              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-731-2

                              Filed: 20 February 2018

Durham County, No. 12 CRS 61997

STATE OF NORTH CAROLINA

             v.

MICHAEL ANTONIO BULLOCK, Defendant.


      Appeal by Defendant from judgment entered 30 July 2014 by Judge Orlando

F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 17

November 2015. By opinion issued 10 May 2016, a divided panel of this Court

reversed the decision of the trial court denying Defendant’s motion to suppress

evidence.   Upon review granted by the Supreme Court and by opinion dated 3

November 2017, the Supreme Court of North Carolina reversed and remanded the

case to the Court of Appeals to consider Defendant’s remaining arguments.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick
      C. Mertz, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant-appellant.


      MURPHY, Judge.


      After remand by our Supreme Court, Michael Antonio Bullock (“Defendant”)

has two issues to be considered on appeal. Defendant first argues that the trial court

erred in denying his motion to suppress because his consent to search the rental car
                                  STATE V. BULLOCK

                                   Opinion of the Court



he was driving was not voluntary due to the stop’s excessive scope and duration.

Specifically, Defendant argues the stop was prolonged because of questioning by

Officer John McDonough (“Officer McDonough”) and due to the delay in waiting for a

second officer. Defendant also argues that the trial court committed prejudicial error

by accepting his guilty plea without informing him of the maximum possible sentence

he could receive, in violation of N.C.G.S. § 15A-1022(a)(6). A detailed statement of

the facts related to the traffic stop and Defendant’s motion to suppress are stated in

this Court’s opinion at State v. Bullock, ___ N.C. App. ___, 785 S.E.2d 746 (2016), writ

allowed, 369 N.C. 37, 786 S.E.2d 927 (2016), and rev'd, ___ N.C. ___, 805 S.E.2d 671

(2017)(194A16). To the extent Defendant’s remaining arguments rely on independent

facts, they will be stated and analyzed separately.

                             MOTION TO SUPPRESS

      On 27 November 2012, Defendant was pulled over by Officer McDonough, a

K-9 handler with the Durham Police Department. Officer McDonough activated his

emergency equipment and initiated a traffic stop after witnessing Defendant exceed

the speed limit and commit other traffic infractions.       After routine questioning,

Officer McDonough asked Defendant to step out of the vehicle and for permission to

search Defendant.     Defendant consented.         After searching Defendant, Officer

McDonough placed Defendant in his car and ran database checks on Defendant’s

license. Officer McDonough continued to ask Defendant questions while waiting for



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                                  Opinion of the Court



the checks to finish. Officer McDonough asked Defendant if there were any guns or

drugs in the car and for consent to search the vehicle. Defendant responded that he

did not want Officer McDonough to search “my shit" (hereinafter Defendant’s

“property”). Officer McDonough then asked what kind of property Defendant had in

the vehicle, to which Defendant replied that his property included a bag and two

hoodies. Defendant then said that Officer McDonough could search the car, but not

his property. After which, Officer McDonough called for backup explaining that he

could not search the car without another officer present. Defendant asked what

would happen if he revoked his consent, and Officer McDonough replied that he would

use his dog to sniff around the vehicle. Defendant responded, “that’s okay.”

       A second officer arrived three to five minutes after the call for backup, and

Defendant’s unopened bag was removed from the vehicle. Officer McDonough began

to search Defendant’s vehicle. During the search, Defendant was seated in Officer

McDonough’s patrol car with the window rolled down. Officer McDonough then

brought his K-9 to the vehicle and it did not alert to any narcotics. The K-9 next

sniffed the bag and indicated to Officer McDonough that there were narcotics in the

bag.

       Defendant argues that the trial court erred in denying his motion to suppress

because his consent was not voluntary due to the prolonging of the traffic stop by

Officer McDonough and by waiting for a second officer to arrive. Our review is limited



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by Defendant’s brief “to issues defined clearly and supported by arguments and

authorities.” State v. Roache, 358 N.C. 243, 299, 595 S.E.2d 381, 417 (2004) (citation

omitted); see N.C. R. App. P. 28(a) (“The scope of review on appeal is limited to

issues so presented in the several briefs. Issues not presented and discussed in a

party’s brief are deemed abandoned.”).

