              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA14-1310-2

                                Filed: 17 May 2016

Mecklenburg County, No. 12 CRS 246557, 59

STATE OF NORTH CAROLINA

             v.

BRENT TYLER MILLER


      Appeal by the State from order entered 2 June 2014 by Judge Linwood Foust

in Mecklenburg County Superior Court. The case was originally heard before this

Court on 22 April 2015. State v. Miller, __ N.C. App. __, 773 S.E.2d 574 (2015). Upon

remand from the Supreme Court of North Carolina, State v. Miller, __N.C. __, __

S.E.2d __ (2016).


      Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz,
      for the State.

      Tin, Fulton, Walker, & Owen, PLLC, by Noell P. Tin, for defendant.

      PER CURIAM.

      Upon remand from the Supreme Court of North Carolina to address the

remaining issues, State v. Miller, __ N.C. __, __ S.E.2d __ (2016). The State appeals

from the superior court’s order, which denied the State a hearing de novo under N.C.

Gen. Stat. § 20-38.7(a) from the district court’s “preliminary determination” that

Defendant’s motion to suppress should be granted.

                                   I. Background
                                   STATE V. MILLER

                                   Opinion of the Court



      The procedural history of this case is set forth in this Court’s prior opinion.

State v. Miller,   __ N.C. App. __, 773 S.E.2d 574, 2015 N.C. App. LEXIS 398

(unpublished).

      This Court filed a unanimous, unpublished opinion on 19 May 2015, which

dismissed the State’s appeal for lack of appellate jurisdiction. We also did not have

jurisdiction to review the State’s issue on appeal by writ of certiorari. The record on

appeal before us at that time failed to show the court’s order the State had

purportedly appealed from was “entered” pursuant to N.C. Gen. Stat. § 15A-1432(e)

(2015) (“If the superior court finds that the order of the district court was correct, it

must enter an order affirming the judgment of the district court. The State may

appeal the order of the superior court to the appellate division upon certificate by the

district attorney to the judge who affirmed the judgment that the appeal is not taken

for the purpose of delay.” (emphasis supplied)).

      This Court’s filed opinion, upon which the mandate issued on 8 June 2015,

dismissed the State’s appeal for lack of jurisdiction. See N.C. R. App. P. 32(b). The

State failed to meet its burden, as appellant, to show in the record on appeal that the

order appealed from had been “entered.”

             Entering a judgment or an order is a ministerial act which
             consists in spreading it upon the record. . . . [A] judgment
             or an order is entered under [Rule 4(a)] when the clerk of
             court records or files the judge’s decision regarding the
             judgment or order.



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                                   Opinion of the Court



State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012) (citation and quotation

marks omitted) (emphasis in original).

      The record before this Court, when the appeal was heard, failed to meet the

State’s jurisdictional burden to show the order the State purportedly appealed from

had been “entered” in accordance with the N.C. Gen. Stat. § 15A-1432(e) and rule set

forth in Oates. The Supreme Court entered an order allowing an amendment of the

record to add the minutes of the relevant superior court session, to allow the appellant

to show the Clerk of Superior Court of Mecklenburg County had, in fact, “entered”

the order appealed from by recording or filing the judge’s decision in accordance with

the statute and Oates. See Order Amending Record on Appeal 17 Mar. 2016; Miller,

__ N.C. at __, __ S.E.2d at __; Oates, 366 N.C. at 266, 732 S.E.2d at 573.

      After amending the record on appeal to reflect the clerk’s entry of the court’s

order, the Supreme Court determined the order appealed from had been properly

“entered” to provide jurisdiction in the Appellate Division, and remanded to this

Court for consideration of the remaining issues asserted in the State’s appeal.

      “It is well established that the appellant bears the burden of showing to this

Court that the appeal is proper.” Johnson v. Lucas, 168 N.C. App. 515, 518, 608

S.E.2d 336, 338, affirmed, 360 N.C. 53, 619 S.E.2d 502 (2005). Appellant’s failure to

initially demonstrate and establish appellate jurisdiction in this Court unnecessarily

expended scarce appellate judicial resources. “‘It is . . . not the duty of this Court to



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                                   Opinion of the Court



construct arguments for or find support for appellant’s right to appeal.’” Id. (quoting

Thompson v. Norfolk & Southern Ry., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401

(2000)).

