IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-276
Filed: 17 November 2015
Davidson County, No. 11 CRS 053830
STATE OF NORTH CAROLINA,
v.
JOSHUA ALEXANDER HUTTON
Appeal by defendant from Judgment entered 7 July 2014 by Judge Joseph N.
Crosswhite in Davidson County Superior Court. Heard in the Court of Appeals 21
September 2015.
Attorney General Roy Cooper, by Assistant Attorney General John W.
Congleton, for the State.
Paul F. Herzog for defendant.
ELMORE, Judge.
Joshua Hutton (defendant) appeals from his no contest plea to impaired
driving. The State filed a motion to dismiss the appeal and defendant filed a petition
for writ of certiorari. After careful consideration, we deny defendant’s petition for
writ of certiorari and we grant the State’s motion to dismiss the appeal.
I. Background
Defendant was charged with impaired driving under N.C. Gen. Stat. § 20-138.1
on 11 June 2011. Defendant filed a motion to suppress the results of the blood alcohol
STATE V. HUTTON
Opinion of the Court
content reading in Davidson County District Court on 10 May 2012. The Honorable
Jimmy L. Myers entered an order (preliminary determination) on 1 March 2013
concluding that the results of the test would be suppressed. The State gave oral
notice of appeal to superior court that same day and filed a written notice of appeal
on 7 March 2013 to Davidson County Superior Court. The notice of appeal stated
that it was based on the preliminary indication suppressing the intoxilyzer/blood
results.
The State’s appeal was heard on 16 May 2013 in Davidson County Superior
Court. The court heard testimony from Trooper James Jackson, Van Williamson, and
defendant. The Honorable Kevin M. Bridges entered an order on 30 July 2013
reversing the preliminary determination and remanding the matter to the district
court for further proceedings. Nothing in the record indicates that the district court,
on remand, entered a final order denying the motion to suppress. Defendant admits
in his petition for writ of certiorari that neither he nor the State sought imposition of
a final order upon remand to district court.
Defendant subsequently entered a no contest plea to the impaired driving
charge on 3 January 2014 in Davidson County District Court, and the Honorable
Mary F. Covington sentenced defendant to a term of sixty days’ imprisonment. The
order of commitment stated, “defendant gives notice of appeal from the judgment of
the District Court to the Superior Court.”
-2-
STATE V. HUTTON
Opinion of the Court
On appeal, defendant again entered a no contest plea to the impaired driving
charge on 7 July 2014 in Davidson County Superior Court, and the Honorable Joseph
N. Crosswhite suspended defendant’s sentence and placed defendant on
unsupervised probation for twelve months. The order of commitment stated,
“defendant gives notice of appeal from the judgment of the Superior Court to the
appellate division.” The State filed a motion to dismiss the appeal with this Court on
29 June 2015. Defendant filed a petition for writ of certiorari on 13 July 2015.
II. Analysis
“In North Carolina, 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 proceedings.” State v. Pimental,
153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002) (citing Abney v. United States, 431
U.S. 651, 656, 52 L. Ed. 2d 651, 657 (1977)) (internal citations omitted).
A defendant who has entered a plea of guilty or no contest
to a felony or misdemeanor in superior court is entitled to
appeal as a matter of right the issue of whether the
sentence imposed:
(1) Results 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;
(2) Contains 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; or
-3-
STATE V. HUTTON
Opinion of the Court
(3) Contains 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)(1)–(3) (2013). “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-979(b)
(2013). For the reasons discussed below, because the district court did not enter an
order “finally denying” the motion to suppress, we are unable to review the issues
presented in defendant’s appeal.
A. The State’s Motion to Dismiss
In the State’s motion to dismiss, it argues that defendant has no right to appeal
as defendant has not raised an appealable issue allowed by statute for this Court to
review. The State contends that N.C. Gen. Stat. § 15A-1444 and N.C. Gen. Stat. §
15A-979(b), cited by defendant as authority for his appeal, do not provide a right of
appeal in this case. Defendant argues that we should deny the State’s motion to
dismiss because he “took the necessary steps to preserve his right to appellate review
of the order when he entered his no contest plea in superior court.” Defendant
contends that “[t]his case involves a straightforward application of this Court’s
statutory interpretation in State v. Palmer, 197 N.C. App. 201, 204–06, 676 S.E.2d
559, 561–62 (2009)[.]”
The procedures for implied-consent offenses are provided for in Chapter 20 of
-4-
STATE V. HUTTON
Opinion of the Court
our General Statutes. Specifically, section 20-38.6(f) provides,
The judge shall set forth in writing the findings of fact and
conclusions of law and preliminarily indicate whether the
motion should be granted or denied. If the judge
preliminarily indicates the motion should be granted, the
judge shall not enter a final judgment on the motion until
after the State has appealed to superior court or has
indicated it does not intend to appeal.
N.C. Gen. Stat. § 20-38.6(f) (2013) (emphasis added).
Section 20-38.7 states,
(a) The State may appeal to superior court any district
court preliminary determination granting a motion to
suppress or dismiss. If there is a dispute about the findings
of fact, the superior court shall not be bound by the findings
of the district court but shall determine the matter de novo.
Any further appeal shall be governed by Article 90 of
Chapter 15A of the General Statutes.
