but has since filed this petition for certiorari. The State "concede[s] that it was error for the trial court, at the new sentencing hearing[,] ... not to allow defendant an opportunity to withdraw his plea where the sentence was greater than what he agreed to in his plea agreement[,]" and thus it would be appropriate for this Court to consider defendant's appeal.

Pursuant to North Carolina Rule of Appellate Procedure 21, we allow defendant's petition for certiorari. See State v. Biddix , ––– N.C. App. ––––, ––––, 780 S.E.2d 863, 866 (2015) (" N.C. Gen. Stat. § 15A–1444(e) states a defendant who enters a guilty plea may seek appellate review by certiorari, Appellate Rule 21(a)(1) is entitled Certiorari, and provides the procedural basis to grant petitions for writ of certiorari under the following situations: (1) when the right to prosecute an appeal has been lost by failure to take timely action[.]" (citation and quotation marks omitted)). Furthermore, to the extent defendant's appeal invokes challenges to his guilty plea not normally appealable, we invoke Rule 2 of the Rules of Appellate Procedure in order "to prevent manifest injustice" as this is a rare situation where both parties concede the trial court erred in sentencing defendant. N.C.R. App. P. 2 ; see Biddix , ––– N.C. App. at ––––, 780 S.E.2d at 868 ("Under Appellate Rule 2, this Court has discretion to suspend the appellate rules either upon application of a party or upon its own initiative. Appellate Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances. This Court's discretionary exercise to invoke Appellate Rule 2 is intended to be limited to occasions in which a fundamental purpose of the appellate rules is at stake, which will necessarily be rare occasions." (citations and quotation marks omitted)). We thus turn to defendant's issues on appeal.

III. Motion to Suppress

Defendant first challenges the denial of his motion to suppress on two separate grounds: (1) the "knock and talk" was a mere "guise" which allowed officers to surround his home and far exceeded the scope of a proper "knock and talk" and (2) the search warrant was deficient because it was based on an unsubstantiated anonymous tip.

The standard of review for a trial court's order denying a motion to suppress is whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law. If a defendant does not challenge a particular finding of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. The trial court's conclusions of law, however, are fully reviewable on appeal.

State v. Medina , 205 N.C.App. 683, 685, 697 S.E.2d 401, 403 (2010) (citations and quotation marks omitted).

A. Knock and Talk

Defendant does not challenge any of the findings of fact regarding the knock and talk but only the conclusions of law determining the knock and talk was lawful. We first note that we will refer to the officers’ approach to defendant's home as a "knock and talk," since that is the term used by defendant and in cases, although we also note that there was no "talk" in this case since no one answered the door after the officers knocked. The only evidence from the knock and talk was from the officers’ observations from the exterior of the home of the conditions of the windows and hearing the sound of the generator. This was really a knock, look, and listen.

Yet defendant raises an interesting legal question not directly addressed by either party, since most knock and talk cases deal with warrantless searches. See, e.g. , State v. Smith , 346 N.C. 794, 800, 488 S.E.2d 210, 214 (1997) ("Knock and talk is a procedure utilized by law enforcement officers to obtain a consent to search when they lack the probable cause necessary to obtain a search warrant. That officers approach a residence with the intent to obtain consent to...