State v. Jonas

2021-NCCOA-660

STATE OF NORTH CAROLINA v. DANIEL RAYMOND JONAS, Defendant.

No. COA20-712

Court of Appeals of North Carolina

December 7, 2021

Heard in the Court of Appeals 21 September 2021.

Appeal by Defendant from judgment entered 3 March 2020 by Judge Martin B. McGee in Cabarrus County No. 19 CRS 052709 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica Macari, for the State.

Sigler Law, PLLC, by Kerri L. Sigler, for defendant-appellant.

MURPHY, JUDGE.

¶ 1 When a defendant pleads guilty but does not plead guilty pursuant to a plea arrangement with the State, he is not required to give the State notice of his intent to appeal before plea negotiations are finalized to pursue his statutory right to appeal a final order denying a motion to suppress pursuant to N.C. G.S. § 15A-979(b). We have jurisdiction to hear the merits of Defendant's appeal of his Motion to Suppress.

¶ 2 A traffic stop made without reasonable articulable suspicion is unconstitutional as it violates the Fourth Amendment. Evidence illegally obtained as a result of an unconstitutional traffic stop must be suppressed. Reviewing the totality of the circumstances, law enforcement did not have reasonable articulable suspicion to stop Defendant and as such, the traffic stop was unconstitutional. The trial court erred by denying Defendant's Motion to Suppress.

BACKGROUND

¶ 3 On 28 June 2019, around 10:00 p.m., Officer Andrew Berry of the Concord Police Department was on routine patrol of Highway 49 South when he noticed a vehicle with three occupants pull out ahead of him from a trucking company parking lot. Due to the empty parking lot, the fact the gate was closed, and that there was only one light on in the parking lot, Officer Berry believed the business was closed which "kind of raised [his] suspicion on why the vehicle [was] pulling out of there." Officer Berry followed the vehicle and, when he was close enough behind it, he noticed the vehicle displayed a transporter plate, which he had "never seen . . . on a car." Officer Berry ran the plate through his computer system, and the plate came back as "not assigned to [a] vehicle."

¶ 4 Defendant Daniel Raymond Jonas was a passenger in the vehicle as well as its registered owner. "[B]ased on the fact that the vehicle was displaying [what Officer Berry believed to be] a fictitious tag, and [he was] attempting to determine what tag was supposed to be on the vehicle[, ]" Officer Berry initiated a traffic stop. During the stop, the Concord Police Department canine unit arrived and conducted an open-air sniff around the vehicle. Law enforcement located 0.1 grams of methamphetamine in a backpack in the trunk of the vehicle.

¶ 5 Defendant was subsequently indicted for possession of a Schedule II controlled substance. Prior to trial, Defendant filed a Motion to Suppress, requesting any evidence seized in connection with Officer Berry's traffic stop on 28 June 2019 be suppressed as fruit of the poisonous tree because Officer Berry lacked a reasonable articulable suspicion to stop the vehicle. After a hearing on the motion, the trial court entered an order denying Defendant's Motion to Suppress ("Order"), which contained the following findings of fact:

1.[Defendant] is charged with [p]ossession of a Schedule II [c]ontrolled [s]ubstance as a result of an interaction he had with Officer Andrew Berry of the Concord Police Department on [28 June 2019] in Concord, North Carolina.

2. That on [28 June 2019], at approximately 10:00 PM, Officer Berry was on duty within his jurisdiction driving on NC Highway 49 when a vehicle displaying a transporter registration plate pulled onto Highway 49 in front of him from [] a trucking company. Officer Berry believed the business was closed because the business's office was dark and there were no other vehicles in the office parking lot.

3. Even though [Defendant's] vehicle did not have a trailer attached to it, Officer Berry was aware of a recent trailer theft in the area.

