State v. Jonas

• Court: Supreme Court of North Carolina
• Decided: May 23, 2024
• Docket: 433PA21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 433PA21

Filed 23 May 2024

STATE OF NORTH CAROLINA

v. DANIEL RAYMOND JONAS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 280 N.C. App. 511 (2021), reversing and remanding an order

entered on 17 December 2019 by Judge Athena Brooks in Cabarrus County Superior

Court, Cabarrus County, and remanding the case. Heard in the Supreme Court on

12 September 2023.

Joshua H. Stein, Attorney General, by Kristin Jo Uicker, Special Deputy Attorney General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Amanda S. Zimmer, Assistant Appellate Defender, for defendant-appellee.

RIGGS, Justice.

Under the General Statutes of North Carolina, a defendant has the right to

appeal the denial of a motion to suppress after the entry of a guilty plea. N.C.G.S. §

15A-979(b) (2023). However, to ensure fundamental fairness in the plea negotiation

process, this Court ruled in State v. Reynolds that the statute did not apply in

situations where the State and a defendant had negotiated a plea agreement, holding

that a defendant must “give notice of his intention [to appeal the denial of the motion STATE V. JONAS

Opinion of the Court

to suppress] to the prosecutor and the court before plea negotiations are finalized or

he will waive the appeal of right provisions of the statute.” 298 N.C. 380, 397 (1979).

In this case, the State asks us to extend Reynolds to apply when a defendant pleads

guilty without a plea agreement (sometimes referred to as an “open plea” or “straight

plea”). Because open pleas do not necessitate the expansion of Reynolds we decline

to apply the Reynolds rule to open pleas. We hold that when a defendant enters a

guilty plea without a plea agreement, the defendant does not waive his or her right

of appeal by pleading guilty without prior notice of intent to appeal.

I. Factual & Procedural Background

Defendant Daniel Raymond Jonas was indicted for possession of a controlled

substance after officers located 0.1 grams of methamphetamine in his car during a

traffic stop. Mr. Jonas filed a pre-trial motion to suppress, in which he argued that

the officer lacked reasonable articulable suspicion for the stop and subsequent search

of Mr. Jonas’s vehicle. The trial court denied the motion to suppress the evidence.

Subsequently, Mr. Jonas pleaded guilty as charged during a sentencing

hearing. Before accepting Mr. Jonas’s guilty plea, the trial court asked Mr. Jonas if

he had agreed to plead guilty as part of a plea arrangement, and Mr. Jonas confirmed

that he had not. The State did not object or correct Mr. Jonas’s assertion. Mr. Jonas

then pleaded guilty. Mr. Jonas did not give notice of his intent to appeal before the

entry of his guilty plea, but minutes after sentencing, at the same hearing, Mr.

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Jonas’s counsel gave oral notice of appeal on the record. That is, the guilty plea and

the notice of appeal occurred on the same day at the same hearing.

The Court of Appeals, in a unanimous decision, held that Mr. Jonas was not

required to give notice of intent to appeal the denial of the motion to suppress prior

to entering his guilty plea because he did not plead guilty pursuant to a plea

agreement. State v. Jonas, 280 N.C. App 511, 516 (2021). The Court of Appeals

further held that the stop of Mr. Jonas’s vehicle was unconstitutional, and that the

trial court erred when it denied Mr. Jonas’s motion to suppress. Id. at 525.

II. Analysis

In this appeal, the State argues that a defendant who enters a guilty plea

without a plea agreement is still obligated to comply with the rule established in

Reynolds, in order to retain his or her right to appeal. Such defendant, according to

the State, must advise the trial court and the prosecutor of the defendant’s intent to

appeal the denial of a motion to suppress prior to the entry of his or her plea. Because

the principles of fundamental fairness that dictated the outcome in Reynolds are not

implicated when there is no plea agreement, we hold that defendants who plead

guilty without a plea agreement are not obligated to provide notice of intent to appeal

the denial of a motion to suppress prior to the entry of a guilty plea.

Broadly speaking, the General Assembly established a statutory right to

appeal the denial of a motion to suppress even when a defendant enters a guilty plea.

N.C.G.S. § 15A-979(b). This Court in Reynolds ruled when the defendant enters a

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guilty plea pursuant to a plea agreement they must give notice of intent to appeal

before entering the plea. Reynolds, 298 N.C. at 397. However, the reasoning that

undergirds the Reynolds rule is not implicated when the defendant enters a guilty

plea without a plea agreement.

