State v. Brown , 142 N.C. App. 491 ( 2001 )

SMITH, Judge.

On 29 January 1999, defendant was arrested for possession of a controlled substance after a search of his person and automobile revealed crack cocaine and a crack cocaine pipe. Defendant was indicted on 17 May 1999 for possession of a Schedule II controlled substance and being an habitual felon. On 1 July 1999, defendant moved to suppress evidence obtained as a result of the search. The motion was denied on 20 July 1999. On the same day, defendant pled guilty pursuant to a plea agreement to possession of cocaine and to being an habitual felon and was sentenced to a term of seventy to ninety-three months’ imprisonment. Defendant appeals.

Defendant’s appeal concerns the constitutionality of the search without a warrant by the Goldsboro Police Department on 29 January 1999. Defendant contends that the search of his person was without probable cause, and that evidence found during the subsequent search of his vehicle should have been suppressed because it was “fruit of the poisonous tree.” However, we do not reach the merits, because defendant failed to present a record on appeal from which we can determine that he complied with established case and statutory law, which mandates that notice of intent to appeal be given to the trial court and prosecution prior to entry of a guilty plea following denial of a motion to suppress.

N.C. Gen. Stat. § 15A-979(b) (1999) states that “[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.” However, “[t]his statutory right to appeal is conditional, not absolute.” State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), disc. review allowed in part, 343 N.C. 126, 468 S.E.2d 790, aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996). Pursuant to N.C. Gen. Stat. § 15A-979(b), “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.

Here, we have carefully reviewed the entire record, including the transcript, and note the absence of any notice whatsoever by defendant of his intent to appeal based on the trial court’s denial of his motion to suppress. In his brief, defendant claims to have reserved this right. However, the page in the record referred to by defendant as evidence of his intent to appeal cites only the second page of the judgment, and does not constitute sufficient notice of his intent. We note that the State’s brief asserts that defendant reserved his right to appeal. However, the State cites the Transcript of Plea as reference, and there is nothing in the Transcript of Plea to indicate that defendant was pleading guilty, but reserving his right to appeal.

“This Court... is bound by the record as certified and can judicially know only what appears of record.” State v. Williams, 280 N.C. 132, 137, 184 S.E.2d 875, 878 (1971); and State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). “It is the appellant’s duty and responsibility to see that the record is in proper form and complete.” State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644-45 (1983); see also State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 29 L. Ed. 2d 859 (1971). Here, from the record presented, we cannot determine that defendant has complied with the rules concerning appeals made subsequent to a plea bargain.

In her dissent, Judge Hudson contends that, because the State approved the proposed record on appeal, and the “Organization of Trial Tribunal” in the record contained a statement that defendant pled guilty but reserved his right to appeal the denial of his motion to suppress, then the statement became part of the record, and defendant did preserve his right of appeal. However, counsel cannot correct the record proper by stipulation. Mason v. Commissioners of Moore, 229 N.C. 626, 628, 51 S.E.2d 6, 8 (1948). Thus, it is not enough that counsel states or stipulates that appellant reserved the right to appeal. That portion of the record on appeal reflecting the proceedings in the trial court must show that appellant has the statutory right to appeal. McBride, 120 N.C. App. at 625, 463 S.E.2d at 404 (defendant must notify the State and the trial court of his intent to appeal the denial of a motion to suppress prior to pleading guilty or he waives the right to appeal); N.C. Gen. Stat. § 15A-979(b). Furthermore, we note that the “Organization of Trial Tribunal” is merely a statement in the record for informational purposes and is not binding on the parties. See Drafting Committee Note, North Carolina Rules of Appellate Procedure, 287 N.C. 671, 696 (1975) (“The office of this item is simply to permit routine confirmation by the appellate court of the subject matter jurisdiction or “competence” of the particular trial judge and tribunal....”).

Accordingly, the appeal is dismissed without prejudice to defendant’s right to seek an evidentiary hearing in superior court determining whether or not the guilty plea was entered reserving defendant’s right to appeal the denial of his motion to suppress. If it is determined that defendant pled guilty while properly reserving his right to appeal, review may then be sought by petition for writ of certiorari filed with this Court.

Dismissed.

Chief Judge EAGLES concurs. Judge HUDSON dissents.