State v. Ledbetter
| Decision Date | 03 November 2015 |
| Docket Number | No. COA15–414.,COA15–414. |
| Citation | 243 N.C.App. 746,779 S.E.2d 164 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Donna Helms LEDBETTER. |
243 N.C.App. 746
779 S.E.2d 164
STATE of North Carolina
v.
Donna Helms LEDBETTER.
No. COA15–414.
Court of Appeals of North Carolina.
Nov. 3, 2015.
Attorney General, Roy Cooper, by Assistant Attorney General, Ashleigh P. Dunston, for the State.
Meghan A. Jones, for defendant-appellant.
TYSON, Judge.
Donna Helms Ledbetter ("Defendant") appeals from judgment entered after she pleaded guilty to driving while impaired. Defendant does not have a statutory right to appeal the issue she raised. Rule 21 of the North Carolina Rules of Appellate Procedure does not set forth the grounds Defendant asserts to issue the requested writ. We decline to suspend the Rules of Appellate Procedure to exercise our jurisdiction under N.C. Gen.Stat. § 1444(e) to issue the writ. We deny Defendant's petition for writ of certiorari and dismiss the appeal.
I. Background
Around 7:30 p.m. on 1 January 2013, Rowan County Sheriff's Deputy Daniel Myers ("Deputy Myers") was called to the Enochville Food Center in Kannapolis, North Carolina. Upon arrival, Deputy Myers observed Defendant seated behind the wheel of the car, "slumped over," and apparently unconscious. The keys were in the ignition. Deputy Myers knocked on the window and instructed Defendant to exit the vehicle. Deputy Myers never observed Defendant drive the vehicle.
Deputy Myers conducted three separate field sobriety tests on Defendant: (1) the Horizontal Gaze Nystagmus test (HGN test); (2) the one-leg stand test; and (3) the walk-and-turn test. During the HGN test, Deputy Myers had to remind Defendant to keep her head still several times. The HGN test revealed five out of six indicators for impairment. During the one-leg stand test, Deputy Myers had to twice tell Defendant to not start before being told to do so, and to keep her hands by her side.
During the walk-and-turn test, Defendant lost her balance a couple of times, used her arms to balance repeatedly, and missed the heel-to-toe twice. Defendant made a 560–degree turn, rather than a 360–degree turn, and proceeded to walk backwards towards Deputy Myers. Deputy Myers administered an Alco–Sensor portable breath test to Defendant, which registered a negative reading for alcohol.
Defendant admitted she had taken Xanax and Oxymorphone about an hour prior to her encounter with Deputy Myers. Based upon his interactions with Defendant, Deputy Myers concluded Defendant was appreciably impaired and placed her under arrest for driving while impaired.
Defendant was transported to the Rowan Regional Medical Center for a blood test. Following the blood test, Defendant was transported to the Rowan County Magistrate's Office, where she appeared before Magistrate Todd Wyrick ("Magistrate Wyrick"). After speaking with Deputy Myers, Magistrate Wyrick found probable cause to believe Defendant was a danger to herself or others.
The detention order contains a findings of fact section, where the magistrate enters why Defendant posed a danger to herself or others. Magistrate Wyrick simply typed "BLOOD TEST" in this section. Magistrate Wyrick found probable cause to detain Defendant as an impaired driver.
The detention order required Defendant remain in custody for a 12–hour period or until released into the custody of a sober adult. Magistrate Wyrick failed to instruct Defendant to fill out an "implied consent offense notice" form ("Form AOC–271"), which advises a defendant of her right to have "other persons appear at the jail to observe [her] condition."
After her appearance before Magistrate Wyrick, Defendant was transported to the Rowan County Jail. Defendant used a phone at the jail to call several friends and acquaintances and asked them to come to the jail to allow her to be released into their custody. Defendant was released into the custody of Kenneth Paxton at 12:24 a.m. on 2 January 2013.
Defendant filed a motion to dismiss the charges on 23 December 2013. She argued the State violated N.C. Gen.Stat. § 20–38.4 and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), when Magistrate Wyrick: (1) failed to provide sufficient findings of fact to show Defendant was a danger to herself and others; and (2) failed to provide Defendant a copy of Form AOC–271 advising of her right to have witnesses observe her demeanor at the jail. The trial court denied Defendant's motion on 20 October 2014.