Generally, when a defendant enters a “guilty plea, intelligently and voluntarily

[and] with the aid of counsel, [the plea] bars the latter assertion of constitutional

challenges to the plea negotiation proceeding.” Id. at 394 (citing Brady v. United

States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Parker v.

North Carolina, 397 U.S. 790 (1970)). However, in McMann, the Supreme Court

identified an exception to this general rule holding that a plea is a waiver of the right

to contest the admissibility of any evidence the State might have offered against the

defendant “unless the applicable law otherwise provides.” 397 U.S. at 766 (emphasis

added).

Here, similar to the New York statute in McMann, the General Assembly has

provided the right for a defendant to seek appellate review of “[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.” N.C.G.S.

§ 15A-979(b) (emphasis added). The General Assembly enacted the statute with the

intention of “prevent[ing] a defendant whose only real defense is the motion to

suppress from going through a trial simply to preserve his right of appeal.” N.C.G.S.

§ 15A-979, Official Commentary.

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In Reynolds, this Court considered whether a defendant should be able to avail

himself of the right of appeal under N.C.G.S. § 15A-979(b) after receiving the benefit

of a negotiated plea agreement when he did not disclose his intent to appeal during

the plea negotiations. 298 N.C. at 397. In the arena of plea bargaining, the Court

noted that it was “entirely inappropriate for either side to keep secret any attempt to

appeal the conviction.” Id. The Court held that when a defendant intends to appeal

from a suppression order, “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.” Id.

Both parties in Reynolds benefited from the negotiated plea. The State made

a significant concession in the Reynolds plea agreement. The defendant was charged

with first-degree murder, first-degree rape, and first-degree burglary. Id. at 381.

After the court denied the defendant’s motion to suppress evidence, the State agreed

to a plea arrangement where the defendant pleaded guilty to the lesser charge of

second-degree murder, in addition to first-degree rape, and first-degree burglary, and

he received two consecutive life sentences. Id. at 381-82. Through the bargain, the

defendant avoided conviction on more serious charges and the State avoided having

to conduct a trial. Only after the court accepted the negotiated plea and several

months later imposed the agreed-upon sentence did the defendant give notice of

appeal of the denial of his motion to suppress. Id. at 388. In holding that the

defendant had waived his right to appeal by failing to disclose his intent to appeal,

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this Court reasoned that neither “our statute, nor the holding in Lefkowitz[1]

contemplates a factual pattern such as that disclosed here—one which would cause

the State to be trapped into agreeing to a plea bargain in a case as gruesome as this

and then have the defendant contest that bargain.” Id. at 397. The Reynolds rule

was necessary to advance the interest of fundamental fairness: both parties received

a benefit of the bargain and the defendant’s nondisclosure of his intent to appeal

upended one of the State’s benefits—an expectation of finality—after it made a

concession on charges. See id. at 396–97.

In contrast to Reynolds, this case turns on the significance of an open plea—a

guilty plea entered without the benefit of an agreement with the State. In North

Carolina, there is no system that tracks when charges are resolved through an open

plea other than the plea transcript form (which includes a place where it can be

designated there was no plea agreement) and the transcript of the plea hearing

(including the colloquy). However, North Carolina does track the percentage of

charges that are resolved through pleas rather than trials, which was 98% of all

felony charges in 2022. N.C. Sent’g & Pol’y Advisory Comm’n, Structured Sentencing

Statistical Report for Felonies and Misdemeanors: Fiscal Year 2022, at 4 (2023),

https://www.nccourts.gov/assets/documents/publications/SPAC-FY-2022-Statistical-

1 In Lefkowitz v. Newsome, the United States Supreme Court held, in the context of a

federal habeas corpus proceeding, “that when state law permits a defendant to plead guilty without forfeiting his [or her] right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursing those constitutional claims.” 420 U.S. 283, 293 (1975).

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Report-web-v2.pdf?VersionId=5JR2.GZTlun8tyouDZHNniXDWrmyM._w. The State

has not advanced the argument that notwithstanding the plea transcript form and

whatever answers a defendant may give in response to a plea colloquy, the State

always engages in some form of plea negotiation.

While it appears that this Court has never addressed open pleas, the Court of

Appeals has repeatedly acknowledged the existence of open pleas. See, e.g., State v.