(b) The defendant may not appeal a denial of a pretrial
motion to suppress or to dismiss but may appeal upon
conviction as provided by law.
N.C. Gen. Stat. § 20-38.7 (2013).
In State v. Palmer, the defendant was charged with willfully operating a motor
vehicle while subject to an impairing substance, and he filed a motion to suppress
“[a]ny evidence . . . obtained pursuant to the interaction[,]” which the district court
granted in a preliminary order. 197 N.C. App. at 202, 676 S.E.2d at 560. The State
gave notice of appeal in open court and filed a notice of appeal to superior court, which
stated, “[t]he State gave oral notice of appeal in open court after the hearing,” and
-5-
STATE V. HUTTON
Opinion of the Court
“further gives written notice of appeal [to the superior court] through this document.”
Id. The defendant challenged the sufficiency of the State’s appeal at the superior
court hearing, contending that the State did not comply with the statutory
requirements authorizing an appeal. Id. at 202–03, 676 S.E.2d at 560. The superior
court dismissed the State’s appeal “because [t]he State ha[d] failed to properly file a
motion appealing the indication of the District Court to suppress the evidence in this
case as required by [section] 15A-951, [section] 20-38.7 and [section] 15A-1432.” Id.
at 203, 676 S.E.2d at 560. The State attempted to appeal to this Court from the
superior court’s order. Id. at 203, 676 S.E.2d at 561.
We began our analysis by reviewing State v. Fowler, 197 N.C. App. 1, 676
S.E.2d 523 (2009), where
this Court determined that, after the superior court
considers an appeal by the State pursuant to N.C.G.S. § 20-
38.7(a), “the superior court must then enter an order
remanding the matter to the district court with
instructions to finally grant or deny the defendant’s
pretrial motion” made in accordance with N.C.G.S. § 20-
38.6(a), because “the plain language of N.C.G.S. § 20-
38.6(f) indicates that the General Assembly intended the
district court should enter the final judgment on [such] a
. . . pretrial motion.”
Palmer, 197 N.C. App. at 203, 676 S.E.2d at 561 (citing Fowler, 197 N.C. App. at 11–
12, 676 S.E.2d at 535). We noted that the Fowler Court “further concluded that the
State [did] not have a present statutory right of appeal to the Appellate Division from
a superior court’s interlocutory order which may have the same ‘effect’ of a final order
-6-
STATE V. HUTTON
Opinion of the Court
but requires further action for finality.” Id. (citing Fowler, 197 N.C. App. at 6, 676
S.E.2d at 531) (internal quotation marks omitted). The Palmer Court, relying on the
above authority, concluded that “the State has no statutory right of appeal from a
superior court’s interlocutory order remanding a matter to a district court for entry
of a final order granting a defendant’s pretrial motion to suppress[.]” Id. at 204, 676
S.E.2d at 561.
In this case, the State argues, and we agree, that if the superior court’s ruling
is not a final order for purposes of the State’s appeal, it is likewise not a final order
for purposes of defendant’s appeal.1 Because the district court did not enter a final
judgment pursuant to section 20-38.6(f) denying the motion to suppress, and based
on this Court’s decision in State v. Palmer, defendant cannot seek review of the ruling
on his motion to suppress. See N.C. Gen. Stat. § 15A-979(b) (2013) (“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.”).
B. Defendant’s Petition for Writ of Certiorari
Defendant alternatively requests that we review the superior court’s 30 July
2013 Order, which reversed the district court’s 1 March 2013 Order, because all
1 See also State v. Osterhoudt, 222 N.C. App. 620, 624, 731 S.E.2d 454, 457 (2012) (noting “that
the State is correct in its concession that it has no statutory right of appeal from a superior court order
entered pursuant to N.C. Gen. Stat. § 20-38.7”); State v. Rackley, 200 N.C. App. 433, 434, 684 S.E.2d
475, 476 (2009) (dismissing the State’s appeal from the superior court’s order pursuant to N.C. Gen.
Stat. § 20-38.7(a) as interlocutory).
-7-
STATE V. HUTTON
Opinion of the Court
parties intended that defendant obtain full appellate review of the 30 July 2013
Order. “Where a defendant does not have an appeal of right, our statute provides for
defendant to seek appellate review by a petition for writ of certiorari.” State v.
Jamerson, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547 (2003) (citing N.C. Gen. Stat.
§ 15A-1444(e)). Rule 21 of the North Carolina Rules of Appellate Procedure
authorizes this Court to issue a writ of certiorari in the following situations: (1) the
right to prosecute an appeal has been lost by failure to take timely action; (2) when
no right of appeal from an interlocutory order exists; or (3) to review a trial court’s
ruling on a motion for appropriate relief. N.C.R. App. P. 21(a)(1) (2009).
Here, defendant asks that we vacate his no contest plea, set aside the
judgment, and remand the matter to superior court so that it may re-review the
district court’s preliminary determination on his motion to suppress. Although this
Court has authority to grant certiorari, we decline to do so in this case.
III. Conclusion
In sum, we cannot review by right and we decline to review by certiorari the
trial court’s order. Therefore, we grant the State’s motion to dismiss.
DISMISSED.
Chief Judge McGEE and Judge DAVIS concur.
-8-