           II. State’s Notice of Appeal to the North Carolina Court of Appeals

      Defendant argues the State’s appeal should be dismissed because the State’s

notice of appeal to this Court is insufficient to confer jurisdiction. This separate

argument for dismissal of the State’s appeal has not been addressed by either this

Court or by the Supreme Court. Prior to the original hearing date of this case, the

State also filed a petition for writ of certiorari, to seek review of the superior court’s

15 November 2013 order, in the event this Court determines the State had failed to

file a proper notice of appeal to this Court.

      In a case involving an implied consent offense, “[t]he State may appeal to

superior court any district court preliminary determination granting a motion to

suppress or dismiss.” N.C. Gen. Stat. § 20-38.7(a) (2015). After it considers the State’s

appeal from the district court’s “preliminary determination”, 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.” State v. Fowler, 197 N.C. App.

1, 11, 676 S.E.2d 523, 535 (2009), disc. review denied, 364 N.C. 129, 696 S.E.2d 695

(2010).




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                                   Opinion of the Court



      The State does not have any right to directly appeal to the appellate division

from the district court’s final order granting a defendant’s pretrial motion to suppress

evidence. Id. at 29, 676 S.E.2d at 546. The State must again appeal “to the superior

court from [the] district court’s final dismissal of criminal charges against [the]

defendant.” Id. (emphasis in original).      Only then may the State appeal to the

appellate division from the superior court’s entered order, affirming the district

court’s final order of dismissal under N.C. Gen. Stat. § 15A-1432(e). Id. at 7, 676

S.E.2d at 532 (“[N.C. Gen. Stat.] § 15A-1432(a)(1) gives the State a statutory right of

appeal to superior court from a district court’s order dismissing criminal charges

against a defendant, and [N.C. Gen. Stat.] § 15A-1432(e) gives the State a statutory

right of appeal to this Court from a superior court’s order affirming a district court’s

dismissal.”).

      Here, the State appealed to the superior court from the district court’s

preliminary determination granting Defendant’s motion to suppress. N.C. Gen. Stat.

§ 20-38.7(a). By order entered 15 November 2013, the superior court determined the

State’s general notice of appeal, without more, was insufficient and declined to grant

the State a de novo hearing.

      The superior court remanded the case to the district court for entry of a final

order. The superior court entered an oral order “affirming” the final order of the

district court on 2 June 2014, which provided a statutory avenue for the State’s appeal



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                                   Opinion of the Court



to this Court under N.C. Gen. Stat. § 15A-1432(e). The State’s “notice of appeal” to

this Court states as follows:

                     NOW COMES the State of North Carolina, by and
               through the undersigned Assistant District Attorney,
               pursuant to N.C.G.S. § 15A-1445(a)(1), and gives notice of
               appeal from the Superior Court of Mecklenburg County to
               the North Carolina Court of Appeals from the Order of the
               Honorable Linwood O. Foust, Superior Court Judge
               presiding, issued June 2, 2014, in which the Court granted
               the defendant’s motion to suppress pursuant to N.C.G.S. §
               15A-954(a)(1) and N.C.G.S. § 15A-954(a)(8).

      In its sole argument on appeal, the State argues the superior court erred by

denying the State a de novo evidentiary hearing from the district court’s order

granting Defendant’s motion to suppress. The order to which the State assigns error

was issued by the superior court on 15 November 2013, and which dismissed the

State’s appeal and denied the State’s request for a de novo hearing. This order is not

mentioned nor addressed in the State’s notice of appeal to this Court.

      Defendant argues this Court is without jurisdiction to address the State’s

appeal, because the State has appealed from the incorrect order. Defendant asserts

the express language of the State’s notice of appeal shows the State has appealed

from the superior court’s order issued on 2 June 2014, which was entered at the

State’s request to affirm the district court’s final order granting Defendant’s motion

to suppress.




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                                   Opinion of the Court



      “As a general rule an appeal will not lie until there is a final determination of

the whole case.” State v. Newman, 186 N.C. App. 382, 384, 651 S.E.2d 584, 586 (2007),

disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008) (citation omitted). The 15

November 2013 order of the superior court was not a final order and is interlocutory

under the current statutory scheme. For the State to appeal from the 15 November

2013 order, the case was required to be remanded to the district court for entry of a

final order of its “preliminary determination” to suppress and subsequently be

appealed to the superior court to enter an order affirming the district court’s final

order. Fowler, 197 N.C. App. at 11, 676 S.E.2d at 535; N.C. Gen. Stat. § 15A-1432(a)

and (e).