Frink, 158 N.C. App. 581, 588 (2003) (“[A co-conspirator’s] guilty plea was an open

plea of guilty, and not a plea agreement with the State.”); State v. Ellerbe, No. COA23-

60, slip op. at 2-3 (N.C. Ct. App. Dec. 5, 2023) (unpublished) (“The prosecutor

indicated that there was no plea arrangement—this was ‘a completely open plea’ in

which the trial court would determine the sentence.”); State v. Lail, No. COA19-596,

slip op.at 1-2 (N.C. Ct. App. June 2, 2020) (unpublished) (reviewing an Anders brief

after the defendant entered an open plea); State v. Nevills, 158 N.C. App. 733, 736

(2003) (discussing whether it was error for the trial court to refer to an open plea as

an agreement). There are some scholarly examinations about the prevalence of open

pleas, and at least in some geographic areas, the prevalence may be related to local

policies and preferences of prosecutors for reaching plea bargains. See Ronald Wright

& Marc Miller, The Screening/Bargaining Tradeoff, 55 Stan. L. Rev. 29, 74 (2002)

(presenting evidence showing the “open plea” rate is much higher in New Orleans

than in other jurisdictions because New Orleans has implemented hard screening

practices coupled with restrictions on plea bargaining); Russell D. Covey, Plea

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Bargaining and Price Theory, 84 Geo. Wash. L. Rev. 920, 948 (2016) (discussing that

even when Alaska temporarily prohibited prosecutors from engaging in plea

bargaining, defendants still pled guilty in approximately eighty percent of all

criminal cases by entering open pleas). During an oral argument before the Supreme

Court of the United States, the Office of the United States Solicitor General estimated

that twenty-five percent of pleas in the federal system are “open pleas” that do not

involve promises from the government in exchange for the defendant’s guilty plea.

Oral Argument at 55:02, Class v. United States, 583 U.S. 174 (2018) (No. 16-424),

https://www.oyez.org/cases/2017/16-424.2 Thus, it seems uncontested that open pleas

are a phenomenon, and now we turn to whether the Reynolds rule applies to them.

This Court has not expressly applied the Reynolds rule to an open plea;

however, Reynolds was invoked in State v. Tew, 326 N.C. 732 (1990), a case in which

it was not clear whether the defendant entered a negotiated or open guilty plea. That

case does not answer the question here, to the best we can ascertain. In Tew, the

defendant was charged with a misdemeanor, driving while impaired, and was found

guilty in district court. Id. at 734. The defendant appealed to the superior court and

after the court denied his motion to suppress, he entered a plea of guilty, specifically

reserving his right to appeal the denial of his motion to suppress. Id. On appeal, this

Court considered whether the defendant had properly preserved the right to appeal.

2 In Class v. United States, the United States Supreme Court held that a guilty plea

does not waive a defendant’s right to challenge the constitutionality of the statute under which he was convicted. 583 U.S. 174, 176 (2018).

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Id. Citing Reynolds, the Court simply said the “defendant did in fact specifically

reserve his right to appeal upon entering his plea of guilty.” Id. at 735. Having so

found, the majority in Tew focused on the merits of the preserved appeal. Id.

Neither the opinion nor the trial court’s judgment in Tew indicates whether

the guilty plea was pursuant to a negotiated plea agreement or an open plea.

According to the record in Tew, the defendant received the minimum punishment of

seven days in custody, but the length of the sentence does not provide any clarity as

to whether it followed a plea agreement or an open plea. The Court’s analysis of the

application of Reynolds is short—only one sentence—and does not state that the

Court was expanding the scope of the Reynolds rule to include open plea agreements.

Id. at 735. The opinion simply states that the defendant in Tew preserved his right

to appeal. Id. The record in Tew, which dates back almost thirty-five years, does not

include a plea transcript, and so nothing in the record clarifies whether the State and

the defendant entered into a plea agreement. Because the judgment in Tew is silent

on whether the defendant had a plea agreement and the decision did not explicitly

expand the rule established in Reynolds, we read Tew as simply reciting the current

state of the law related to Reynolds without expanding its scope.3

3 See Howard v. Boyce, 254 N.C. 255, 265 (1961) (noting, in reconciliation of arguably

conflicting North Carolina Supreme Court precedents, that “decided cases should be examined more from the standpoint of the total factual situations presented than the exact language used. A decision of the Supreme Court must be interpreted within the framework of the facts of that particular case.”).

