An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-163 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County Nos. 12 CRS 206454-55 JEFFERY JEVON BOGGS
Appeal by Defendant from judgment entered 8 July 2013 by
Judge W. Robert Bell in Mecklenburg County Superior Court. Heard
in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State.
Amanada S. Zimmer for Defendant.
STEPHENS, Judge.
On 12 February 2012, the Charlotte-Mecklenburg Police
Department (“CMPD”) received a call about a suspicious vehicle
and two suspicious men. The caller reported that two African-
American men had parked a silver Lincoln at an apartment complex
on Electra Lane, then got out and changed their clothes nearby.
An officer responding to the call determined that the Lincoln -2- had recently been stolen in an armed robbery. About 15-20
minutes later, other CMPD officers stopped two men fitting the
descriptions given by the caller in an area about 200-300 yards
from where the Lincoln was parked. During a pat-down, the
officers discovered a Lincoln car key in the pocket of one of
the men, Defendant Jeffery Jevon Boggs. The key was
subsequently determined to belong to the stolen Lincoln.
On 5 March 2012, Defendant was indicted on one count each
of robbery with a dangerous weapon and conspiracy to commit
robbery with a dangerous weapon. On 5 July 2013, Defendant
moved to suppress evidence obtained during the investigatory
stop, contending that the search was unconstitutional because it
exceeded the scope permitted under Terry v. Ohio, 392 U.S. 1, 20
L. Ed. 2d 889 (1968). The court denied the motion in open court
on 8 July 2013. Defendant did not give notice of intent to
appeal from the denial of his motion, and, the next day, entered
guilty pleas pursuant to an agreement with the State without
reserving his right to appeal the denial of his suppression
motion. Under the agreement, the State dismissed charges
pending against Defendant for attempting to obtain a controlled
substance by fraud/forgery, obtaining a controlled substance by
fraud/forgery, and misdemeanor larceny in exchange for -3- Defendant’s guilty pleas to charges of robbery with a dangerous
weapon and conspiracy to commit robbery with a dangerous weapon.
The trial court consolidated the charges into a single judgment
and sentenced Defendant to 55-78 months in prison as a prior
record level I offender. Following entry of the sentence,
Defendant’s trial counsel stated in open court, “We would
respectfully appeal the case.”
Recognizing that his failure to give notice of his intent
to appeal the denial of his motion to suppress before finalizing
his plea negotiations with the State waived his right of direct
appeal from that denial, on 11 February 2014, Defendant filed a
petition for writ of certiorari with this Court. See N.C.R.
App. P. 21; N.C. Gen. Stat. § 15A-1422(c)(3) (2013). The
petition was referred to this panel by order entered 28 February
2014. We deny the petition and dismiss this appeal.
An order denying a motion to suppress evidence can be
reviewed upon an appeal from a guilty plea. N.C. Gen. Stat. §
15A-979(b) (2013). However, “when a defendant intends to appeal
from a suppression motion denial pursuant to [section] 15A-
979(b), he must give notice of his intention to the prosecutor
and the court before plea negotiations are finalized or he will
waive the appeal of right provisions of the statute.” State v. -4- 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).
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.
The logic of this appellate rule is based on a straightforward theory. Once a defendant strikes the most advantageous bargain possible with the prosecution, that bargain is incontestable by the state once judgment is final. If the defendant may first strike the plea bargain, lock in the State upon final judgment, and then appeal a previously denied suppression motion, it gets a second bite at the apple, a bite usually meant to be foreclosed by the plea bargain itself.
We have previously observed that it is entirely inappropriate for either side to keep secret any attempt to appeal the conviction in circumstances like those before us. The appeals process is not meant to be played like three-card monte, as guessing games in this setting upset basic notions of fairness, and threaten the efficient administration of justice.
State v. McBride, 120 N.C. App. 623, 626, 463 S.E.2d 403, 405
(1995) (citations and internal quotation marks omitted),
affirmed per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996). In
McBride, the Court further observed that it was “bound by the
principle of stare decisis, which demands that like situations
be treated in a consistent manner. In this case, both Reynolds -5- and [State v.] Tew[, 326 N.C. 732, 392 S.E.2d 603 (1990)] have
set forth unequivocal rules concerning appeals made subsequent
to a plea bargain. [The d]efendant has not complied with those
rules.” Id. Accordingly, the Court dismissed the purported
appeal. Id.