      The district court’s final order, affirmed by the superior court on 2 June 2014,

stated the superior court’s denial of a hearing de novo was the basis for entry of the

order. Here, notice of appeal from the superior court’s order entered 2 June 2014,

constituted notice of appeal to the previous proceedings. The State’s failure to cite to

the 15 November 2013 order does not divest this Court of jurisdiction to hear the

issues raised by the State’s appeal.

      Defendant also argues the State’s notice of appeal to this Court cites an

incorrect statute to support its contention that the State has a right to seek review in

the appellate division. The statute cited in the State’s notice of appeal to this Court,

N.C. Gen. Stat. § 15A-1445(a)(1), provides the State may appeal from the superior



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                                    Opinion of the Court



court to the appellate division “[w]hen there has been a decision or judgment

dismissing criminal charges as to one or more counts.” N.C. Gen. Stat. §15A-

1445(a)(1) (2015).     Defendant contends N.C. Gen. Stat. § 15A-1445(a)(1) is

inapplicable to his appeal. See State v. Bryan, 230 N.C. App. 324, 327, 749 S.E.2d

900, 903 (2013) (“In contrast [to N.C. Gen. Stat. § 15A-1432(e)], the legislative history

of [N.C. Gen. Stat.] § 15A-1445(a)(1) indicates that this statute is applicable to final

orders issued by a superior court acting in its original jurisdiction. . . . This statutory

application is supported by our case law, as the State receives an automatic appeal

as of right only from decisions by a superior court acting in its normal capacity.”

(emphasis supplied) (internal citations omitted)), disc. review denied, 367 N.C. 330,

755 S.E.2d 615 (2014).

      While we agree that N.C. Gen. Stat. § 15A-1432(e), and not § 15A-1445(a)(1),

is the statute that confers jurisdiction upon this Court to hear the issue raised by the

State’s appeal, Defendant’s motion to dismiss does not address the State’s oral notice

of appeal. The State entered both an oral and written notice of appeal. Pursuant to

Rule 4 of the North Carolina Rules of Appellate Procedure, “any party entitled by law

to appeal from a judgment or order of a superior or district court rendered in a

criminal action may take appeal by . . . giving oral notice of appeal at trial.” N.C. R.

App. P. 4 (a)(1) (emphasis supplied).




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                                    STATE V. MILLER

                                   Opinion of the Court



        In Oates, the Supreme Court stated Appellate Rule 4(a) “permits oral notice of

appeal, but only if given at the time of trial or, as here, of the pretrial hearing.” 366

N.C. at 268, 732 S.E.2d at 574 (emphasis supplied). Here, the superior court orally

affirmed the final order of the district court pursuant to the State’s request. The

prosecutor orally entered notice of appeal to this Court immediately thereafter.

        Following the State’s oral notice of appeal, the written notice was superfluous.

The State’s appeal is properly before this Court pursuant to Rule 4. It is unnecessary

to rule upon the State’s petition for writ of certiorari. That petition is dismissed as

moot.

                           III. Denial of a Hearing De Novo

        The State argues the superior court erred by denying the State a hearing de

novo from the district court’s “preliminary determination” that Defendant’s motion to

suppress should be granted.

        Pursuant to N.C. Gen. Stat. § 20-38.7,

              [t]he 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.




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                                   Opinion of the Court



N.C. Gen. Stat. § 20-38.7(a) (emphasis supplied). The plain language of the statute

requires the superior court to determine the matter “de novo” only “if there is a

dispute about the findings of fact.” Id.

      Here, the district court judge made six findings of fact based upon the officer’s

testimony, and pertaining to the officer’s stop of Defendant’s vehicle. The State’s

notice of appeal to the superior court states as follows:

             NOW COMES the undersigned Assistant District Attorney
             for the Twenty-Sixth Prosecutorial District and
             respectfully enters notice of appeal pursuant to N.C.G.S. §§
             20-38.7 in the above captioned case and shows the Court
             the following:

             1. On June 3, 2013, Defendant through his attorney made
             a pre-trial motion to suppress alleging a lack of reasonable
             suspicion to stop the Defendant.