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Significantly, in the context of an open plea, the statutory right to appeal

cannot operate to undermine the fundamental fairness of a negotiated agreement

because there are no concessions or negotiated benefits. In an open plea scenario,

both sides are operating without any promise or benefit of a bargain from the other

side. From the State’s perspective, there are many reasons why the prosecutor may

prefer not to engage in plea negotiation, from the time it takes to negotiate to the

political ramifications of accepting plea agreements. From the defendant’s

perspective, a quick guilty plea, freed from the time it may take to negotiate with the

prosecutor, may secure the speedier release of a defendant who cannot afford bail and

does not face a long sentence. Structured Sentencing Statistical Report, at 3, 9, & 13

(highlighting that 60% to 70% of all charged felonies are low-level and eligible for

community punishment or an active sentence shorter than the time spent in custody

awaiting trial). The reason for the entry of an open plea matters less than the fact

that without any negotiation or concessions made by both sides, there can be no

trickery or unfair dealing.

We do not worry that the State may be trapped into accepting unfair open pleas

because of the safeguards that current plea negotiation procedures already supply.

When the State and a defendant enter into a plea agreement, there are statutory

requirements to document the agreement. During sentencing, the trial court must

ask the prosecutor, defense counsel, and the defendant personally “whether there

were any prior plea discussions [and] whether the parties have entered into any

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arrangement with respect to [a] plea.” N.C.G.S. § 15A-1022(b) (2023). The prosecutor

can indicate on the record if there was, in fact, a plea agreement and an expected

benefit for the State. Moreover, our statutes and case law provide clear direction that

plea agreements are not final until they are approved by the court and finalized in

the judgment of the court. See, e.g., State v. Marlow, 334 N.C. 273, 281 (1993)

(recognizing that the State can rescind a plea agreement prior to approval by the

court so long as the defendant did not detrimentally rely upon the agreement);

N.C.G.S. § 15A-1023(b) (2023) (stating that a plea agreement containing a sentencing

recommendation must have judicial approval before becoming effective). These

established requirements for plea agreements and the Reynolds rule for plea

agreements provide guardrails sufficient to ensure that a defendant cannot trap the

State in an unfair agreement while retaining his or her right to appeal.

In this case, Mr. Jonas did not receive any benefit from the State for entering

a guilty plea to the charge. Mr. Jonas was charged with possession of 0.1 grams of

methamphetamine, a class I felony. At the time of the sentencing hearing, the court

asked Mr. Jonas if the plea was subject to any agreement with the State, and Mr.

Jonas indicated that it was not. The court then stated, “I understand this is an open

plea, meaning it will be up to me what the sentence is.” The State entered no

objection to the accuracy of that statement. Based upon his prior record level, Mr.

Jonas was sentenced to a minimum of six months and a maximum of seventeen

months in custody, in the presumptive range for a class I felony. The sentence was

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suspended, and Mr. Jonas was placed on thirty months of supervised probation.

Before entering his guilty plea, Mr. Jonas served 101 days in custody, and he was

given credit for that time served toward his sentence. While the trial court did

suspend the sentence, it was not at the recommendation of the State, and by entering

an open guilty plea, Mr. Jonas secured his immediate release from incarceration. At

the sentencing hearing, the State knew that the trial court had previously denied the

motion to suppress—the State emphasized that it was ready to go to trial, that the

plea was being entered on the eve of trial, and the State made no objection when the

court explained that it was an open plea and sentencing was entirely within the

court’s discretion. The sentencing hearing began at 2:53 p.m. and concluded at 3:07

p.m. In the course of that fourteen minutes, Mr. Jonas pleaded guilty and verbally

noticed his appeal of the denial of his motion to suppress. In short, nothing about the

facts of this case suggest that the concerns implicated in Reynolds dictate the same

outcome here—there were no negotiations, no surprise, and no belabored extensions

of the proceedings as in Reynolds.

Even beyond the facts of this case, there is no justification to expand the

application of Reynolds to abrogate the statute’s application to open pleas. The

legislature enacted N.C.G.S. § 15A-979 to allow a defendant whose only real defense

is a motion to suppress to preserve his right of appeal without compelling the State

to go through a trial. N.C.G.S. § 15A-979, Official Commentary. While this Court

ruled in Reynolds that the statute did not apply to cases where a plea arrangement

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had been negotiated, because the principles of fundamental fairness in the justice

system required it, we do not treat lightly the impact of expanding the Reynolds rule

would have here. Criminal defendants are not required by any statute to engage in

plea negotiations with the State, and both the State and any defendant remain free

to negotiate a plea agreement that would create a final resolution and invoke the

Reynolds rule. We hold today that when defendants enter a guilty plea without any

plea agreement, they do not need to provide notice of intent to appeal before the entry

of a guilty plea to retain their statutory right to appeal under N.C.G.S. § 15A-979.