Defendant cites State v. Atwell, 62 N.C. App. 643, 303
S.E.2d 402 (1983), in support of his contention that his writ
should be allowed despite the lack of notice of intent to
appeal. We disagree. As the State notes in its response to
Defendant’s petition, in Atwell, there was “at least some
evidence that the district attorney’s office and the [trial
c]ourt had notice of a possible appeal of the denial of the
suppression motion before the guilty plea.” Id. at 644-45, 303
S.E.2d at 404 (noting that an affidavit from a co-defendant’s
counsel stated he had heard discussion of appeal from the
suppression order involving the district attorney and the
district attorney indicated that he had “not been surprised by”
the attempt to appeal from the suppression order). The Court
found this evidence decisive in departing from the general rule,
observing that “[t]his distinguishes this case from Reynolds,
where there was no such evidence.” Id. at 645, 303 S.E.2d at
404. -6- Here, unlike in Atwell, there is no suggestion, let alone
any evidence, that the trial court or district attorney were
aware that Defendant intended to appeal. Instead, Defendant
asserts that we should grant his petition for writ of certiorari
because (1) Defendant’s counsel provided him ineffective
assistance in failing to give notice of Defendant’s intent to
appeal the suppression motion before allowing Defendant to enter
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-163 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County Nos. 12 CRS 206454-55 JEFFERY JEVON BOGGS
Appeal by Defendant from judgment entered 8 July 2013 by
Judge W. Robert Bell in Mecklenburg County Superior Court. Heard
in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State.
Amanada S. Zimmer for Defendant.
STEPHENS, Judge.
On 12 February 2012, the Charlotte-Mecklenburg Police
Department (“CMPD”) received a call about a suspicious vehicle
and two suspicious men. The caller reported that two African-
American men had parked a silver Lincoln at an apartment complex
on Electra Lane, then got out and changed their clothes nearby.
An officer responding to the call determined that the Lincoln -2- had recently been stolen in an armed robbery. About 15-20
minutes later, other CMPD officers stopped two men fitting the
descriptions given by the caller in an area about 200-300 yards
from where the Lincoln was parked. During a pat-down, the
officers discovered a Lincoln car key in the pocket of one of
the men, Defendant Jeffery Jevon Boggs. The key was
subsequently determined to belong to the stolen Lincoln.
On 5 March 2012, Defendant was indicted on one count each
of robbery with a dangerous weapon and conspiracy to commit
robbery with a dangerous weapon. On 5 July 2013, Defendant
moved to suppress evidence obtained during the investigatory
stop, contending that the search was unconstitutional because it
exceeded the scope permitted under Terry v. Ohio, 392 U.S. 1, 20
L. Ed. 2d 889 (1968). The court denied the motion in open court
on 8 July 2013. Defendant did not give notice of intent to
appeal from the denial of his motion, and, the next day, entered
guilty pleas pursuant to an agreement with the State without
reserving his right to appeal the denial of his suppression
motion. Under the agreement, the State dismissed charges
pending against Defendant for attempting to obtain a controlled
substance by fraud/forgery, obtaining a controlled substance by
fraud/forgery, and misdemeanor larceny in exchange for -3- Defendant’s guilty pleas to charges of robbery with a dangerous
weapon and conspiracy to commit robbery with a dangerous weapon.
The trial court consolidated the charges into a single judgment
and sentenced Defendant to 55-78 months in prison as a prior
record level I offender. Following entry of the sentence,
Defendant’s trial counsel stated in open court, “We would
respectfully appeal the case.”
Recognizing that his failure to give notice of his intent
to appeal the denial of his motion to suppress before finalizing
his plea negotiations with the State waived his right of direct
appeal from that denial, on 11 February 2014, Defendant filed a
petition for writ of certiorari with this Court. See N.C.R.
