An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
Filed: 01 October 2002
STATE OF NORTH CAROLINA
Nos. 98 CRS 872
98 CRS 873
98 CRS 874
98 CRS 1132
98 CRS 1133
GEORGE WILLIAM DURAND
Appeal by defendant from judgment entered 30 July 2001 by
Judge B. Craig Ellis in Scotland County Superior Court.
the Court of Appeals 30 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Stewart L. Johnson, for the State.
Michael E. Casterline for defendant-appellant.
Defendant, George William Durand, moved to suppress physical
evidence obtained as a result of a warrantless search of his
The trial court denied the motion on 18 April 1999.
Defendant then pled guilty on 30 July 2001 to one count of
trafficking in marijuana pursuant to a plea agreement.
Defendant contends the trial court erred by denying his motion
-2to suppress evidence obtained via a warrantless third party consent
We do not reach that issue, however.
Defendant failed to
present a record on appeal from which we can determine that he
complied with established case and statutory law mandating that,
following denial of a motion to suppress, he give notice of his
intent to appeal to the trial court and prosecution before entry of
a guilty plea.
“An 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. Gen. Stat. § 15A-
conditional and 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
Under section 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.” Id. at 625,
463 S.E.2d at 404 (emphasis added).
“Notice of intent to appeal
prior to plea bargain finalization is a rule designed to promote a
‘fair posture of appeal from a guilty plea.’”
Id. at 625, 463
S.E.2d at 405 (quoting State v. 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)(emphasis original).
After a careful review of the entire record, we note the
absence of any notice by defendant of his intent to appeal based on
-3the trial court's denial of his motion to suppress.
In his brief,
defendant claims to have reserved this right in the following three
ways: (1) by filing a “Request and Order for Authorizing Transcript
of Confidential Proceeding” to “review for consideration of an
appeal” dated 20 July 1999; (2) by renewing his motion to suppress
at the beginning of defendant’s plea hearing held in July of 2001;
and (3) by defense counsel stating at the end of defendant’s plea
hearing that defendant “indicated that in the pursuant appeal –
that is, the suppression hearing – that unfortunately, he no longer
has private counsel and would like the Court to consider appointing
appellant defense for him.”
None of these instances, however, show defendant’s intent to
appeal from the denial of his motion to suppress “during plea
Defendant’s request for the transcript was made a
year before defendant pled guilty.
While defendant’s renewal of
his motion to suppress shows defendant’s dissatisfaction with the
trial court’s ruling, it does not show defendant’s intent to appeal
from the ruling. Finally, defense counsel’s mention that defendant
needed appellate counsel appointed was made after entry of the
As we stated in State v. Brown, 142 N.C. App. 491, 543 S.E.2d
“This Court . . . is bound by the record as
certified and can judicially know only what
appears of record.” “It is the appellant’s
duty and responsibility to see that the record
is in proper form and complete.” Here, from
the record presented, we cannot determine that
concerning appeals made subsequent to a plea
Id. at 492-493, 543 S.E.2d at 193 (citations omitted).
the record before us, we cannot say that defendant complied with
Judges WALKER and BIGGS concur.
Report per Rule 30(e).