Our holding today does not disturb the rule set forth in Reynolds and

referenced in Tew: when a defendant enters a plea in accordance with a plea

agreement and intends to appeal from the denial of a suppression motion pursuant

to N.C.G.S. § 15A-979(b), he or she must give notice of his or her intent to appeal

before the court accepts the plea or he or she will waive the appeal of right provision

of the statute. See Reynolds, 298 N.C. at 397.

III. Conclusion

We hold that a defendant who pleads guilty without a plea agreement is not

required to provide notice of intent to appeal prior to entry of the guilty plea to retain

his right to appeal both the denial of the suppression motion and the judgment

pursuant to N.C.G.S. § 15A-979. Accordingly, we affirm the decision of the Court of

Appeals.

AFFIRMED.

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Newby, C.J., dissenting

Chief Justice NEWBY, dissenting.

The sole issue presented in the State’s petition for discretionary review is

whether a criminal defendant has preserved his statutory right to appeal a denied

motion to suppress when he fails to give notice of his intent to appeal before he pleads

guilty without a plea agreement. This Court answered this question in the negative

in State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990). Because the majority silently

overturns that thirty-four-year-old precedent and disrupts criminal procedure in this

State, I respectfully dissent.

Defendant was indicted for Possession of a Schedule II Controlled Substance

on 28 June 2019. On 31 October 2019, defendant moved to suppress the evidence,

arguing it was seized in violation of his rights under the United States Constitution

and the North Carolina Constitution. On 19 November 2019, the trial court denied

his motion. The State was fully prepared for trial.

On 3 March 2020, defendant personally pled guilty at a plea hearing, and he

did not couch his guilt as an “Alford plea” pursuant to North Carolina v. Alford, 400

U.S. 25, 91 S. Ct. 160 (1970), or as a no-contest plea.1 When the trial court asked

1 See generally State v. Taylor, 374 N.C. 710, 719 n.3, 843 S.E.2d 46, 52 n.3 (2020) (“An

Alford plea is a type of guilty plea recognized by North Carolina’s General Court of Justice in which a criminal defendant accepts that the State has sufficient evidence to convict him, but the defendant does not actually admit his guilt.”); State v. Norman, 276 N.C. 75, 79, 170 S.E.2d 923, 926 (1969) (“A plea of nolo contendere [(no contest)] is a formal declaration on [the] defendant’s part that he will not contend with the State in respect to the charge and is tantamount to a plea of guilty for purposes of the particular criminal action in which it is tendered and accepted.”).

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defendant if he was in fact guilty, defendant responded, “Yes, sir.” The Plea

Transcript reflects defendant’s acknowledgment of guilt.

When the trial court asked defendant if he was pleading guilty as part of a plea

agreement, defendant answered, “No, sir.” The trial court responded, “No. There’s not

[a plea agreement] listed here. I understand this is an open plea . . . ?” Defendant

responded, “Yes, sir.” The Plea Transcript reflects that defendant pled guilty but that

his plea was not part of a plea agreement.

Throughout the plea colloquy, defendant did not give the prosecutor or the trial

court notice of his intent to appeal the denied motion to suppress. Accordingly, the

Plea Transcript also does not contain a statement reserving defendant’s right to

appeal the denied motion.

Defendant, defense counsel, the prosecutor, and the trial court signed the Plea

Transcript, and the trial court accepted defendant’s unilateral guilty plea. The trial

court then sentenced defendant to a suspended sentence of six to seventeen months

and placed defendant on supervised probation for thirty months. Only thereafter did

defendant orally give notice of appeal “with regard to the motion to suppress.”

On appeal, the Court of Appeals considered whether this Court’s decision in

State v. Reynolds required defendant to give notice of his intent to appeal before

unilaterally pleading guilty without a plea agreement. State v. Jonas, 280 N.C. App.

511, 515–16, 867 S.E.2d 563, 566 (2021). See generally State v. Reynolds, 298 N.C.

380, 397, 259 S.E.2d 843, 853 (1979) (“[W]hen a defendant intends to appeal from a

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suppression motion denial pursuant to [N.C.]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.”), cert. denied, 446 U.S.

