               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46479

STATE OF IDAHO,                                 )
                                                )    Filed: March 19, 2020
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
CALDWELL SCOTT McMULLEN,                        )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Boundary County. Hon. Barbara A. Buchanan, District Judge.

       Appeal from judgment of conviction for possession of a controlled substance with
       intent to deliver, dismissed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Caldwell Scott McMullen appeals from his judgment of conviction for possession of a
controlled substance with intent to deliver. McMullen argues that the district court erred in
denying his motion to suppress. Because McMullen entered an unconditional guilty plea, his
challenge is not preserved and his appeal is dismissed.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer stopped a vehicle McMullen was driving after observing it weaving between
lanes and crossing the fog line. McMullen consented to a search of the vehicle. Prior to
searching the vehicle, the officer frisked McMullen for weapons and discovered a bag containing



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methamphetamine in McMullen’s pants. A search of the vehicle revealed a brass pipe fitting
containing what the officer believed was burnt marijuana.
       McMullen was charged with trafficking in methamphetamine and possession of drug
paraphernalia. McMullen moved to suppress the evidence discovered during the frisk, arguing
that the officer lacked reasonable suspicion that McMullen was armed and dangerous. The
district court denied McMullen’s motion to suppress. Subsequently, as part of a plea agreement
resolving both this case and an unrelated felony case, McMullen pled guilty to an amended
charge of possession of methamphetamine with intent to deliver. I.C. § 37-2732(a)(1)(A). In
exchange for McMullen’s guilty plea, the State dismissed the possession of drug paraphernalia
charge and agreed to recommend a specific sentence. Although McMullen completed a guilty
plea advisory form, the terms of the plea agreement were not reduced to writing. McMullen
appeals, challenging the denial of his motion to suppress, which challenge he asserts was
preserved by a conditional guilty plea.
                                               II.
                                          ANALYSIS
       McMullen argues the district court erred in denying his motion to suppress, asserting that
the officer lacked reasonable suspicion to conduct a frisk for weapons. McMullen asserts this
challenge was preserved by a conditional guilty plea, the terms of which can be discerned from
the record. The State responds that McMullen waived his right to appeal the denial of his
suppression motion because his guilty plea did not comply with I.C.R. 11(a)(2) and the record
shows McMullen’s guilty plea was unconditional.         Alternatively, the State contends that
McMullen’s challenge to the denial of his suppression motion fails on the merits. We hold that
McMullen waived the right to appeal the denial of his motion to suppress.
       The entry of a valid guilty plea ordinarily constitutes a waiver of all nonjurisdictional
defects. Clark v. State, 92 Idaho 827, 832, 452 P.2d 54, 59 (1969). However, a defendant may
preserve the right to appeal nonjurisdictional defects by entering a conditional guilty plea
pursuant to I.C.R. 11(a)(2). Idaho Criminal Rule 11(a)(2) provides:
              With the approval of the court and the consent of the prosecuting attorney,
       a defendant may enter a conditional plea of guilty, reserving in writing the right,
       on appeal from the judgment, to review any specified adverse ruling. If the



                                               2
       defendant prevails on appeal, the defendant must be allowed to withdraw
       defendant’s plea.
Failure to comply with this rule results in a waiver of any issues not properly reserved for
appellate review. State v. Kelchner, 130 Idaho 37, 39, 936 P.2d 680, 682 (1997). Although
I.C.R. 11(a)(2) requires conditional pleas to be in writing, the absence of a writing is not always
fatal to a defendant’s appeal. We will consider the merits of an appeal under I.C.R. 11(a)(2) in
the absence of a writing if the record demonstrates the existence of a plea agreement permitting
the defendant to appeal a specific issue. State v. Anderson, 129 Idaho 763, 764, 932 P.2d 886,
887 (1997).
       Neither McMullen nor the State provided the district court with a written plea agreement.
Thus, we must review the record to determine whether McMullen retained the right to appeal the
denial of his suppression motion despite pleading guilty. The district court recited the plea
agreement’s terms on the record. Nowhere in the district court’s recitation was there any
indication that McMullen was reserving the right to appeal any pretrial rulings. McMullen also
affirmed that he understood the plea agreement and made no mention that his plea was
conditional. Moreover, the record demonstrates that McMullen did not reserve the right to
appeal the denial of his suppression motion. After accepting McMullen’s plea, the district court
engaged in the following conversation with McMullen regarding his right to appeal:
       Court:         Mr. McMullen, I know this morning you were talking about--or
                      your attorney was talking about maybe wanting to appeal. So I
                      want you to understand that if you entered a plea today, when you
                      actually plead guilty, you do give up your right to appeal the
                      motion to suppress; do you understand that?
       McMullen:      Yes.
       Court:         I just want to make sure that was really clear for the record.
       McMullen:      Actually, I thought that the two cases ran concurrent but they were
                      separated, so the appeal in the one case didn’t affect the [other]
                      case.
       Court:         Well, but once you plead guilty--when you plead guilty in a case,
                      then you’ve given up your right to appeal anything that happened
                      up to that time because you’ve said you’re guilty, there isn’t a trial,
                      you know, and you’re agreeing to the sentence. So I’m not really
                      sure what you would appeal.
       McMullen:      I guess I’m not sure--you said when the case is closed this
                      morning, the appeal goes on after the case is closed.