4. Officer Berry ran the transporter registration plate and the plate came back as not assigned to a vehicle.

5. Officer Berry initiated a traffic stop on the vehicle.

6. The [trial court] is considering [] Defendant's motion to suppress filed on [31 October 2019].

The Order contained the following relevant conclusions of law:

3. The vehicle was exiting from a closed business with no lights visible to the [roadway].^[1]

4. [ N.C. G.S. §] 20-79.2 provides: "The Division of Motor Vehicles may issue a transporter plate authorizing the limited operation of a motor vehicle in the circumstances listed in this subsection. A person who received a transporter plate must have proof of financial responsibility that meets the requirements of Article 9A of this Chapter." The statute goes on to list ten (10) limited circumstances in which a person to whom a transporter plate and the vehicle bearing the plate may be operated.

5.The officer had reasonable articulable suspicion to stop the vehicle in question to ensure its compliance with N.C. G.S. § 20-79.2.

¶ 6 Following the denial of the Motion to Suppress, Defendant pled guilty^[2] to possession of a Schedule II controlled substance and received a suspended sentence of 6 to 17 months. After the trial court announced its judgment, through counsel, Defendant orally gave notice of appeal of the Order. In open court, following the trial court's acceptance of his guilty plea, counsel stated: "Your Honor, [Defendant] would enter notice of appeal. I filed written notice^[3] with regard to the motion to suppress. I just wanted to put it on the record now, and I'll be filing a notice." Defendant has also filed a petition for writ of certiorari with this Court, "should [we] find that trial counsel failed to give proper notice of appeal following the denial of [Defendant's] suppression motion as required by State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979)[.]" This matter was calendared before us on 21 September 2021; however, on 22 September 2021, we invited the parties to file supplemental briefs addressing

whether our Supreme Court's holding in State v. Reynolds'when a defendant intends to appeal from a suppression motion denial pursuant to N.C. G.S. [§] 15A-979(b), he must give notice of his intention to the prosecutor and the trial court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute'-applies in a situation where, as here, Defendant's plea of guilty is not 'part of a plea arrangement.' 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)[.]

We further cited to State v. Tew, 326 N.C. 732, 734-35, 392 S.E.2d 603, 604-05 (1990); State v. McBride, 120 N.C.App. 623, 625, 463 S.E.2d 403, 404 (1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996); Form AOC-CR-300 paragraph 20 (Rev. 5/18); Record page 17 at paragraph 20; and page 7 lines 4-10 of the plea transcript.

ANALYSIS

A. Appellate Jurisdiction

¶ 7 "In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of state statute." McBride, 120 N.C.App. at 624, 463 S.E.2d at 404. Generally, a defendant who pleads guilty does not have a right to appeal. See N.C. G.S. § 15A-1444(e) (2019). However, N.C. G.S. § 15A-979(b) provides an exception for defendants appealing a final order denying a motion to suppress. See N.C. G.S. § 15A-979(b) (2019) (emphasis added) ("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.").

¶ 8 In Reynolds, our Supreme Court interpreted this exception and held that "when a defendant intends to appeal from a suppression motion denial pursuant to [ N.C. G.S. §] 15A-979(b), he must give notice of his intention to the prosecutor and the [trial] court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute." Reynolds, 298 N.C. at 397, 259 S.E.2d at 853 (emphasis added). Our Supreme Court reasoned:

We do not believe that [ N.C. G.S. § 15A-979(b)] . . . contemplates a factual pattern . . . which would cause the State to be trapped into agreeing to a plea bargain . . . and then have the defendant contest that bargain.

As stated by the United States Supreme Court, "Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained."

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.

Id. (quoting Lefkowitz v. Newsome, 420 U.S. 283, 289, 43 L.Ed.2d 196, 202 (1975)).

¶ 9 The State argues Defendant did not comply with the Reynolds notice requirement because his "intent to appeal came after the entry of the plea" and "notice of the intention to appeal is required before the conclusion of plea negotiations." (Emphasis omitted). However, Defendant did not agree to plead guilty as part of a plea arrangement, as indicated on the Transcript of Plea, reproduced below:

(Image Omitted)

Defendant also testified during his plea colloquy that he did not plead guilty pursuant to a plea arrangement with the State:

THE COURT: Have you agreed to plead guilty as part of a plea arrangement?

[DEFENDANT]: Yes, sir. Oh. No, sir.

THE COURT: No. There's not one listed here. As Defendant did not plead guilty pursuant to a plea arrangement with the

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