941, 100 S. Ct. 2164 (1980). The Court of Appeals distinguished Reynolds because

that case involved a negotiated plea, whereas defendant in the present case entered

a unilateral plea without a plea agreement. Jonas, 280 N.C. App. at 516, 867 S.E.2d

at 567. Accordingly, the Court of Appeals held that defendant was not required to

give notice of his intent to appeal the denied suppression motion. Id. The court

reasoned that because defendant did not negotiate his plea, the State was “not

‘trapped into agreeing to a plea bargain’ only to later ‘have[ ] [d]efendant contest that

bargain.’ ” Id. (first alteration in original) (quoting Reynolds, 298 N.C. at 397, 259

S.E.2d at 853). The Court of Appeals therefore concluded it had appellate jurisdiction.

Id. at 517, 867 S.E.2d at 567. On the merits, the Court of Appeals reversed the trial

court’s suppression order and remanded the case. Id. at 525, 867 S.E.2d at 571.

The State sought discretionary review only as to whether defendant was

required to provide notice of his intent to appeal. This Court allowed the State’s

petition on 17 August 2022.

This Court must decide whether defendant preserved his statutory right of

appeal when he did not give notice of his intent to appeal a denied motion to suppress

before he unilaterally pled guilty. This is a question of law. Questions of law are

reviewed de novo. State v. Khan, 366 N.C. 448, 453, 738 S.E.2d 167, 171 (2013).

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A defendant does not have a constitutional right to appeal a criminal

conviction. State v. Berryman, 360 N.C. 209, 212–14, 624 S.E.2d 350, 353–54 (2006).

Rather, a “criminal defendant’s right to appeal a conviction is provided entirely by

statute.” Id. at 214, 624 S.E.2d at 354. The General Statutes provide a broad right of

appeal to defendants who enter pleas of not guilty and are subsequently convicted.

N.C.G.S. § 15A-1444(a) (2023) (“A defendant who has entered a plea of not guilty to

a criminal charge, and who has been found guilty of a crime, is entitled to appeal as

a matter of right when final judgment has been entered.”).

The General Statutes are not so generous, however, towards defendants who

plead guilty or no contest. Indeed, a defendant who enters a plea of guilty or no

contest “is not entitled to appellate review [of his conviction] as a matter of right”

except in a few statutorily prescribed circumstances. Id. § 15A-1444(e).

Relevant here, subsection 15A-979(b) provides 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.” Id. § 15A-979(b)

(emphasis added). Accordingly, “[although] generally a defendant who pleads guilty

to criminal charges may not appeal from the resulting conviction, a trial court’s order

denying a motion to suppress evidence may be reviewed upon an appeal from a guilty

plea.” State v. Robinson, 383 N.C. 512, 518 n.1, 881 S.E.2d 260, 264 n.1 (2022)

(citations omitted) (first citing N.C.G.S. § 15A-1444(a1) (2021); and then citing id.

§ 15A-979(b)).

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As a matter of issue preservation, however, this Court requires a defendant to

be forthright with both the trial court and the prosecutor if he wishes to pursue an

appeal under subsection 15A-979(b). Reynolds, 298 N.C. at 397, 259 S.E.2d at 853;

Tew, 326 N.C. at 735, 392 S.E.2d at 605; cf. N.C. R. App. P. 10(a) (requiring parties

to raise issues at the trial court, thereby inhibiting their ability to conceal issues until

appeal). See generally N.C. Const. art. IV, § 13, cl. 2 (“The Supreme Court shall have

exclusive authority to make rules of procedure and practice for the Appellate

Division.”). Gamesmanship with criminal justice is not tolerated, and a defendant

must disclose his intent to appeal a denied motion to suppress before plea

negotiations are finalized or terminated and the plea is accepted. See Reynolds, 298

N.C. at 397, 259 S.E.2d at 853; see also Tew, 326 N.C. at 735, 392 S.E.2d at 605. If

the defendant does not, he has failed to preserve his right to appeal, and the appellate

courts may not hear his appeal.

This fundamentally fair rule originated in this Court’s opinion in State v.

Reynolds. There, the defendant negotiated plea agreements with the State after the

trial court denied his motion to suppress evidence. 298 N.C. at 388, 259 S.E.2d at 848.