             2. The Honorable Kim Best-Staton, District Court Judge
             presiding, indicated in open court on June 3, 2013 that she
             would take the matter under advisement after hearing
             arguments from defense counsel and the State.

             3. On June 7, 2013, the Honorable Kim Best-Staton
             granted Defendant’s motion to suppress for lack of
             reasonable suspicion to stop the Defendant.

             4. On July 12, 2013, the Honorable Kim Best-Staton made
             the required written findings and signed her Findings of
             Fact and Conclusions of Law.

             5. The State respectfully contends that the District Court’s
             decision to grant the Defendant’s motion to suppress was
             contrary to the law.




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                                   Opinion of the Court



             6. The State disputes the District Court Judge’s Findings
             of Fact and respectfully requests a hearing de novo in
             Superior Court.

             THEREFORE, based on the foregoing, the State of North
             Carolina respectfully enters notice of appeal and requests
             a hearing de novo in superior court.

      The superior court dismissed the State’s appeal and denied the State a hearing

de novo, because “the State could not articulate in the written Notice of Appeal which

specific FINDINGS OF FACT or CONCLUSIONS OF LAW the State objected.” The

court did review, and affirmed, the district court’s decision.

      Statutes granting the State a right to appeal are strictly construed. State v.

Murrell, 54 N.C. App. 342, 343, 283 S.E.2d 173, 173, disc. review denied, 304 N.C.

731, 288 S.E.2d 804 (1982). The statute is silent in the manner in which the State is

required to give notice of appeal from the district court’s “preliminary determination”

that it intends to grant a defendant’s pretrial motion to suppress or dismiss. N.C.

Gen. Stat. § 20-38.7(a).

      The key inquiry becomes whether N.C. Gen. Stat. § 20-38.7(a) requires more

than a general objection by the State to the district court judge’s findings of fact or

an assertion of new facts or evidence in order to demonstrate a “dispute about the

findings of fact.” N.C. Gen. Stat. § 20-38.7(a).

      In State v. Palmer, 197 N.C. App. 201, 676 S.E.2d 559, disc. review denied, 363

N.C. 810, 692 S.E.2d 394 (2010), this Court addressed the defendant’s notice of appeal



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                                   Opinion of the Court



to superior court from the district court’s “preliminary determination.” This Court

looked to the procedures set forth in N.C. Gen. Stat. § 15A-1432(b) to guide whether

the State had properly appealed to the superior court under N.C. Gen. Stat. § 20-

38.7(a). Id. at 205-06, 676 S.E.2d at 562.

      This Court reasoned that N.C. Gen. Stat. § 15A-1432 was enacted to “create[]

a simplified motion practice for the State’s appeal,” “regulates the appeals by the

State to superior court from a district’s court’s final order dismissing criminal charges

against a defendant,” and “is analogous to [N.C. Gen. Stat.] § 20-38.7(a).” Id. at 205,

676 S.E.2d at 562.

      N.C. Gen. Stat. § 15A-1432, entitled “Appeals by State from district court

judge,” provides, in part:

             (a) Unless the rule against double jeopardy prohibits
             further prosecution, the State may appeal from the district
             court judge to the superior court:

             (1) When there has been a decision or judgment dismissing
             criminal charges as to one or more counts.

             ....

             (b) When the State appeals pursuant to subsection (a) the
             appeal is by written motion specifying the basis of the
             appeal made within 10 days after the entry of the judgment
             in the district court. The motion must be filed with the
             clerk and a copy served upon the defendant.

N.C. Gen. Stat. § 15A-1432(a)(1), (b) (2015) (emphasis supplied). Here, Defendant

contends the State failed to sufficiently “specify[] the basis of the appeal.” Id.


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                                   Opinion of the Court



      The State’s written notice of appeal in Palmer included the defendant’s name

and address, and file number. Id. at 206, 676 S.E.2d at 562. The document stated the

State “‘appeals to superior court the district court preliminary determination

granting a motion to suppress or dismiss.’” Id. at 206, 676 S.E.2d at 562-63. The

document “also enumerated the issues raised in defendant’s . . . pretrial motion to

suppress, and recited almost verbatim all of the district court’s findings of fact from

its . . . preliminary determination.” Id. at 206, 676 S.E.2d at 563.