                                                3
       Court:         No, normally before you can file an appeal in a criminal case,
                      normally you have to do what we did today, a judgment would be
                      entered and then you can appeal. But when you’re pleading guilty,
                      then you’re giving up your right to appeal unless you think the
                      sentence was excessive. And we agreed to the sentence, so I don’t
                      know that you’re going to appeal. That’s all I am saying. I wanted
                      to make sure you understood that.
       McMullen argues that we should allow his appellate challenge because he pled guilty
believing he had retained his right to appeal the denial of his suppression motion. In support of
his argument, McMullen points to his premature attempt to appeal the denial of his suppression
motion prior to pleading guilty 1 along with certain responses to questions on his guilty plea
advisory form. In that form, McMullen marked the line for “yes” in response to the question:
“Is this a conditional guilty plea in which you are reserving your right to appeal any pre-trial
issues?” However, McMullen also marked “yes” in response to the next question which asked:
“Have you waived your right to appeal your judgment of conviction as part of your plea
agreement?” But McMullen marked “no” in response to the question asking whether he waived
the right to appeal his sentence. McMullen then marked both “yes” and “no” in response to the
next question asking whether he understood that his guilty plea would waive any factual or legal
defenses. However, nowhere in the plea advisory form did McMullen specify any pretrial ruling
that he was retaining the right to appeal, including nowhere in his recitation of the terms of the
plea agreement. The only issue McMullen identified as being subject to appeal was his sentence.
       We are not persuaded that McMullen’s pre-guilty plea notice of appeal or his responses
on the guilty plea advisory form are sufficient to demonstrate that his guilty plea was conditioned
on a right to appeal the denial of his suppression motion. Even assuming McMullen held a good
faith belief his guilty plea would not waive his right to appeal the denial of his motion to
suppress, a defendant’s subjective beliefs neither fulfill nor override the requirements of
I.C.R. 11(a)(2). Moreover, to the extent McMullen now contends that his guilty plea was not
knowing, voluntary and intelligent if his guilty plea was not conditional, the voluntariness of

1
        Prior to pleading guilty, McMullen filed his notice of appeal in this case, identifying the
lawfulness of the frisk as an issue on appeal. The appeal was conditionally dismissed for the
lack of an appealable judgment or order. After entry of McMullen’s judgment of conviction, the
conditional dismissal was withdrawn, and McMullen pursued this appeal.



                                                4
McMullen’s plea is not an issue properly before this Court because he did not challenge the
validity of his guilty plea in his opening brief, nor did he preserve such an issue in the district
court by moving to withdraw his plea. See State v. Clausen, 163 Idaho 180, 183, 408 P.3d 935,
938 (Ct. App. 2017) (declining to address issue not raised or argued in opening brief); State v.
Green, 130 Idaho 503, 506, 943 P.2d 929, 932 (1997) (declining to address validity of plea
because defendant did not seek to withdraw the guilty plea in the trial court).
       Based upon the record, we cannot conclude that McMullen entered a conditional guilty
plea. The record does not show that McMullen obtained the district court’s approval or the
prosecutor’s consent to enter a conditional guilty plea. McMullen’s premature appeal and guilty
plea advisory form do not demonstrate that he retained the right to appeal the denial of his
suppression motion as part of his guilty plea. Neither the premature appeal nor the contents of
the plea advisory form was discussed when McMullen pled guilty. Moreover, the transcripts
from the trial court proceedings do not indicate that the district court or prosecutor believed
McMullen was entering a conditional guilty plea; if anything, the record supports the opposite
conclusion. Thus, we hold that McMullen waived his right to appeal the denial of his motion to
suppress because his guilty plea did not comply with the requirements of I.C.R. 11(a)(2), and the
record does not demonstrate that his plea agreement entitled him to appeal the denial of his
motion to suppress. 2
                                                III.
                                         CONCLUSION
       McMullen failed to reserve his right to challenge the district court’s denial of his motion
to suppress. McMullen’s appeal is therefore dismissed.
       Judge GRATTON and Judge BRAILSFORD, CONCUR.




2
        Because McMullen waived his right to appeal pretrial motions, we need not address the
merits of his arguments challenging the district court’s denial of his motion to suppress.

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