State v. Pimental

• Decision Date: 17 September 2002
• Docket Number: No. COA01-1086.,COA01-1086.
• Citation: 153 NC App. 69,568 S.E.2d 867
• Parties: STATE of North Carolina v. Jon Eric PIMENTAL.
• Court: North Carolina Court of Appeals

568 S.E.2d 867

153 NC App. 69

STATE of North Carolina v. Jon Eric PIMENTAL.

No. COA01-1086.

Court of Appeals of North Carolina.

September 17, 2002.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General H. Alan Pell, for the State.

McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III, and Robert J. McAfee, New Bern, for defendant-appellant.

CAMPBELL, Judge.

Jon Eric Pimental ("defendant") purports to appeal from judgments entered 7 November 2000 consistent with his Alford plea of guilty to second degree murder and first degree burglary. In the alternative, defendant petitions this Court for writ of certiorari.

Defendant was indicted for first degree murder and first degree burglary. Defendant was tried capitally. Following the presentation of evidence by the State and defendant, the jury was instructed that it could find defendant guilty of first degree murder, guilty of second degree murder or not guilty on the murder charge, and guilty or not guilty of first degree burglary. On the murder charge, the jury was instructed that it could find defendant guilty of first degree murder on the basis of premeditation and deliberation or the felony murder rule—with the underlying felony being burglary.

Following deliberation, the jury returned verdict forms finding defendant guilty of first degree burglary and second degree murder. Upon review of the jury's verdict forms, the trial court sent the jury back to the jury room and informed counsel of its concern that the jury had returned an inconsistent verdict. The trial court then asked counsel to present argument concerning the trial court's responsibility to accept an inconsistent verdict. Following a weekend recess and further argument from both sides, the trial court denied defendant's motion that the trial court accept the jury's verdict and denied defendant's oral motion for a mistrial. The trial court then informed the jury that it had returned an inconsistent verdict and instructed the jury to resume deliberation. The trial court also informed the jury that it would accept the jury's verdict if, upon further deliberation, the jury once again returned a verdict of guilty of second degree murder and first degree burglary. While the jury was still in deliberation, defendant entered an Alford plea of guilty to second degree murder and first degree burglary. The trial court accepted defendant's plea, entered judgment consistent therewith, and sentenced him to consecutive prison terms in the aggravated range of 129 to 164 months for first degree burglary and 276 to 341 months for second degree murder. In sentencing defendant in the aggravated range for second degree murder, the trial court found as a non-statutory aggravating factor that the offense was committed with malice, premeditation and deliberation. Defendant gave timely notice of appeal.

In his brief to this Court, defendant contends that the trial court erred in (1) denying defendant's motions for a continuance, (2) denying defendant's motion to dismiss the short-form murder indictment and limit the prosecution to second degree murder, (3) denying defendant's motion to suppress statements made by him to law enforcement on 24 January 2000, (4) denying defendant's motion to suppress evidence obtained without a search warrant, (5) allowing the State to introduce into evidence prejudicial photographs of defendant, (6) denying defendant's motion to dismiss the charges on the ground of insufficient evidence of specific intent, (7) allowing defense counsel to argue to the jury that defendant was at most guilty of second degree murder, (8) denying defendant's motion to accept the jury's verdict and motion for a mistrial, and (9) finding as a non-statutory aggravating factor that the murder was committed with malice, premeditation and deliberation.

The State filed a motion to dismiss defendant's appeal as to Argument Nos. 1-8 set out above, contending that defendant's right to appeal is precluded by operation of N.C. Gen.Stat. § 15A-1444 and defendant's guilty plea.¹ In response, defendant asserts that he was in fact found guilty by the jury, and that the trial court's refusal to accept the jury's verdict should not interfere with his right to appeal. In the alternative, defendant requests that this Court grant a writ of certiorari to review the merits of his appeal.

We first address whether this Court has the authority to review the trial court's judgments entered consistent with defendant's guilty plea.

In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute. See N.C. Gen.Stat. § 15A-1444 (2001); State v. McBride, 120 N.C.App. 623, 624, 463 S.E.2d 403, 404 (1995), aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996); State v. Shoff, 118 N.C.App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd, 342 N.C. 638, 466 S.E.2d 277 (1996). Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651, 657 (1977). N.C. Gen.Stat. § 15A-1444 provides, in pertinent part:

(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of 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.

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(e) Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for a writ of certiorari....

N.C.G.S. § 15A-1444 (emphasis added). Pursuant to N.C. Gen.Stat. § 15A-979(b) (2001), "[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."

Accordingly, under N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea. See N.C.G.S. § 15A-1444(e); State v. Dickson, ___ N.C.App. ____, 564 S.E.2d 640 (2002). Applying N.C.G.S. § 15A-1444(e) to the instant case, we conclude that defendant is not entitled to appellate review as a matter of right as to Argument Nos. 1, 2, 5, 6, 7 and 8, because those arguments do not involve sentencing issues or the denial of a motion to suppress, and defendant has not made a motion to withdraw his guilty plea.²

However, in Argument Nos. 3 and 4, defendant contends that the trial court erred in denying his motions to suppress. Accordingly, we examine the record on appeal to determine whether defendant complied with the established case and statutory law, which mandates that notice of intent to appeal the denial of a motion to suppress be specifically given to the trial court and prosecution prior to the entry of a guilty plea.

While N.C.G.S. § 15A-979(b) allows appellate review of the denial of a motion to suppress upon appeal from a judgment entered on a guilty plea, "[t]his statutory right to appeal is conditional, not absolute." McBride, 120 N.C.App. at 625, 463 S.E.2d at 404; accord State v. Brown, 142 N.C.App. 491, 492, 543 S.E.2d 192, 193 (2001)

. Pursuant to this statute, "a 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." McBride, 120 N.C.App. at 625,

463 S.E.2d at 404 citing State v. Reynolds, 298 N.C. 380, 396-97, 259 S.E.2d 843, 853 (1979). This Court has held that such "notice must be specifically given." Id. (emphasis in original).

The propriety of a rule nearly identical to ours was addressed by the United States Supreme Court in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). There the United States Supreme Court noted:

Once 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.

Lefkowitz, 420 U.S. at 289, 95 S.Ct. at 889, 43 L.Ed.2d at 202. Similarly, in State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), our Supreme Court supported the reasoning behind this limitation on the statutory right to appeal as follows:

The plea bargaining table does not encircle a high stakes poker game. It is the nearest thing to arm's length bargaining the criminal justice system confronts. As

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