# State v. Brown

> Court of Appeals of North Carolina · March 20, 2001 · 142 N.C. App. 491

URL: https://www.frixlaw.com/law-library/cases/9584026

## Case

- **Full name:** State of North Carolina v. William Earl Brown
- **Court:** Court of Appeals of North Carolina
- **Decided:** March 20, 2001
- **Citations:** 142 N.C. App. 491; 543 S.E.2d 192; 2001 N.C. App. LEXIS 144
- **Precedential status:** Published
- **Opinion:** Dissent by Hudson
- **Judges:** Eagles, Hudson, Smith
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9584026

## How later opinions describe it (automated extraction)

- noting that it is the appellant’s duty to ensure that the record before this Court is complete

## Opinion text

*494 HUDSON, Judge
dissenting.
It is clear that “when a defendant intends to appeal from a suppression motion denial pursuant to [N.C.G.S. § 15A-979(b) (1999)], he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized,” otherwise he waives the provisions of the statute providing an appeal of right. State v. Reynolds, 298 N.C. 380, 397 , 259 S.E.2d 843, 853 (1979), cert. denied, 446 U.S. 941 , 64 L. Ed. 2d 795 (1980). In the instant case, the “Organization of Trial Tribunal” appearing in the record states, in pertinent part: “The Defendant then plead guilty to the charge of Possession of a Controlled Substance and admitted to Habitual Felon Status, reserving his right to appeal the Court’s denial of Defendant’s motion to suppress pursuant to [G.S. § 15A-979(b)].” Defendant gave notice of appeal, which is also included in the record on appeal, and the same trial judge who accepted the plea appointed counsel to perfect the appeal. As evidenced by the “Notice of Approval of Defendant-Appellant’s Proposed Record on Appeal,” signed by an attorney for the State on 10 January 2000, and appearing in the record, the State expressly approved the record on appeal, including the statements appearing in the “Organization of Trial Tribunal.” In addition, the State expressly concedes in its brief that defendant reserved his right to appeal. While I agree with the majority that these two factors may not establish as a matter of fact that defendant did reserve his right to appeal before the plea negotiations were finalized, as clearly as if it were written on the plea form, I believe these two factors are sufficient to satisfy the policy underlying the rule set forth in Reynolds .
The holding in Reynolds was based on the following reasoning:
“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.”
Reynolds, 298 N.C. at 397 , 259 S.E.2d at 853 (quoting Lefkowitz v. Newsome, 420 U.S. 283, 289 , 43 L. Ed. 2d 196, 202 (1975)). The Court further opined that in adopting G.S. § 15A-979(b), the legislature could not have intended to allow a defendant to contest a plea bargain in a situation in which the State gets “trapped” into agreeing to a plea bargain without any knowledge that the defendant intends to appeal the denial of his suppression motion. Id. The Court emphasized that what was lacking was a “clear understanding and expecta *495 tion” on the part of the State and the Court at the time of the sentencing proceeding that the defendant intended to appeal the denial of his motion to suppress. Id. at 396, 259 S.E.2d at 853 .
Furthermore, the majority cites to Mason v. Commissioners of Moore, 229 N.C. 626 , 51 S.E.2d 6 (1948), for the proposition that the alleged omission at issue cannot be corrected by counsel by stipulation. However, Mason clearly raised an entirely different question than that posed by the instant case, in that it involved the jurisdictional effect of a failure to include Notice of Appeal in the record. In Mason , the record did not show that plaintiffs had excepted to the judgment entered, or had appealed therefrom, or had given any notice of appeal. The Court explained that without such entries, “this Court has no jurisdiction and is without authority to consider the questions attempted to be presented.” Id. at 628 , 51 S.E.2d at 7 . For this reason, the purported appeal was dismissed. The instant case does not involve a failure to include in the record an entry showing that appeal has been taken, nor does the instant case involve a jurisdictional issue. Rather, the issue is whether defendant waived his appeal of right provided by G.S. § 15A-979(b) by failing to give notice, before plea negotiations were finalized, of his intention to appeal from the suppression motion denial. See Reynolds, 298 N.C. at 397 , 259 S.E.2d at 853 . In State v. McBride, 120 N.C. App. 623 , 463 S.E.2d 403 (1995), aff’d, 344 N.C. 623 , 476 S.E.2d 106 (1996), this Court discussed the distinction between Notice of Appeal and notice of intent to appeal:
A Notice of Appeal is distinct from giving notice of intent to appeal. Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a “fair posture for appeal from a guilty plea.” Notice of Appeal is a procedural appellate rule, required in order to give “this Court jurisdiction to hear and decide a case.”
Id. at 625, 463 S.E.2d at 405 (citations omitted). The underlying issue, therefore, is.whether this case comes before us upon a “fair posture for appeal,” and this issue involves consideration of whether the State had a “legitimate expectation of finality in the conviction” that was based upon defendant’s guilty plea. See Reynolds, 298 N.C. at 397 , 259 S.E.2d at 853 . I do not believe an appeal can be said to involve an unfair posture where the State has consented to the record containing a statement in the “Organization of Trial Tribunal” that defendant has reserved his right to appeal, and where the State in its own brief concedes that defendant reserved his right to appeal.
*496 Finally, I believe considering defendant’s appeal on the merits at this time would “prevent further expenditure of this Court’s time and other expenses by the State.” State v. Morris, 41 N.C. App. 164, 166 , 254 S.E.2d 241, 242 , cert. denied, 297 N.C. 616 , 267 S.E.2d 657 (1979). As a practical matter, given that the State does not contest that defendant reserved his right to appeal before plea negotiations were finalized, all that will be achieved by dismissing this appeal and allowing defendant to seek an evidentiary hearing on the issue is an unnecessary delay in addressing the merits of defendant’s appeal, and additional expenditures by the State.
For the reasons set forth herein, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9584026. Public record. Not legal advice.