Following the court's denial of her motion, Defendant entered a plea of guilty. The plea arrangement states "[Defendant] expressly retains the right to appeal the Court's denial of her motion to dismiss/suppress her Driving While Impaired charge in this case and her plea of guilty is conditioned based on her right to appeal that decision[.]" Defendant appeals.
II. Issue
Defendant asserts the trial court erred in denying her motion to dismiss. She argues a substantial violation occurred during the crucial period in which she could have gathered witnesses on her behalf and she was deprived of her statutory and constitutional rights of access to witnesses.
III. Right to Appeal
The State filed a motion to dismiss Defendant's appeal. It argues Defendant has no statutory right to appeal the trial court's denial of her motion to dismiss when a plea of guilty has been entered. We agree.
A defendant's right to appeal in a criminal proceeding in North Carolina "is purely a creation of state statute." State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869, disc. rev. denied, 356 N.C. 442, 573 S.E.2d 163 (2002) (citations omitted); N.C. Gen.Stat. § 15A–1444 (2013). Absent express statutory authority, a criminal defendant does not have a state right to appeal from a judgment entered upon her conviction under N.C. Gen.Stat. § 15A–1444. Id.; see also State v. Ahearn, 307 N.C. 584, 605, 300 S.E.2d 689, 702 (1983) (quoting N.C. Gen.Stat. § 15A–1444(e) ) (noting that except as provided in N.C. Gen.Stat. §§ 15A–1444 and 15A–979, a defendant has no right of appeal from the entry of a guilty plea). No federal constitutional right obligates state courts to hear appeals in criminal proceedings. E.g., Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038–39, 52 L.Ed.2d 651, 657 (1977).
A. N.C. Gen.Stat. §§ 15A–1444 and 15A–979(b)
The circumstances under which a defendant may appeal a guilty plea and conviction are found in N.C. Gen.Stat. §§ 15A–1444 and 15A–979(b). A defendant who has pleaded guilty to a misdemeanor, as here, is entitled to appeal as a matter of right whether the sentence imposed:
(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A–1340.14 or the defendant's prior conviction level under G.S. 15A–1340.21 ;
(2) Contains a type of sentence disposition that is not authorized by G.S. 15A–1340.17 or G.S. 15A–1340.23 for the defendant's class of offense and prior record or conviction level; or
(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A–1340.17 or G.S. 15A–1340.23 for
the defendant's class of offense and prior record or conviction level.
N.C. Gen.Stat. § 15A–1444(a2) (2013).
Defendant attempts to appeal as a matter of right from an order denying her motion to dismiss prior to her guilty plea. This issue is not listed as one of the grounds for appeal of right set forth in N.C. Gen.Stat. § 15A–1444. Defendant contends that an appeal of right is proper pursuant to N.C. Gen.Stat. § 15A–979(b), which provides:
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.
N.C. Gen.Stat. § 15A–979(b) (2013) (emphasis supplied). We disagree.
In this case, Defendant filed a "MOTION TO DISMISS DWI CHARGE." In her motion to dismiss, Defendant stated "pursuant to N.C. Gen.Stat. § 15A–954, [Defendant] moves the Court for an Order dismissing" the charge of DWI.
While the trial court's order denying Defendant's motion was styled "order on motion to suppress Defendant's DWI Charge," and Defendant's transcript of plea purported to reserve a right to appeal the Court's denial of her "motion to dismiss/suppress," a review of the record and the transcripts of Defendant's motion hearing and plea hearing reveals the only motion filed by Defendant was the motion to dismiss. Defendant's motion specifically cited N.C. Gen.Stat. § 15A–954, North Carolina's motion to dismiss statute. Defendant did not file a motion to suppress and has no right of appeal after denial of her motion to dismiss and entering a plea of guilty. N.C. Gen.Stat. §§ 15A–1444 and 15A–979(b).
The facts of this case are substantially similar to the circumstances presented in State v. Rinehart, 195 N.C.App. 774, 673 S.E.2d 769 (2009). In Rinehart, the...
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