              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
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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.”



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      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



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             (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


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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



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“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


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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).

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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.




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