Opinion
No. COA10-1318
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgment entered 18 February 2010 by Judge John O. Craig, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathleen Mary Barry, for the State. Michael E. Casterline, for Defendant-appellant.
Mecklenburg County No. 09 CRS 205977.
Defendant Stanley Kelly, Jr., appeals from a judgment sentencing him to a minimum term of 35 months and a maximum term of 42 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for trafficking in cocaine by possessing between 28 and 200 grams of cocaine. On appeal, Defendant argues that Judge Nathaniel J. Poovey erred by denying his motion to suppress certain evidence seized at the time of Defendant's arrest. After careful consideration of Defendant's challenges to Judge Poovey's order in light of the record and the applicable law, we conclude that Defendant's appeal must be dismissed.
I. Factual Background A. Substantive Facts
At approximately 2:00 p.m. on 3 February 2009, Agent Rodney Blacknall of the Bureau of Alcohol, Tobacco, Firearms and Explosives, along with Detective John Fish and Sergeant Stevenson of the Charlotte-Mecklenburg Police Department, was waiting in a parking lot in Charlotte for the purpose of meeting with a confidential informant. On that occasion, Agent Blacknall, Sergeant Stevenson, and Detective Fish were seated in a large SUV which was backed into a parking space, with Fish sitting in the driver's seat, Sergeant Stevenson occupying the front passenger's side seat, and Agent Blacknall positioned in the rear passenger's side seat.
A Dodge Neon was also backed into an adjacent parking space which was located about ten feet from the officers' SUV. Defendant was seated in the driver's seat of this vehicle, while another man occupied the passenger seat. As a result of the fact that the SUV was taller than the Neon, Agent Blacknall had a clear view into the smaller vehicle.
At the time that Agent Blacknall looked into the Neon, he observed Defendant in possession of a clear plastic baggie that contained a substance resembling crack cocaine. Agent Blacknall watched for several minutes as Defendant and his passenger manipulated the contents of the baggie, sniffed it, and passed it back and forth. Agent Blacknall estimated that the baggie contained approximately one half ounce of cocaine, which he described as "bigger than a user amount." After Agent Blacknall told Detective Fish what he had observed, Detective Fish radioed other officers and requested that they come to the scene.
A few minutes later, Officers Jason Haithcock and R.B. Reece of the Charlotte-Mecklenburg Police Department arrived in a marked patrol vehicle. Officer Haithcock approached Defendant's car and asked him to step outside. As Defendant exited the Neon, Officer Haithcock observed that Defendant appeared to be nervous and that he was breathing very rapidly. After having Defendant turn around and face the Neon, Officer Haithcock frisked Defendant's outer clothing for weapons. In the course of conducting this frisk, Officer Haithcock felt a large bumpy bulge in Defendant's right jacket pocket. According to Officer Haithcock, the material in the bulge was covered in cellophane and was more bumpy than smooth, a set of circumstances that he knew to be consistent with the manner in which crack cocaine is generally packaged. As a result, Officer Haithcock placed Defendant under arrest, handcuffed him, reached into the pocket of Defendant's jacket, and removed two bags of what appeared to him to be crack cocaine. Subsequent testing established that the substance in the bags seized from Defendant's person consisted of 31.16 grams of cocaine.
B. Procedural History
On 3 February 2009, a warrant for arrest charging Defendant with trafficking in cocaine by possessing between 28 and 200 grams of cocaine was issued. On 16 February 2009, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with trafficking in cocaine by possessing between 28 and 200 grams of cocaine. On 24 July 2009, Defendant filed a motion seeking the entry of an order suppressing all evidence seized from Defendant at the time of his arrest. On 16 November 2009, Judge Poovey entered an order denying Defendant's suppression motion.
The charge against Defendant came on for trial before the trial court and a jury at the 16 February 2010 criminal session of the Mecklenburg County Superior Court. On 18 February 2010, the jury returned a verdict finding Defendant guilty of trafficking in cocaine by possession. At the ensuing sentencing hearing, the trial court, consistently with N.C. Gen. Stat. § 90-95(h)(3), sentenced Defendant to a minimum term of thirty-five months and a maximum term of forty-two months imprisonment in the custody of the North Carolina Department of Correction. After the entry of the trial court's judgment, Defendant's trial counsel stated that:
Your Honor, before you take him into custody, there was a pretrial motion that was denied in terms of the motion to suppress, so we will be respectfully entering notice of appeal on that, on that decision.