App. P. 21; N.C. Gen. Stat. § 15A-1422(c)(3) (2013). The
petition was referred to this panel by order entered 28 February
2014. We deny the petition and dismiss this appeal.
An order denying a motion to suppress evidence can be
reviewed upon an appeal from a guilty plea. N.C. Gen. Stat. §
15A-979(b) (2013). However, “when a defendant intends to appeal
from a suppression motion denial pursuant to [section] 15A-
979(b), he must give notice of his intention to the prosecutor
and the court before plea negotiations are finalized or he will
waive the appeal of right provisions of the statute.” State v. -4- 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).
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.
The logic of this appellate rule is based on a straightforward theory. Once a defendant strikes the most advantageous bargain possible with the prosecution, that bargain is incontestable by the state once judgment is final. If the defendant may first strike the plea bargain, lock in the State upon final judgment, and then appeal a previously denied suppression motion, it gets a second bite at the apple, a bite usually meant to be foreclosed by the plea bargain itself.
We have previously observed that it is entirely inappropriate for either side to keep secret any attempt to appeal the conviction in circumstances like those before us. The appeals process is not meant to be played like three-card monte, as guessing games in this setting upset basic notions of fairness, and threaten the efficient administration of justice.
State v. McBride, 120 N.C. App. 623, 626, 463 S.E.2d 403, 405
(1995) (citations and internal quotation marks omitted),
affirmed per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996). In
McBride, the Court further observed that it was “bound by the
principle of stare decisis, which demands that like situations
be treated in a consistent manner. In this case, both Reynolds -5- and [State v.] Tew[, 326 N.C. 732, 392 S.E.2d 603 (1990)] have
set forth unequivocal rules concerning appeals made subsequent
to a plea bargain. [The d]efendant has not complied with those
rules.” Id. Accordingly, the Court dismissed the purported
appeal. Id.
Defendant cites State v. Atwell, 62 N.C. App. 643, 303
S.E.2d 402 (1983), in support of his contention that his writ
should be allowed despite the lack of notice of intent to
appeal. We disagree. As the State notes in its response to
Defendant’s petition, in Atwell, there was “at least some
evidence that the district attorney’s office and the [trial
c]ourt had notice of a possible appeal of the denial of the
suppression motion before the guilty plea.” Id. at 644-45, 303
S.E.2d at 404 (noting that an affidavit from a co-defendant’s
counsel stated he had heard discussion of appeal from the
suppression order involving the district attorney and the
district attorney indicated that he had “not been surprised by”
the attempt to appeal from the suppression order). The Court
found this evidence decisive in departing from the general rule,
observing that “[t]his distinguishes this case from Reynolds,
where there was no such evidence.” Id. at 645, 303 S.E.2d at
404. -6- Here, unlike in Atwell, there is no suggestion, let alone
any evidence, that the trial court or district attorney were
aware that Defendant intended to appeal. Instead, Defendant
asserts that we should grant his petition for writ of certiorari
because (1) Defendant’s counsel provided him ineffective
assistance in failing to give notice of Defendant’s intent to
appeal the suppression motion before allowing Defendant to enter
into his plea agreement with the State, and (2) his “guilty plea
was clearly premised on his right to obtain appellate review of
the denial of the motion to suppress.” As for the first
assertion, the proper procedure for Defendant to raise this
issue is to file a motion for appropriate relief in superior
court.
As for the second assertion, it is plainly not “clear” that
Defendant entered his guilty plea because he believed he could
appeal the suppression order. The record equally suggests that
Defendant entered the plea to obtain dismissal of the other
charges then pending against him. To read Defendant’s suggested
intent into the circumstances here would effectively gut our
existing procedures and case law on this issue since all guilty
pleas following denials of motions to suppress would have to be
assumed contingent on the right to appeal those denials. The -7- case cited by Defendant in support of this argument, State v.
Demaio, 216 N.C. App. 558, 716 S.E.2d 863 (2011), is inapposite.
Demaio did not involve a suppression order at all, but rather
concerned a defendant’s right to appeal from a guilty plea which
he argued “was not an informed choice since he did not receive
the benefit of his plea bargain.” Id. at 560, 716 S.E.2d at
864.
Defendant has failed to preserve his right to appeal the
denial of his motion to suppress, and, accordingly, his appeal
is
DISMISSED.
Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).