IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-295
Filed: 20 October 2015
Mecklenburg County, No. 11 CRS 228888
STATE OF NORTH CAROLINA
v.
THOMAS SCOTT MILLER, Defendant.
Appeal by defendant from orders entered 13 August 2014 by Judge H. William
Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals
23 September 2015.
Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney
General, for the State.
Arnold & Smith, PLLC, by Kyle Frost, for defendant-appellant.
ZACHARY, Judge.
Where unchallenged findings of fact supported the trial court’s conclusions of
law, the trial court did not err in denying defendant’s motion to suppress. Where
defendant pleaded guilty, defendant does not have a right of appeal from the trial
court’s denial of his motion to dismiss. Where defendant has not alleged an untimely
appeal, an interlocutory appeal, or review of a motion for appropriate relief, this
Court may not issue a writ of certiorari.
I. Factual and Procedural Background
STATE V. MILLER
Opinion of the Court
On 22 June 2011, Officer Anthony Watkins of the Charlotte Mecklenburg
Police Department observed Thomas Scott Miller (defendant) driving south on Park
Road. Officer Watkins witnessed defendant hit the center median with his vehicle,
fail to stop at a red light at an intersection, and travel 50 mph in a 35 mph zone.
Officer Watkins made a U-turn to pursue defendant. While Officer Watkins was in
pursuit of defendant, but before a traffic stop was commenced, defendant neglected
to stop at a second red light. After this additional failure to stop, Officer Watkins
activated his blue lights and initiated a traffic stop.
Officer Watkins found defendant in the driver’s seat, and requested his license
and registration. Upon detecting a strong odor of alcohol on defendant’s breath, and
noticing that defendant had red, glassy eyes, Officer Watkins asked defendant to exit
the car and perform a series of field sobriety tests, as well as two roadside preliminary
breath tests. Defendant admitted to consuming alcohol. Officer Watkins then
arrested defendant for impaired driving.
Defendant telephoned his mother to come and observe the intoxilizer test at
the station, but she did not arrive within the requisite period of time and thus could
not observe the test. Defendant was placed on $2,500 secured bond.
Defendant was charged with driving while impaired. On 16 April 2014,
defendant moved to suppress all evidence resulting from his arrest, alleging that it
was an unconstitutional seizure. That same day, defendant moved to dismiss the
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Opinion of the Court
charge, contending that he was denied his right to communicate with counsel and
friends and to have them observe him. Defendant filed an amended motion to dismiss
on 30 July 2014. On 13 August 2014, the trial court denied these motions. On 13
October 2014, defendant pleaded guilty to driving while impaired, and preserved his
right to appeal the denial of his motions.
From the denial of his motions, defendant appeals.
II. Motion to Suppress
In his first argument, defendant contends that the trial court erred in denying
his motion to suppress all evidence resulting from his arrest. We disagree.
A. Standard of Review
Appellate review of a trial court’s denial of a motion to suppress is “strictly
limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
“The trial court’s conclusions of law . . . are fully reviewable on appeal.” State v.
Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
B. Analysis
At trial, the State elicited testimony from Officer Watkins concerning the
events of the date in question. After direct, cross, and redirect examination of Officer
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STATE V. MILLER
Opinion of the Court
Watkins, the State rested its case. Defendant then moved to suppress the evidence,
alleging that the stop was an unlawful seizure without probable cause or reasonable
suspicion.
On appeal from the trial court’s order denying defendant’s motion to suppress,
defendant contends that the trial court “made numerous Findings of Facts [sic] which
were not supported by competent evidence.” Specifically, defendant challenges the
trial court’s Findings of Fact numbers 3, 4, 8, 18, and 21. Defendant does not dispute
any other of the trial court’s findings. In its order, the trial court made the following
Findings of Fact, among others, that are not contested by defendant on appeal:
5. While in pursuit, but before a traffic stop was
initiated, the Defendant failed to stop at a red light at Park
Road and Seneca Place.
...
9. After smelling a strong odor of alcohol, the officer
asked the Defendant to exit his vehicle to determine the
origin of the odor of alcohol.
10. The officer determined that the odor of alcohol was
coming from the Defendant's breath, and saw that the
Defendant had red glassy eyes.
...
14. The Defendant exhibited 6 of 6 clues on the
Horizontal Gaze Nystagmus Test.
15. During the Walk and Turn test, the Defendant
started too soon, stepped offline multiple times and held
his arms up away from his body for balance throughout the
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STATE V. MILLER
Opinion of the Court
test.
16. During the One Leg Stand, the Defendant counted
improperly, bent his leg, and did not follow the officer's
directions.
17. That the Defendant admitted to consuming “a beer”
prior to driving and was coming from “Bankers,” a local
bar.
...
19. The officer formed the opinion that the Defendant
was appreciably impaired.
“Where no exception is taken to a finding of fact by the trial court, the finding
is presumed to be supported by competent evidence and is binding on appeal.” State
v. White, ___ N.C. App. ___, ___, 753 S.E.2d 698, 701 (citations and quotations
omitted), cert. denied, review denied, 367 N.C. 785, 766 S.E.2d 627 (2014).
Accordingly, these findings, unchallenged by defendant on appeal, are binding upon
this Court.
Even assuming arguendo that there was no evidence to support the challenged
findings, we hold that these unchallenged findings are fully sufficient to support the
trial court’s conclusion that “[t]here was a reasonable and articulable suspicion to
stop the Defendant and probable cause for his arrest.” Our Supreme Court has
previously held that where an officer witnessed a defendant’s traffic violation, this
personal observation created reasonable suspicion for a traffic stop. See State v.