      Review of a motion to suppress is “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) (citations omitted). “Competent evidence is evidence

that a reasonable mind might accept as adequate to support the finding.” State v.

Chukwu, 230 N.C. App. 553, 561, 749 S.E.2d 910, 916 (2013) (citation and quotation

marks omitted).

        I.   Prolonging of the Traffic Stop

      Defendant’s argument challenges conclusion of law 2.

             That none of defendant's Constitutional rights, either
             Federal or State, have been violated in the method or
             procedure by which the traffic stop of defendant's vehicle
             was extended, the vehicle was searched, and defendant
             was seized and arrested on 27 November 2012.

      The Supreme Court of the United States has held that a traffic stop is limited

by “the time needed to handle the matter for which the stop was made . . . .” Rodriguez



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v. United States, 135 S. Ct. 1609, 1612 (2015). The trial court’s conclusion that the

stop was not unlawfully prolonged was confirmed by our Supreme Court in State v.

Bullock, ___ N.C. ___, 805 S.E.2d 671 (2017)(194A16). The Supreme Court held that

the initiation of the traffic stop to be lawful based on Officer McDonough’s

observations of Defendant’s traffic violations. Id. at ___, 805 S.E.2d at 676. The

Supreme Court held that Officer McDonough lawfully frisked Defendant without

prolonging the stop. Id. at ___, 805 S.E.2d at 677. The Supreme Court also held that

Officer McDonough’s database checks on Defendant’s license constitutionally

extended the traffic stop.    Id.    Further, the Supreme Court held that Officer

McDonough’s conversation during the lawful stop were sufficient to form reasonable

suspicion which authorized him to use his dog to sniff Defendant’s vehicle and bag.

Id. at ___, 805 S.E.2d at 678. Because all parts of the stop were lawfully extended,

the trial court did not err in determining Defendant’s consent to search his vehicle

was voluntary.

      Defendant’s argument also challenges conclusion of law 5.

             That defendant gave knowing, willing, and voluntary
             consent to search the vehicle. That at no point after giving
             his consent did defendant revoke his consent to search the
             vehicle.

      Consent given without coercion, “freely, intelligently, and voluntarily” allows

an officer to reasonably search a vehicle anywhere that might contain contraband.

State v. Baublitz, Jr., 172 N.C. App. 801, 807-08, 616 S.E.2d 615, 620 (2005) (citation


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and quotation marks omitted). “A warrantless search supported by consent is lawful

only to the extent that it is conducted within the spatial and temporal scope of the

consent.” Id. at 808, 616 S.E.2d at 620. “The temporal scope of a consent to a search

is a question of fact to be determined in light of all the circumstances.” State v.

Williams, 67 N.C. App. 519, 521, 313 S.E.2d 236, 237 (1984) (citation omitted).

      We hold that the evidence before the trial court supports the finding that

Officer McDonough’s search of the vehicle did not exceed the scope of Defendant's

consent, and that Defendant’s consent was knowing, willing, and voluntary. Officer

McDonough explained to Defendant that he needed to wait for a second Officer to

search his vehicle, and Defendant never revoked his consent. The only limitation

that Defendant placed on Officer McDonough was to not search his property.

Therefore, the trial court did not err in determining that Defendant’s consent was

voluntary.

                         DEFENDANT’S GUILTY PLEA

      Pursuant to a plea agreement with the State, Defendant pleaded guilty to

trafficking in heroin by possession of 28 grams or more, trafficking in heroin by

transportation of 28 grams or more, and possession of a controlled substance with the

intent to sell a Schedule I controlled substance (heroin). The trial court correctly

informed Defendant that each trafficking charge carried a potential maximum

punishment of 279 months but erroneously informed Defendant that the possession



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charge carried a potential maximum punishment of 24 months. The trial court told

Defendant that he faced a total potential maximum punishment of 582 months. The

transcript of plea contained the same erroneous information regarding the total

potential maximum punishments. The trial court accepted Defendant’s plea, and

Defendant’s pursuant convictions were consolidated into one active sentence for

trafficking in heroin by possession of 28 grams or more to 225 to 279 months.

      Defendant petitioned this Court for a writ of certiorari on 10 August 2015,

which was dismissed on 10 May 2016 “as moot per opinion.” In order to comply with

the Supreme Court’s mandate and given the law of the case, we hold that the

Supreme Court’s opinion negated the prior mootness determination by our Court, and

we independently exercise our authority to grant the writ of certiorari in order to

review the judgment dated 30 July 2014.