The defendant then appealed the denied suppression motion “[i]mmediately after the

sentence was imposed.” Id. The trial court, however, determined that the defendant

had waived his right to appeal because he did not disclose his intention to appeal

before entry of the pleas. Id. at 389, 259 S.E.2d at 848. This Court agreed with the

trial court. See id. at 394–97, 259 S.E.2d at 852–53. We held that to preserve

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subsection 15A-979(b)’s statutory right to appeal, a defendant must give notice of his

intent to appeal the denial of a motion to suppress to the prosecutor and the trial

court “before plea negotiations are finalized.” Id. at 397, 259 S.E.2d at 853. We

reasoned that notice of intent to appeal a denied suppression motion prior to pleading

guilty is necessary because “the State acquires a legitimate expectation of finality”

when a “defendant chooses to bypass the orderly procedure for litigating” a criminal

case. Id. (quoting Lefkowitz v. Newsome, 420 U.S. 283, 289, 95 S. Ct. 886, 889 (1975));

see also id. (“The plea bargaining table does not encircle a high stakes poker game. It

is the nearest thing to arm’s length bargaining the criminal justice system confronts.

As such, it is entirely inappropriate for either side to keep secret any attempt to

appeal the conviction.”). Ultimately, Reynolds turned on fairness to the State—and,

inherently, the victims it represents.

Eleven years later, this Court decided Tew and extended Reynolds’s holding to

cases in which the defendant does not plead guilty in exchange for promises from the

State. In Tew the defendant moved to suppress evidence discovered during his arrest.

326 N.C. at 734, 392 S.E.2d at 604. The trial court denied the defendant’s motion to

suppress. Id. The defendant then immediately pled guilty while “specifically

reserving his right to appeal the denial of his motion to suppress.” Id. Even though it

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did not appear that the defendant entered his plea pursuant to a plea agreement,2

this Court still applied the notice requirement from Reynolds. Id. We stated, in full,

This Court has held that when a defendant intends to appeal from the denial of a suppression motion pursuant to [subsection § 15A-979(b)], he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute. State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980). In the case sub judice, defendant did in fact specifically reserve his right to appeal upon entering his plea of guilty. Consequently, the path has been paved for us now to address the substantive issue presented.

Id. at 735, 392 S.E.2d at 605 (emphasis added). This Court then addressed the merits

of the defendant’s appeal. Tew therefore extended the Reynolds rule to situations in

which defendants unilaterally plead guilty without plea agreements.

According to these long-standing precedents, a defendant must give notice to

the trial court and the prosecutor of his intent to appeal the denial of a motion to

suppress before the trial court accepts the guilty plea—regardless of whether the plea

is pursuant to a plea agreement. As this Court recently summarized,

a defendant who wishes to maintain a right to appeal from the denial of a motion to suppress despite pleading guilty after the denial of the motion must either include in the plea transcript a statement reserving the right to appeal the motion to suppress or orally advise the trial court and the prosecutor before the conclusion of plea negotiations that the defendant intends to appeal the denial of the

2 The majority acknowledges that the record in Tew is bereft of any evidence suggesting that the defendant’s plea was pursuant to a plea agreement.

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motion to suppress.

Robinson, 383 N.C. at 518 n.1, 881 S.E.2d at 264 n.1.

Here defendant gave neither the trial court nor the prosecutor notice that he

intended to appeal the denied suppression motion prior to the trial court’s acceptance

of his guilty plea. Indeed, defendant did not even mention the prospect of appealing

the denied suppression motion until after the trial court conducted the plea colloquy,

accepted his plea, and pronounced a sentence. Therefore, defendant failed to abide by

the rule set forth in Reynolds and Tew. Accordingly, he did not preserve his statutory

right to appeal.

The majority, however, holds that criminal defendants need not give notice of

their intent to appeal a denied motion to suppress to the prosecutor or the trial court

before unilaterally pleading guilty. By so holding, the majority dismisses Tew as

irrelevant because the Court did not expressly state that Reynolds applies to

unnegotiated, unilateral plea deals. This conclusion is wrong because it ignores the

fact that Tew plainly applied the Reynolds rule in a situation in which the defendant

did not plead pursuant to a plea agreement. If the Court in Tew had not intended to

extend Reynolds to situations in which a defendant unilaterally pleads guilty without

a plea agreement, we would have simply addressed the defendant’s appeal without

first considering if he satisfied the rule in Reynolds. Indeed, we would not have said

the “path has been paved” to consider defendant’s appeal unless a path needed

paving. Tew, 326 N.C. at 735, 392 S.E.2d at 605. This Court therefore recognized a

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consequential relationship between the defendant’s actions at the trial court and this

Court’s willingness to consider his appeal. See id. (“Consequently, the path has been

paved for us now to address the substantive issue presented.” (emphasis added)).