II. Legal Analysis
As a preliminary matter, we must address the issue of the extent to which we have jurisdiction over Defendant's challenge to Judge Poovey's order. "`Jurisdiction of the court over the subject matter of an action is the most critical aspect of the court's authority to act. Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question.'" Cunningham v. Selman, 201 N.C. App. 270, 281, 689 S.E.2d 517, 524 (2009) (quoting Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987)). "[A]n appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte." Xiong v. Marks, 193 N.C. App. 644, 652, 668 S.E.2d 594, 599 (2008).
Pursuant to N.C. Gen. Stat. § 15A-979(b), "[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." See also State v. Grogan, 40 N.C. App. 371, 375, 253 S.E.2d 20, 23 (1979) (stating that "orders finally denying a motion to suppress evidence [are] reviewable `upon an appeal from a judgment of conviction'"). As a result, the appropriate method in which to challenge the denial of a suppression motion is to properly note an appeal from the underlying judgment, not from the order denying the motion to suppress.
According to N.C. R. App. P. 4:
(a) Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]
Any failure on the part of the appealing party to comply with N.C.R. App. P. 4 deprives this Court of jurisdiction to consider that party's appeal:
[A] default precluding appellate review on the merits necessarily arises when the appealing party fails to complete all of the steps necessary to vest jurisdiction in the appellate court. It is axiomatic that courts of law must have their power properly invoked by an interested party[.] . . . The appellant's compliance with the jurisdictional rules governing the taking of an appeal is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case[.] . . . A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal. . . . Stated differently, a jurisdictional default brings a purported appeal to an end before it ever begins. Moreover, in the absence of jurisdiction, the appellate courts lack authority to consider whether the circumstances of a purported appeal justify application of [N.C.R. App. P.] 2.
Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657 S.E.2d 361, 364-65 (2008) (citing Moore v. Vanderburg, 90 N.C. 10, 10 (1884), Williams v. Williams, 188 N.C. 728, 730, 125 S.E. 482, 483 (1924), and State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005) (other citations omitted)).
After the trial court imposed sentence on Defendant, Defendant's counsel notified the trial court that "there was a pretrial motion that was denied in terms of the motion to suppress, so we will be respectfully entering notice of appeal on that, on that decision." However, although Defendant orally noted an appeal from the denial of his suppression motion, he never noted an appeal, either orally or in writing, from the judgment that the trial court entered in this case. As a result of Defendant's failure to comply with the requirements of N.C.R. App. P. 4, this Court lacks jurisdiction to entertain his appeal.
Admittedly, the record reflects that (1) the trial court checked the box marked "[t]he defendant gives notice of appeal from the judgment of the trial court to the appellate division" in the "Appeal Entries" section of the judgment entered in this case and (2) the trial court checked the box marked "defendant has given Notice of Appeal to the N.C. Court of Appeals" found on the AOC-CR-350 form titled "Appellate Entries." However, consistently with well-established North Carolina law, the "defendant did not preserve his right to appeal his convictions" where the "record on appeal include[d] appellate entries . . . but contained no written [or oral] notices of appeal as required by Rule 4 of the Rules of Appellate Procedure." State v. Blue, 115 N.C. App. 108, 113, 443 S.E.2d 748, 751 (1994); see also, e.g., In re Me.B., M.J., Mo.B., 181 N.C. App. 597, 600, 640 S.E.2d 407, 409 (2007) (holding that, although "the record includes appellate entries . . . which indicate through boilerplate that defendant gave notice of appeal," these "appellate entries are insufficient to preserve the right to appeal"). "[T]he fact that the record contains appellate entries or similar notations does not, without more, suffice to show that Defendant properly noted an appeal from the trial court's judgment to this Court. In this case, the notations on the judgment and the appellate entry forms found in the record are inconsistent with both the statements actually made by Defendant's trial counsel, which have been previously quoted, following the entry of judgment and with the statement contained in Defendant's brief before this Court to the effect that, after the imposition of judgment, "Defendant gave notice of appeal of the suppression order in open court." Simply put, "Defendant never asserts in his brief before this Court that he gave notice of appeal as required by N.C.R. App. P. 4. As a result, it does not appear from the record that Defendant properly gave notice of appeal from the trial court's judgment." State v. Hughes, ___ N.C. App. ___, ___, 707 S.E.2d 777, 778 (2011). "Thus, since the record does not establish that Defendant ever noted an appeal from the trial court's judgment to this Court in the manner required by N.C.R. App. P. 4, we lack jurisdiction to consider Defendant's appeal, which must, therefore, be dismissed." Hughes, ___ N.C. App at ___, 707 S.E.2d at 779.
APPEAL DISMISSED.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).