               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-635

                                Filed: 7 February 2017

Wilkes County, No. 14 CRS 050858

STATE OF NORTH CAROLINA

              v.

JEFFREY ROBERT PARISI


        Appeal by the State from order entered 6 April 2016 by Judge Michael D.

Duncan in Wilkes County Superior Court. Heard in the Court of Appeals 9 January

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General John W.
        Congleton, for the State.

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


        TYSON, Judge.


        The State appeals from the superior court’s order affirming the district court’s

final order, which granted Jeffrey Robert Parisi’s (“Defendant”) motion to suppress

and dismissed the charge of driving while impaired (“DWI”). We dismiss in part,

vacate in part, and remand.

                                 I. Factual Background

        On 1 April 2014, at approximately 11:30 p.m., Wilkesboro Police Officer

Anderson was operating a checkpoint and observed Defendant as he drove up to the
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checkpoint.   While Officer Anderson observed nothing illegal about Defendant’s

driving, he overheard a “disturbance” between the occupants inside the vehicle.

When the vehicle approached where Officer Anderson was standing, the occupants

became silent.

      Officer Anderson approached the driver’s door and shined his light into the

vehicle to look at the occupants. At that point, Officer Anderson observed an opened

carton, or “box,” used to carry alcohol located on the passenger side floorboard. He

did not observe any opened individual bottles or cans of alcohol. He also noticed an

odor of alcohol coming from the vehicle.

      Officer Anderson spoke with Defendant and observed Defendant had glassy

and watery eyes. Officer Anderson asked Defendant to pull off to the side of the road

and requested Defendant to exit the vehicle. At this point, Officer Anderson realized

the moderate smell of alcohol was coming from Defendant and not from inside the

vehicle. Defendant admitted he had consumed three beers earlier in the evening.

      Officer Anderson testified Defendant “did not appear grossly impaired,” but

had Defendant perform three field sobriety tests: the walk-and-turn test, the one-leg-

stand test, and the Horizontal Gaze Nystagmus (“HGN”) test. Before each test,

Officer Anderson gave Defendant instructions on how to perform the test, which

Defendant was able to follow.




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      On the walk-and-turn test, Defendant had a gap, greater than a half an inch,

between his heel and toe on two steps. Officer Anderson testified this counted as one

clue out of eight possible clues of impairment. On the one-leg-stand test, Defendant

swayed and used his arms for balance, which Officer Anderson counted as two out of

four possible clues of impairment. Officer Anderson also administered the HGN test

and, over Defendant’s objection, was allowed to testify as an expert on the test.

Officer Anderson testified all six clues of impairment were present on the test.

      Based upon these tests, Officer Anderson formed an opinion that Defendant

had consumed a sufficient quantity of alcohol to impair his mental and physical

faculties. Defendant was charged with driving while impaired. The next day, a

magistrate’s order was entered finding probable cause to detain.

      On 17 June 2015, Defendant appeared in Wilkes County District Court and

made a pre-trial, oral motion to “suppress pc & checkpoint.” The district court denied

the checkpoint motion, but granted the motion to suppress. The State gave oral notice

of appeal.

      Before the district court entered its written order, the State filed a written

notice of appeal to the superior court on 27 July 2015 to ensure that its appellate

rights were preserved. The sole basis for the State’s appeal was “that there was

probable cause to arrest Defendant for the charge of driving while impaired.”




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      The district court entered a written order on 23 September 2015. While the

written order was labeled “Preliminary Order of Dismissal,” it only granted

Defendant’s motion to suppress and did not dismiss Defendant’s charge. The State

again filed a written notice of appeal to the superior court pursuant to N.C. Gen. Stat.

§ 20-38.7. The State argued “no competent evidence was presented to support the

motion to suppress.”

      Aside from the district court’s order being labeled as a “dismissal,” nothing

indicates the district court actually entered a preliminary dismissal or that the State

had appealed from such a dismissal. Each of the State’s notices of appeal specifically

and solely addressed Defendant’s motion to suppress.         However, on appeal, the

superior court granted “Defendant’s Motion to Suppress and Motion to Dismiss” and

remanded the case to the district court for entry of a final order “consistent with [its]

Order.” (emphasis supplied). On 11 March 2016, the district court entered its final

order, which suppressed evidence supporting Defendant’s arrest and dismissed the

DWI charge.