      The State’s notice of appeal in Palmer did not specify the date of the district

court’s preliminary determination from which it was appealing. The superior court

concluded it had no basis to determine whether the notice of appeal was timely and

was without jurisdiction to hear the State’s appeal. Id. at 206-07, 676 S.E.2d at 563.

      This Court held in Palmer:

             [W]e have declined to infer that the General Assembly
             intended to engraft upon N.C. Gen. Stat. § 20-38.7(a) the
             ten-day time limit for making an appeal specified in N.C.
             Gen. Stat. § 15A-1432(b). Accordingly, in light of the
             information that was included in the State’s written
             motion, we hold the State’s appeal sufficiently comported
             with the remaining requirements of N.C.G.S. § 15A-
             1432(b), and that the superior court erred by concluding
             that it was “unable to determine that it ha[d] jurisdiction
             to hear the State’s ‘appeal[,’] as the proper basis for this
             ‘appeal’ and the [superior c]ourt’s jurisdiction to hear an
             appeal of this matter [wa]s not properly alleged in the
             State’s sole filing in this matter.”

Id. at 207, 676 S.E.2d at 563 (emphasis supplied).



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                                     Opinion of the Court



       In Palmer, this Court upheld the validity of the State’s written notice of appeal,

despite the State’s failure to note the specific findings of fact in dispute. Here, the

State’s notice of appeal reads the “State disputes the District Court Judge’s Findings

of Fact.”

       We are bound by Palmer and hold the trial court erred in dismissing the State’s

notice of appeal under N.C. Gen. Stat. § 20-38.7(a) as insufficient. Neither the plain

language of N.C. Gen. Stat. § 20-38.7(a) nor § 15A-1432(b) requires the State to set

forth the specific findings of fact to which it objects in its notice of appeal to superior

court. We decline to extend the language of the statute to require this.

       The record states on 30 May 2014, after the State filed its notice of appeal to

superior court, the Senior Resident Superior Court Judge of the 26th Judicial District

entered an Administrative Order, as follows:

               ADMINISTRATIVE ORDER CONCERNING APPEALS
               BY THE STATE UNDER NCGS SEC. 20-38.7

               Pursuant to the inherent authority of the Court and for the
               purpose of promoting the efficient disposition of appeals
               made by the State of North Carolina from the District
               Court of Mecklenburg County to the Superior Court of
               Mecklenburg under the provisions of NCGS Sec. 20-38.7,

               IT IS ORDERED:

            1. Whenever the State appeals from a district court
               preliminary determination granting a motion to suppress
               or dismiss as permitted by NCGS 20-38.7, the State shall
               specify with particularity in its written notice of appeal
               those findings of fact made by the district court, or portions


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                                   Opinion of the Court



             thereof, which the State disputes in good faith; a broadside
             exception to the district court’s findings of fact is not
             permitted.

          2. Prior to the hearing of the State’s appeal, counsel for the
             defendant and the assistant district attorney prosecuting
             the appeal shall confer and make a good faith effort to
             stipulate to any facts that are not in dispute. The
             stipulations, if any, shall be reduced to writing, signed by
             the attorneys for the State and defendant, and filed with
             the Clerk of Superior Court.

          3. This Order shall apply to all appeals made by the State
             under the provisions of NCGS Sec. 20-38.7 on and after
             June 9, 2014.

      The Senior Resident Superior Court Judge has the authority to enter local

rules and administrative orders governing practices and procedures within that

Judicial District. See N.C. Gen. Stat. § 7A-41.1(c) (2015). The entered administrative

order provides guidance on the local practice and procedure concerning “dispute(s)

about the findings of fact.” N.C. Gen. Stat. § 20-38.7(a).

      The State has not appealed from this order and it is not before us on this

appeal. The State’s notice of appeal to superior court was entered prior to the filing

of this administrative order, and it is not applicable to this case on remand.

                                    IV. Conclusion

      We remand this matter to the superior court to review the district court’s 12

June 2013 “preliminary determination” on Defendant’s motion to suppress according

to the statutory standard of review set forth in N.C. Gen. Stat. § 20-38.7(a). The trial



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                                   Opinion of the Court



court should address the State’s challenges to the district court’s findings of fact at a

hearing pursuant to N.C. Gen. Stat. § 20-38.7(a) and N.C. Gen. Stat. §15A-1432.

      REMANDED.

      Panel Consisting of: Calabria, Stroud, Tyson, JJ.




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