An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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).