              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-295

                               Filed: 20 October 2015

Mecklenburg County, No. 11 CRS 228888

STATE OF NORTH CAROLINA

             v.

THOMAS SCOTT MILLER, Defendant.


      Appeal by defendant from orders entered 13 August 2014 by Judge H. William

Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals

23 September 2015.


      Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney
      General, for the State.

      Arnold & Smith, PLLC, by Kyle Frost, for defendant-appellant.


      ZACHARY, Judge.


      Where unchallenged findings of fact supported the trial court’s conclusions of

law, the trial court did not err in denying defendant’s motion to suppress. Where

defendant pleaded guilty, defendant does not have a right of appeal from the trial

court’s denial of his motion to dismiss. Where defendant has not alleged an untimely

appeal, an interlocutory appeal, or review of a motion for appropriate relief, this

Court may not issue a writ of certiorari.

                       I. Factual and Procedural Background
                                    STATE V. MILLER

                                    Opinion of the Court



      On 22 June 2011, Officer Anthony Watkins of the Charlotte Mecklenburg

Police Department observed Thomas Scott Miller (defendant) driving south on Park

Road. Officer Watkins witnessed defendant hit the center median with his vehicle,

fail to stop at a red light at an intersection, and travel 50 mph in a 35 mph zone.

Officer Watkins made a U-turn to pursue defendant. While Officer Watkins was in

pursuit of defendant, but before a traffic stop was commenced, defendant neglected

to stop at a second red light. After this additional failure to stop, Officer Watkins

activated his blue lights and initiated a traffic stop.

      Officer Watkins found defendant in the driver’s seat, and requested his license

and registration. Upon detecting a strong odor of alcohol on defendant’s breath, and

noticing that defendant had red, glassy eyes, Officer Watkins asked defendant to exit

the car and perform a series of field sobriety tests, as well as two roadside preliminary

breath tests.   Defendant admitted to consuming alcohol.         Officer Watkins then

arrested defendant for impaired driving.

      Defendant telephoned his mother to come and observe the intoxilizer test at

the station, but she did not arrive within the requisite period of time and thus could

not observe the test. Defendant was placed on $2,500 secured bond.

      Defendant was charged with driving while impaired.            On 16 April 2014,

defendant moved to suppress all evidence resulting from his arrest, alleging that it

was an unconstitutional seizure. That same day, defendant moved to dismiss the



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                                   Opinion of the Court



charge, contending that he was denied his right to communicate with counsel and

friends and to have them observe him. Defendant filed an amended motion to dismiss

on 30 July 2014. On 13 August 2014, the trial court denied these motions. On 13

October 2014, defendant pleaded guilty to driving while impaired, and preserved his

right to appeal the denial of his motions.

      From the denial of his motions, defendant appeals.

                                II. Motion to Suppress

      In his first argument, defendant contends that the trial court erred in denying

his motion to suppress all evidence resulting from his arrest. We disagree.

                                A. Standard of Review

      Appellate review of a trial court’s denial of a motion to suppress is “strictly

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).

“The trial court’s conclusions of law . . . are fully reviewable on appeal.” State v.

Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

                                      B. Analysis

      At trial, the State elicited testimony from Officer Watkins concerning the

events of the date in question. After direct, cross, and redirect examination of Officer



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                                   Opinion of the Court



Watkins, the State rested its case. Defendant then moved to suppress the evidence,

alleging that the stop was an unlawful seizure without probable cause or reasonable

suspicion.

      On appeal from the trial court’s order denying defendant’s motion to suppress,

defendant contends that the trial court “made numerous Findings of Facts [sic] which

were not supported by competent evidence.” Specifically, defendant challenges the

trial court’s Findings of Fact numbers 3, 4, 8, 18, and 21. Defendant does not dispute

any other of the trial court’s findings. In its order, the trial court made the following

Findings of Fact, among others, that are not contested by defendant on appeal:

             5.     While in pursuit, but before a traffic stop was
             initiated, the Defendant failed to stop at a red light at Park
             Road and Seneca Place.

             ...

             9.     After smelling a strong odor of alcohol, the officer
             asked the Defendant to exit his vehicle to determine the
             origin of the odor of alcohol.

             10.  The officer determined that the odor of alcohol was
             coming from the Defendant's breath, and saw that the
             Defendant had red glassy eyes.

             ...

             14.   The Defendant exhibited 6 of 6 clues on the
             Horizontal Gaze Nystagmus Test.

             15.   During the Walk and Turn test, the Defendant
             started too soon, stepped offline multiple times and held
             his arms up away from his body for balance throughout the


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                                  Opinion of the Court



              test.

              16.    During the One Leg Stand, the Defendant counted
              improperly, bent his leg, and did not follow the officer's
              directions.

              17.    That the Defendant admitted to consuming “a beer”
              prior to driving and was coming from “Bankers,” a local
              bar.

              ...

              19.   The officer formed the opinion that the Defendant
              was appreciably impaired.

      “Where no exception is taken to a finding of fact by the trial court, the finding

is presumed to be supported by competent evidence and is binding on appeal.” State

v. White, ___ N.C. App. ___, ___, 753 S.E.2d 698, 701 (citations and quotations

omitted), cert. denied, review denied, 367 N.C. 785, 766 S.E.2d 627 (2014).

Accordingly, these findings, unchallenged by defendant on appeal, are binding upon

this Court.

