State v. Jolliff

• Court: Court of Appeals of North Carolina
• Decided: October 7, 2014
• Docket: 14-422
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-422 NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Wake County No. 13 CRS 212414 BRIAN MANUEL JOLLIFF

Appeal by defendant from judgment entered 31 October 2013

by Judge R. Allen Baddour in Wake County Superior Court. Heard

in the Court of Appeals 25 August 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Hal F. Askins, for the State.

Russell J. Hollers, III, for defendant-appellant.

CALABRIA, Judge.

Brian Manuel Jolliff (“defendant”) appeals from a judgment

entered upon defendant’s plea of guilty to the offenses of

habitual driving while impaired (“DWI”) and driving while

license revoked (“DWLR”). We dismiss the appeal.

At approximately 2:00 a.m. on 26 May 2013, Officer James

Boyd (“Officer Boyd”) of the Raleigh Police Department (“RPD”)

initiated a traffic stop of a vehicle that was registered to a -2- woman whose driver’s license was expired. As he approached the

vehicle, Officer Boyd smelled a “moderate” odor of alcohol.

Defendant was seated in the driver’s seat, and Officer Boyd

noted that defendant’s eyes were bloodshot and glassy. As a

result, he began an investigation for a possible DWI offense.

Officer Boyd asked defendant for identification. Defendant

informed the officer that he did not have a driver’s license

with him, but that his name was “Brandon Banks[.]” Defendant’s

speech was slurred. Officer Boyd ordered defendant out of the

car and frisked him. Defendant then consented to a search of

the car. During the search, Officer Boyd discovered a bank

card with defendant’s name in the driver’s side door pocket.

Officer Boyd searched the name on the bank card in the

Department of Motor Vehicle’s database, which produced a

photograph of defendant. Defendant failed to perform a series

of field sobriety tests, and Officer Boyd formed the opinion

defendant was appreciably impaired and placed him in custody.

Defendant was transported to the Wake County Public Safety

Center (“WCPSC”) where Officer Gregory Modetz (“Officer

Modetz”), a licensed chemical analyst for RPD, asked him for a

breath sample. Upon defendant’s refusal, Officer Modetz

obtained a search warrant permitting him to take a sample of -3- defendant’s blood. Officer Modetz prepared the blood draw kit

and observed a registered nurse from the WCPSC obtain two vials

of defendant’s blood. Officer Modetz labeled both vials, and

placed an “integrity seal” and a white seal over the samples.

He then put the sealed vials back into the blood draw kit, which

was sealed in another plastic bag. Officer Modetz then

transported the sealed package to the RPD’s downtown office,

where he placed the sealed package in a refrigerated evidence

locker. The sealed package was subsequently moved by an unknown

individual from the refrigerated evidence locker to a larger

refrigerator located one floor down from the evidence locker.

On 5 June 2013, RPD Evidence Specialist Curtis King

(“King”) removed defendant’s sealed evidence from the large

refrigerator and transported it to the Raleigh/Wake City-County

Bureau of Identification (“CCBI”) for analysis. A CCBI evidence

technician assigned a CCBI number to defendant’s sealed blood

tubes, which were then locked in an individual compartment of a

CCBI refrigerator. CCBI forensic chemist Irvin Alcox (“Alcox”)

later removed defendant’s blood vials from the locked

refrigerator compartment and tested the blood for alcohol

concentration. The test results reflected an alcohol -4- concentration of .21 grams of alcohol per 100 milliliters of

blood.

Defendant was indicted for felony DWI, habitual DWI, and

DWLR. Beginning 29 October 2013, defendant was tried by a jury

in Wake County Superior Court. On 30 October 2013, defendant

pled guilty to the offenses of habitual DWI and DWLR. Trial

continued for the remaining DWI charge. Alcox testified at

trial, over defendant’s objection, regarding the results of

defendant’s blood test. Later that afternoon, the jury returned

a verdict finding defendant guilty of DWI. The trial court

arrested judgment on the DWI offense. The court then

consolidated the remaining offenses and sentenced defendant to a

minimum of fifteen months to a maximum of twenty-seven months in

the North Carolina Division of Adult Correction. Defendant

appeals.

Defendant’s sole argument on appeal is that the trial court

erred by allowing the results of his blood test into evidence

over defendant’s objection. Specifically, defendant contends

that there was a break in the chain of custody when the test

tubes were moved from the refrigerated evidence locker to the

larger refrigerator which rendered the blood test results

inadmissible. Since defendant’s argument is not authorized by -5- N.C. Gen. Stat. § 15-1444 (2013) as an appropriate ground for

appeal after a guilty plea, we dismiss this argument.

“In North Carolina, a defendant's right to pursue an appeal

from a criminal conviction is a creation of state statute.”

State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404

(1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).

Pursuant to N.C. Gen. Stat. § 15A-1444, “a defendant who has

entered a plea of guilty is not entitled to appellate review as

a matter of right, unless the defendant is appealing sentencing

issues or the denial of a motion to suppress, or the defendant

has made an unsuccessful motion to withdraw the guilty plea.”

State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870

(2002).

In the instant case, the judgment entered against defendant

was based upon the offenses of habitual DWI and DWLR. Defendant

pled guilty to both of these offenses. The trial court arrested

judgment on the DWI conviction, which was the only offense that

was decided by a jury verdict, which would have permitted a

broader right of appeal. Since defendant appeals from a

judgment entered only upon guilty pleas and does not argue any

of the grounds permitted by N.C. Gen. Stat. § 15A-1444, we are

compelled to dismiss this appeal. -6- We briefly note that it appears that counsel and the trial

court below were acting under a misapprehension of law when

defendant entered his guilty plea to habitual DWI. The

transcript of plea and the plea colloquy both refer to defendant

“admitting” the “status of an habitual offender” and seem to

indicate that the trial court and counsel believed that

defendant’s plea would merely enhance his potential conviction

for the DWI offense. However, it is well established that “the

offense of habitual impaired driving as defined by G.S. § 20-

138.5 constitutes a separate substantive felony offense which is

properly within the original exclusive jurisdiction of the

superior court.” State v. Priddy, 115 N.C. App. 547, 548, 445

S.E.2d 610, 612 (1994). Nonetheless, the type of effect, if

any, this misapprehension of law had on the validity of

defendant’s plea is not properly before us. Defendant’s appeal

is dismissed.

Dismissed.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).