      Defendant and the State acknowledge that the potential maximum sentence

for a class H felony is 39 months. See N.C.G.S. §§ 15A-1340.17(c)-(d). The transcript

of plea also reflects this 15 month error. The total potential maximum punishment

that Defendant actually faced was 597 months, not 582 months as stated by the trial

court and indicated on the transcript of plea. As a result, Defendant argues that the

trial court violated N.C.G.S. § 15A-1022(a)(6) which states that a trial court may not

accept a guilty plea from a defendant without addressing him personally and

“[i]nforming him of the maximum possible sentence on the charge for the class of



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offense for which the defendant is being sentenced, including that possible from

consecutive sentences, and of the mandatory minimum sentence, if any, on the

charge[.]” N.C.G.S. § 15A-1022(a)(6) (2017).

      “Our Courts have rejected a ritualistic or strict approach in applying these

standards and determining remedies associated with violations of G.S. § 15A-1022.

Even when a violation occurs, there must be prejudice before a plea will be set aside.”

State v. Reynolds, 218 N.C. App. 433, 435, 721 S.E.2d 333, 335 (2012) (citation

omitted). Errors resulting from a statutory violation require a showing of prejudice

to a defendant. State v. McLaughlin, 320 N.C. 564, 568, 359 S.E.2d 768, 771 (1987)

(“We agree that the trial judge erred as defendant contends by not adhering to the

requirements of the statute, but we find no error of constitutional dimension and hold

that a new trial is unnecessary because there is no showing that the error prejudiced

defendant.”).

                A defendant is prejudiced by errors relating to rights
                arising other than under the Constitution of the United
                States when there is a reasonable possibility that, had the
                error in question not been committed, a different result
                would have been reached at the trial out of which the
                appeal arises. The burden of showing such prejudice under
                this subsection is upon the defendant.

N.C.G.S. § 15A-1443(a) (2017).

      Defendant argues that this sentencing error was prejudicial and points to State

v. Reynolds in support of his argument. In Reynolds, a defendant accepted a plea



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                                  Opinion of the Court



deal with a maximum sentence of 168 months. Reynolds, 218 N.C. App. at 434, 721

S.E.2d at 334. The defendant was subsequently sentenced to 135 to 171 months in

prison. Id. Because defendant’s sentence carried an additional three months of

potential imprisonment due to attaining habitual felon status, this Court held that

the voluntariness of the guilty plea was called into question and vacated defendant’s

convictions. Id. at 438, 721 S.E.2d at 336.

      Here, Defendant’s reliance on Reynolds is misplaced and fails to recognize a

critical distinction. In contrast to Reynolds, Defendant faced no additional time of

imprisonment as a result of this error. Per agreement, Defendant’s charges were

consolidated into one sentence with a mandatory minimum and maximum

punishment as set out in the applicable version of N.C.G.S. § 90-95(h)(4)(c). As a

result, the trial court’s calculation error did not affect the maximum punishment that

Defendant received as a result of his plea. Further, Defendant fails to make an

argument as to how the result of this case would have been different if Defendant had

been informed of the correct potential maximum punishment.            It would be a

miscarriage of justice for us to accept that Defendant would have backed out of his

agreement if Defendant knew that the total potential maximum punishment was 15

months longer on a charge that was being consolidated into his trafficking conviction.

Reynolds did not create a per se rule requiring reversal. Reversal was appropriate in

Reynolds, because “Defendant had been misinformed as to the maximum sentence he



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                                  Opinion of the Court



would receive as a result of his guilty plea.” Id. at 437, 721 S.E.2d at 335-36. Here,

Defendant has failed to show prejudice, and the trial court did not commit prejudicial

error by accepting Defendant’s voluntary guilty plea.

                                  CONCLUSION

      For the reasons stated above, we hold that the trial court did not err by denying

Defendant’s motion to suppress and did not commit prejudicial error in accepting

Defendant’s guilty plea.

      AFFIRMED IN PART AND NO PREJUDICIAL ERROR IN PART.

      Judge BRYANT concurs.

      Judge ARROWOOD concurs in result only.




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