Tew’s extension of Reynolds’s holding makes sense. As this Court has held,

“there is no absolute right to have a guilty plea accepted.” State v. Collins, 300 N.C.

142, 148, 265 S.E.2d 172, 176 (1980). Accordingly, in virtually all criminal cases, the

defendant and the prosecutor are in an ongoing dialogue—that is, negotiations—

about potential plea agreements. These discussions often continue right up until the

very moment a plea is entered. And even assuming those talks do not culminate in a

plea agreement and the defendant instead pleads in an open plea, the prosecutor is

under no obligation to assent to that plea. Rather, a prosecutor may reject the

defendant’s unilateral plea. Therefore, any time a plea is entered and a prosecutor

signs a plea transcript, the concerns espoused in Reynolds are implicated. A

defendant should not be able to take the State by surprise and subsequently renege

on his guilty plea if he did not give fair notice of his intent to appeal a denied motion

to suppress.

The majority’s attempt to distinguish between negotiated pleas and open pleas

also falls flat. The majority artificially reduces Reynolds’s justifications and

oversimplifies the downstream effects of an open plea. Undeniably, there is no risk of

the State being duped or “trapped” in a bad bargain when the defendant does not

plead pursuant to a plea agreement. Reynolds, 298 N.C. at 397, 259 S.E.2d at 853.

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That, however, was not Reynolds’s sole concern. Rather, this Court also highlighted

that when a defendant chooses to plead guilty and “bypass the orderly procedure” of

the trial, “the State acquires a legitimate expectation of finality in the conviction

thereby obtained.” Id. (emphasis added) (quoting Lefkowitz, 420 U.S. at 289, 95 S. Ct.

at 889). This expectation of finality does not disappear simply because the State did

not negotiate the ultimate plea with the defendant.

Indeed, in many cases guilty pleas are entered on the verge of trial—after

weeks or months of trial preparation. And as this case well illustrates, a case can take

several years to wind its way through the appellate courts. During that time, many

factors can undermine the State’s readiness for trial—witnesses’ memories may fade;

witnesses may die or become unavailable; evidence may be accidentally lost or

destroyed; the prosecutor’s office may experience drastic turnover; et cetera. These

concerns are present in all pleas, whether entered under an plea agreement or not.

Accordingly, any time a defendant pleads guilty without giving notice of his intent to

appeal a denied motion to suppress, the State rightfully obtains a legitimate

expectation that the guilty plea is the end of that case.

And in many cases, guilty pleas also affect another person: the victim. If a

defendant admits his guilt without sharing his intent to appeal the conviction, the

victim and the victim’s family and friends are left to believe that the case is over. If

the defendant is then able to appeal the conviction despite giving no indication of his

plan to do so, the victim and the victim’s family and friends are robbed of their sense

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of closure. The lack of finality for victims and their family and friends is especially

troubling in cases in which the defendant admits his guilt.

For all these reasons, I would reaffirm Tew’s holding and reiterate this Court’s

bright-line rule: for all pleas, in order to preserve his statutory right to appeal, a

criminal defendant must give notice of his intent to appeal a denied motion to

suppress to the prosecutor and the trial court before he pleads guilty.3 That

requirement was not met here. Accordingly, I would reverse the decision of the Court

of Appeals. Because the majority unjustifiably departs from our long-standing

precedent and thereby alters criminal procedure in this State, I respectfully dissent.

Justice BERGER joins in this dissenting opinion.

3 Rather than overturning Tew, any error at the trial court would best be addressed

via an ineffective assistance of counsel claim. See generally State v. Thompson, 359 N.C. 77, 115, 604 S.E.2d 850, 876 (2004) (“[To prevail on an ineffective assistance of counsel claim,] [a] defendant must first show that his defense counsel’s performance was deficient and, second, that counsel’s deficient performance prejudiced his defense. Deficient performance may be established by showing that ‘counsel’s representation “fell below an objective standard of reasonableness.” ’ Generally, ‘to establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (citations omitted) (first citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), and then quoting Wiggins v. Smith, 539 U.S. 510, 521, 534, 123 S. Ct. 2527, 2535, 2542 (2003))).

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