      The State appealed the district court’s final order to the superior court, along

with the proper certification. See N.C. Gen. Stat. § 15A-1432 (2015). On 6 April 2016,

the superior court affirmed the district court’s final order suppressing the evidence

supporting the arrest of Defendant and dismissing the charge. The State appeals.

                                       II. Issues



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      The State argues the district court erred by (1) concluding that Officer

Anderson lacked probable cause to arrest Defendant for driving while impaired, and

(2) granting Defendant’s motion to suppress and dismissing the case. The State

further argues the superior court erred by affirming the district court’s final order

and requests this Court to reverse the superior court’s order.

      Defendant argues this Court lacks jurisdiction to hear this case. He asserts he

did not make a pre-trial motion to dismiss and the district court never entered a

preliminary order dismissing the case. As a result, the superior court on its review

of the district court’s preliminary order lacked subject matter jurisdiction to remand

the case for dismissal.    If so, the superior court possessed jurisdiction to solely

consider the district court’s preliminary order granting Defendant’s motion to

suppress. Defendant argues the superior court and district court orders dismissing

the case are nullities and the State has no statutory right to appeal the district court’s

final order suppressing the evidence.

      Defendant further argues, even if this Court has jurisdiction to hear the State’s

appeal, the district court did not err in granting Defendant’s motion to suppress.

Defendant argues the district court’s findings of fact support its conclusion of law that

he was arrested without probable cause.

                                III. Standard of Review




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      The issue of subject matter jurisdiction may be raised at any time, including

for the first time on appeal. Huntley v. Howard Lisk Co., Inc., 154 N.C. App. 698, 700,

573 S.E.2d 233, 235 (2002). Our standard of review for questions of subject matter

jurisdiction is de novo. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010).

                                    IV. Jurisdiction

      The procedure and appeals process for implied-consent offenses has been the

subject of several recent cases before our courts. See e.g., State v. Miller, __ N.C. App.

__, 786 S.E.2d 367 (2016); State v. Bryan, 230 N.C. App. 324, 749 S.E.2d 900 (2013),

disc. review denied, 367 N.C. 330, 775 S.E.2d 615 (2014); State v. Osterhoudt, 222

N.C. App. 620, 731 S.E.2d 454 (2012); State v. Palmer, 197 N.C. App. 201, 676 S.E.2d

559 (2009); State v. Fowler, 197 N.C. App. 1, 676 S.E.2d 523 (2009).

                           A. Grounds for the State’s Appeal

      The State bases its appeal in this case upon N.C. Gen. Stat. §§ 20-38.7, 15A-

979(c), 15A-1432, and 15A-1445. Neither N.C. Gen. Stat. §§ 15A-979 nor 15A-1445

are applicable to this appeal.

      Our case law clearly provides that N.C. Gen. Stat. § 15A-1432 controls an

appeal from a judgment of the superior court affirming the district court’s final order,

not N.C. Gen. Stat. § 15A-1445(a)(1). Bryan, 230 N.C. App. at 327, 749 S.E.2d at 902.

N.C. Gen. Stat. §§ 15A-1445(b) and 15A-979 are also inapplicable. See Osterhoudt,



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222 N.C. App. at 625, 731 S.E.2d at 458. These statutes allow the State to appeal to

this Court when a superior court grants a defendant’s motion to suppress. N.C. Gen.

Stat. §§ 15A-1445(b) and 15A-979 (2015).

         This Court has clarified “the State receives an automatic appeal as of right

only from decisions by a superior court acting in its normal capacity.” Bryan, 230 N.C.

App. at 327-28, 749 S.E.2d at 903 (emphasis added) (citing Osterhoudt, 222 N.C. App.

at 625, 731 S.E.2d at 458). In this case, the superior court did not grant Defendant’s

motion to suppress, but only affirmed the district court’s preliminary determination

on the motion to suppress, and again later affirmed the district court’s final order.

The provisions of N.C. Gen. Stat. §§ 20-38.7 and 15A-1432 govern this appeal.