Styles, 362 N.C. 412, 417, 665 S.E.2d 438, 441 (2008). We have further held that the
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STATE V. MILLER
Opinion of the Court
testimony of an officer regarding his observations of defendant, and the opinion
derived therefrom, is sufficient evidence of defendant’s impairment, provided that the
opinion was not based solely on the odor of alcohol. See State v. Mark, 154 N.C. App.
341, 346, 571 S.E.2d 867, 871 (2002) aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693
(2003). In the instant case, Officer Watkins personally watched defendant drive
through a red light, creating reasonable suspicion to support a traffic stop. Upon
stopping defendant’s vehicle and administering field sobriety tests, Officer Watkins
formed an opinion of defendant’s sobriety, and testified to that effect. These facts
were all found by the trial court, and are not challenged on appeal; they support the
stop and arrest.
This argument is without merit.
III. Motion to Dismiss
In his second argument, defendant contends that the trial court erred in
denying his motion to dismiss. Because defendant pleaded guilty at trial, we are
unable to review this argument, and dismiss it without prejudice to defendant’s right
to file a motion for appropriate relief with the trial court.
A. Standard of Review
It is well established that under North Carolina law “a defendant's right to
appeal in a criminal proceeding is purely a creation of state statute. Furthermore,
there is no federal constitutional right obligating courts to hear appeals in criminal
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Opinion of the Court
proceedings.” State v. Jamerson, 161 N.C. App. 527, 528, 588 S.E.2d 545, 546 (2003)
(quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002)).
Upon a guilty plea, the defendant’s right of appeal is restricted to the following
issues:
1. Whether the sentence “is supported by the
evidence.” This issue is appealable only if his minimum
term of imprisonment does not fall within the presumptive
range. N.C. Gen. Stat. § 15A-1444(a1) (2001);
2. Whether the sentence “[r]esults from an incorrect
finding of the defendant's prior record level under G.S.
15A-1340.14 or the defendant's prior conviction level under
G.S. 15A-1340.21.” N.C. Gen. Stat. § 15A-1444(a2)(1)
(2001);
3. Whether the sentence “[c]ontains a type of sentence
disposition that is not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant's class of offense and
prior record or conviction level.” N.C. Gen. Stat. § 15A-
1444(a2)(2) (2001);
4. Whether the sentence “[c]ontains a term of
imprisonment that is for a duration not authorized by G.S.
15A-1340.17 or G.S. 15A-1340.23 for the defendant's class
of offense and prior record or conviction level.” N.C. Gen.
Stat. § 15A-1444(a2)(3) (2001);
5. Whether the trial court improperly denied
defendant's motion to suppress. N.C. Gen. Stat. §§ 15A-
979(b)(2001), 15A-1444(e) (2001);
6. Whether the trial court improperly denied
defendant's motion to withdraw his guilty plea. N.C. Gen.
Stat. § 15A-1444(e).
Id. at 528-29, 588 S.E.2d at 546-47.
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STATE V. MILLER
Opinion of the Court
If a defendant has no appeal as of right, a defendant may nevertheless petition
this Court for review by writ of certiorari pursuant to the provisions of N.C. Gen. Stat.
§ 15A-1444(e). A petition for writ of certiorari may be granted where:
(1) defendant lost his right to appeal by failing to take
timely action; (2) the appeal is interlocutory; or (3) to
review a trial court's denial of a motion for appropriate
relief. N.C. R. App. P. 21(a)(1) (2003). In considering
appellate Rule 21 and N.C. Gen. Stat. § 15A-1444, this
Court has reasoned that since the appellate rules prevail
over conflicting statutes, we are without authority to issue
a writ of certiorari except as provided in Rule 21. State v.
Nance, 155 N.C. App. 773, 574 S.E.2d 692 (2003); Pimental,
153 N.C. App. at 73-74, 568 S.E.2d at 870; State v. Dickson,
151 N.C. App. 136, 564 S.E.2d 640 (2002).
Id. at 529, 588 S.E.2d at 547.
B. Analysis
After the State rested its case, defendant moved to dismiss the charge, alleging
that he was denied his constitutional right to communicate with counsel and friends
and gather evidence on his behalf by allowing friends or family to observe him and
form opinions as to his condition at the time. On appeal, defendant contends that the
trial court lacked an evidentiary basis for several of its findings and that the denial
of his right to gather evidence resulted in substantial prejudice to him.
In that defendant pleaded guilty, his right of appeal is limited by statute. As
defendant’s motion to dismiss does not fall within any of the six categories listed in
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STATE V. MILLER
Opinion of the Court
N.C. Gen. Stat. § 15A-1444 and quoted above, defendant does not have an appeal as
of right from the trial court’s denial of defendant’s motion.
Furthermore, there are no grounds for certiorari to issue. Because defendant
does not allege a lack of timely action, the appeal is not interlocutory, and the appeal
does not concern a denial of a motion for appropriate relief, as required by Appellate
Rule 21 and N.C. Gen. Stat. § 15A-1444, this Court is unable to issue a writ of
certiorari. As such, we are unable to hear this argument, and must dismiss it.
Although we dismiss this argument, we do so without prejudice to defendant’s
pursuit of a motion for appropriate relief, pursuant to N.C. Gen. Stat. § 15A-1411 et
seq., before the trial court.
AFFIRMED IN PART, DISMISSED IN PART.
Judges STEPHENS and McCULLOUGH concur.
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