      Even assuming arguendo that there was no evidence to support the challenged

findings, we hold that these unchallenged findings are fully sufficient to support the

trial court’s conclusion that “[t]here was a reasonable and articulable suspicion to

stop the Defendant and probable cause for his arrest.” Our Supreme Court has

previously held that where an officer witnessed a defendant’s traffic violation, this

personal observation created reasonable suspicion for a traffic stop. See State v.

Styles, 362 N.C. 412, 417, 665 S.E.2d 438, 441 (2008). We have further held that the


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                                    Opinion of the Court



testimony of an officer regarding his observations of defendant, and the opinion

derived therefrom, is sufficient evidence of defendant’s impairment, provided that the

opinion was not based solely on the odor of alcohol. See State v. Mark, 154 N.C. App.

341, 346, 571 S.E.2d 867, 871 (2002) aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693

(2003). In the instant case, Officer Watkins personally watched defendant drive

through a red light, creating reasonable suspicion to support a traffic stop. Upon

stopping defendant’s vehicle and administering field sobriety tests, Officer Watkins

formed an opinion of defendant’s sobriety, and testified to that effect. These facts

were all found by the trial court, and are not challenged on appeal; they support the

stop and arrest.

      This argument is without merit.

                                 III. Motion to Dismiss

      In his second argument, defendant contends that the trial court erred in

denying his motion to dismiss. Because defendant pleaded guilty at trial, we are

unable to review this argument, and dismiss it without prejudice to defendant’s right

to file a motion for appropriate relief with the trial court.

                                 A. Standard of Review

      It is well established that under North Carolina law “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



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                                  Opinion of the Court



proceedings.” State v. Jamerson, 161 N.C. App. 527, 528, 588 S.E.2d 545, 546 (2003)

(quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002)).

      Upon a guilty plea, the defendant’s right of appeal is restricted to the following

issues:

             1.    Whether the sentence “is supported by the
             evidence.” This issue is appealable only if his minimum
             term of imprisonment does not fall within the presumptive
             range. N.C. Gen. Stat. § 15A-1444(a1) (2001);

             2.    Whether the sentence “[r]esults 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.” N.C. Gen. Stat. § 15A-1444(a2)(1)
             (2001);

             3.     Whether the sentence “[c]ontains 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.” N.C. Gen. Stat. § 15A-
             1444(a2)(2) (2001);

             4.     Whether the sentence “[c]ontains 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)(3) (2001);

             5.    Whether the trial court improperly denied
             defendant's motion to suppress. N.C. Gen. Stat. §§ 15A-
             979(b)(2001), 15A-1444(e) (2001);

             6.     Whether the trial court improperly denied
             defendant's motion to withdraw his guilty plea. N.C. Gen.
             Stat. § 15A-1444(e).

Id. at 528-29, 588 S.E.2d at 546-47.


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                                   STATE V. MILLER

                                   Opinion of the Court



      If a defendant has no appeal as of right, a defendant may nevertheless petition

this Court for review by writ of certiorari pursuant to the provisions of N.C. Gen. Stat.

§ 15A-1444(e). A petition for writ of certiorari may be granted where:

             (1) defendant lost his right to appeal by failing to take
             timely action; (2) the appeal is interlocutory; or (3) to
             review a trial court's denial of a motion for appropriate
             relief. N.C. R. App. P. 21(a)(1) (2003). In considering
             appellate Rule 21 and N.C. Gen. Stat. § 15A-1444, this
             Court has reasoned that since the appellate rules prevail
             over conflicting statutes, we are without authority to issue
             a writ of certiorari except as provided in Rule 21. State v.
             Nance, 155 N.C. App. 773, 574 S.E.2d 692 (2003); Pimental,
             153 N.C. App. at 73-74, 568 S.E.2d at 870; State v. Dickson,
             151 N.C. App. 136, 564 S.E.2d 640 (2002).

Id. at 529, 588 S.E.2d at 547.

                                      B. Analysis

      After the State rested its case, defendant moved to dismiss the charge, alleging

that he was denied his constitutional right to communicate with counsel and friends

and gather evidence on his behalf by allowing friends or family to observe him and

form opinions as to his condition at the time. On appeal, defendant contends that the

trial court lacked an evidentiary basis for several of its findings and that the denial

of his right to gather evidence resulted in substantial prejudice to him.

      In that defendant pleaded guilty, his right of appeal is limited by statute. As

defendant’s motion to dismiss does not fall within any of the six categories listed in




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                                   Opinion of the Court



N.C. Gen. Stat. § 15A-1444 and quoted above, defendant does not have an appeal as

of right from the trial court’s denial of defendant’s motion.

       Furthermore, there are no grounds for certiorari to issue. Because defendant

does not allege a lack of timely action, the appeal is not interlocutory, and the appeal

does not concern a denial of a motion for appropriate relief, as required by Appellate

Rule 21 and N.C. Gen. Stat. § 15A-1444, this Court is unable to issue a writ of

certiorari. As such, we are unable to hear this argument, and must dismiss it.

       Although we dismiss this argument, we do so without prejudice to defendant’s

pursuit of a motion for appropriate relief, pursuant to N.C. Gen. Stat. § 15A-1411 et

seq., before the trial court.

       AFFIRMED IN PART, DISMISSED IN PART.

       Judges STEPHENS and McCULLOUGH concur.




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