                                B. Jurisdiction to Dismiss

         Defendant argues this Court lacks jurisdiction to hear the State’s appeal on

Defendant’s motion to suppress. We agree.

         “[T]he State cannot appeal proceedings from a judgment in favor of the

defendant in a criminal case in the absence of a statute clearly conferring that right.”

State v. Dobson, 51 N.C. App. 445, 446, 276 S.E.2d 480, 481 (1981). N.C. Gen. Stat.

§ 20-38.6 (2015) details the procedure for pre-trial motions in implied-consent offense

cases:

               The defendant may move to suppress evidence or dismiss
               charges only prior to trial, except the defendant may move
               to dismiss the charges for insufficient evidence at the close
               of the State’s evidence and at the close of all of the evidence


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             without prior notice. If, during the course of the trial, the
             defendant discovers facts not previously known, a motion
             to suppress or dismiss may be made during the trial.

N.C. Gen. Stat. § 20-38.6(a).

      When a defendant makes a pre-trial motion to suppress or motion to dismiss,

the district court may only enter a “preliminary determination” indicating whether

the motion should be granted or denied. N.C. Gen. Stat. § 20-38.6(f). The district

court cannot enter a final judgment on the pre-trial motion until after the State has

appealed to the superior court, has indicated it does not intend to appeal, or fails to

appeal within the time allowed. Id.

      N.C. Gen. Stat. § 20-38.7 (2015) provides the process by which the State may

appeal the district court’s preliminary determination on a defendant’s pre-trial

motion:

             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.

N.C. Gen. Stat. § 20-38.7(a).

      After the superior court considers the State’s appeal from the district court’s

preliminary determination pursuant to N.C. Gen. Stat. § 20-38.7(a), the court must

“enter an order remanding the matter to the district court with instructions to finally



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                                    Opinion of the Court



grant or deny the defendant’s pretrial motion.” Fowler, 197 N.C. App. at 11, 676

S.E.2d at 535. The State does not have a statutory right to appeal and cannot appeal

to the appellate division from a superior court’s interlocutory order remanding the

case to the district court for entry of a final order. Id. at 7, 676 S.E.2d at 532.

       On remand, the district court may properly enter a final order on the

defendant’s pre-trial motion. See id.        North Carolina’s statutes and case law

differentiate the process by which the State can appeal the final order, depending

upon whether the district court’s final order pertains to a pre-trial motion to suppress

or a motion to dismiss. See id.; N.C. Gen. Stat. § 15A-1432. The State does not possess

a statutory right to appeal to the appellate division from a district court’s final order

granting a defendant’s pretrial motion to suppress evidence. Fowler, 197 N.C. App. at

29, 676 S.E.2d at 546.

       On the other hand, this Court has held “the State has a right of appeal to the

superior court from a district court’s final dismissal of criminal charges against a

defendant pursuant to N.C.G.S. § 15A-1432(a)(1).” Id. at 30, 676 S.E.2d at 546

(emphasis supplied). The State also has a right to appeal to the appellate division

from a superior court’s order affirming a district court’s pre-trial dismissal pursuant

to N.C. Gen. Stat. § 15A-1432(e). Id.

       Here, the district court entered a preliminary determination granting

Defendant’s motion to suppress. While the written order was labeled “Preliminary



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                                  Opinion of the Court



Order of Dismissal,” this heading is surplusage, as the district court’s written order

solely granted Defendant’s pre-trial motion to suppress the evidence supporting the

arrest of Defendant. Neither the record nor the written order indicated Defendant

also made a pre-trial motion to dismiss under N.C. Gen. Stat. § 20-38.6(a), or that the

district court addressed a dismissal motion. The State appealed the district court’s

“preliminary determination . . . granting defendant’s pretrial motion to suppress the

arrest of Defendant.” Nothing in the State’s appeal to the superior court indicated it

was appealing from the district court’s preliminary determination granting a pre-

trial motion to dismiss or that the district court intended to dismiss Defendant’s

charge pre-trial. (emphasis supplied).

      Despite this fact, the superior court granted “Defendant’s Motion to Suppress

and Motion to Dismiss” and “remanded to the District Court for a final Order

consistent with this Court’s order.” The superior court possessed jurisdiction to

remand the motion to suppress to the district court with instructions to grant that

motion.

