State v. Gerard

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-1120
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1120 NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County Nos. 10 CRS 218127-30, 32, 34 HEATH TAYLOR GERARD

Appeal by Defendant from judgments entered 7 May 2013 and

from amended order entered 20 May 2013 by Judge Yvonne Mims

Evans in Superior Court, Mecklenburg County. Heard in the Court

of Appeals 18 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Tin Fulton Walker & Owen, PLLC, by C. Melissa Owen, for Defendant.

McGEE, Judge.

Heath Taylor Gerard (“Defendant”) was indicted on 7 June

2010 for six counts of third-degree sexual exploitation of a

minor. Detective C.E. Perez (“Detective Perez”), of the

Charlotte-Mecklenburg Police Department, obtained a search

warrant on 14 April 2010 to conduct a search of Defendant’s -2- residence. Defendant filed a motion on 3 April 2013 to suppress

evidence seized during the 14 April 2010 search of his

residence. Defendant based his motion to suppress on violations

of both the United States Constitution and the North Carolina

Constitution.

In an order entered on 20 May 2013, the trial court

concluded that “the warrant affidavit was ‘purely conclusory’ in

stating that probable cause existed.” The trial court found

that the affidavit did not indicate how Detective Perez

identified seventeen computer files from Defendant’s computer as

child pornography. However, the trial court further concluded

that the good faith exception applied and denied Defendant’s

motion to suppress. Defendant entered a plea of “guilty

pursuant to Alford decision” to six counts of third-degree

sexual exploitation of a minor. Defendant appeals.

We must first address the issue of whether Defendant has

the right to appeal. “[W]hen a defendant intends to appeal from

a suppression motion denial pursuant to G.S. 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. Reynolds,

298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979). “A Notice of

Appeal is distinct from giving notice of intent to appeal” prior -3- to a plea bargain. State v. McBride, 120 N.C. App. 623, 625,

463 S.E.2d 403, 405 (1995), aff’d per curiam, 344 N.C. 623, 476

S.E.2d 106 (1996).

In the present case, Defendant gave oral notice of appeal

at trial after pleading guilty. However, Defendant failed to

give notice of his intention to appeal either to the State or

the trial court before plea negotiations were finalized. In

fact, Defendant admitted, after the entry of the plea and just

before giving oral notice of appeal, that he did not give notice

of intent before his plea:

[Defense Counsel]. We do have one other matter that I did not preserve before the entry of the guilty plea. We would like to note our objection to the Court’s finding as it relates to the motion to suppress, and we’d like to enter notice of appeal.

Furthermore, the box for information on “Plea Arrangement”

in the document titled “Transcript of Plea” in the record is

blank. Thus, Defendant’s appeal must be dismissed. McBride,

120 N.C. App. at 626, 463 S.E.2d at 405; State v. Pimental, 153

N.C. App. 69, 76, 568 S.E.2d 867, 871-72 (2002).

Dismissed.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).