      However, the superior court did not possess jurisdiction to remand and order

the district court to dismiss Defendant’s charges. No motion to dismiss or preliminary

determination granting a motion to dismiss had been made by the District Court, and

the State did not indicate that it was appealing from such a motion.




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       The district court followed the superior court’s instructions on remand, entered

its final order granting Defendant’s motion to suppress, and also dismissed the case.

Pursuant to N.C. Gen. Stat. § 15A-1432(a), the State again appealed to the superior

court, which affirmed the district court’s order granting the motion to suppress and

its dismissal of the case.

       The State purported to appeal the superior court’s second order to this Court

pursuant to N.C. Gen. Stat. § 15A-1432(e). The superior court’s first order remanding

the case to the district court with instructions to dismiss was entered without

jurisdiction.   The subsequent orders dismissing the charges and affirming that

dismissal were also without jurisdiction and erroneous.

       The State relies upon a recent case of this Court to argue the district court’s

authority is not solely dependent upon a pre-trial motion from the parties and that

the district court possesses the authority to dismiss an action sua sponte following

the grant and affirmation of a motion to suppress. State v. Loftis, __ N.C. App. __, 792

S.E.2d 886 (2016). As such, the State contends the district court had authority to

dismiss the case ex mero motu after the superior court remanded with instructions to

grant the motion to suppress. On the facts before us, this contention is without merit.

       Our courts’ controlling precedents hold that a district court has no authority to

dismiss a case pre-trial. See State v. Joe, 365 N.C. 538, 539, 723 S.E.2d 339, 340 (2012)

(holding the trial court did not have authority to dismiss the case on its own motion);



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State v. Overrocker, 236 N.C. App. 423, 436, 762 S.E.2d 921, 929-30 (2014) (holding

the trial court erred in dismissing DWI charge after allowing motion to suppress).

      This Court’s decision in Loftis is distinguishable from these cases. In Loftis,

the trial court dismissed the pending action due to the State’s failure to prosecute.

Loftis, __ N.C. App. at __, 792 S.E.2d at 888. This Court upheld that dismissal on the

basis of the trial court’s “inherent power to manage its own docket.” Id. at __, 792

S.E.2d at 890.

      Here, the State did not fail to prosecute, which would have allowed the district

court to dismiss the case sua sponte. See id. The trial courts’ orders dismissing the

case pre-trial were entered without jurisdiction. This argument is overruled.

                                     V. Conclusion

       The superior court erred in its review of the district court’s preliminary

determination to suppress, when it remanded the case to the district court with

instructions to dismiss the case.

      As such, all subsequent orders dismissing the case were also entered

erroneously. We vacate those portions of the trial courts’ orders dismissing the case.

      The superior court possessed jurisdiction to review the district court’s pre-trial

preliminary determination on Defendant’s motion to suppress. However, the State

has no right to appeal the district court’s final order granting Defendant’s motion to

suppress. See Fowler, 197 N.C. App. at 28-29, 676 S.E.2d at 545. We do not address



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the merits of the State’s appeal regarding allowance of the motion to suppress and

dismiss that portion of the State’s appeal to this Court. The district court’s final order

to suppress remains undisturbed.

      As noted in Fowler, “[a] trial court’s decision to grant a pretrial motion to

suppress evidence ‘does not mandate a pretrial dismissal of the underlying

indictments’ because ‘[t]he district attorney may elect to dismiss or proceed to trial

without the suppressed evidence and attempt to establish a prima facie case.’”

Fowler, 197 N.C. App. at 28-29, 676 S.E.2d at 545 (emphasis original) (quoting State

v. Edwards, 185 N.C. App. 701, 706, 649 S.E.2d 646, 650, disc. review denied, 362

N.C. 89, 656 S.E.2d 281 (2007)).      As such, we vacate the trial courts’ orders of

dismissal and remand to superior court for further remand to the district court for

trial or further proceedings. It is so ordered.

      DISMISSED IN PART; VACATED IN PART; AND REMANDED.

      Chief Judge McGEE and Judge Stroud concur.




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