               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA 15-13

                              Filed: 15 September 2015

Richmond County, Nos. 12 CRS 2287, 53322

STATE OF NORTH CAROLINA

              v.

KIM LAMONT HARRIS


        Appeal by defendant from order entered 23 April 2014 by Judge Richard E.

Boner in Richmond County Superior Court. Heard in the Court of Appeals 2 June

2015.


        Attorney General Roy Cooper, by Special Deputy Attorney General Michael T.
        Wood, for the State.

        Sarah Holladay for defendant-appellant.


        DIETZ, Judge.


        In 2014, Defendant Kim Lamont Harris entered into a plea agreement with

the State and pleaded guilty to possession with intent to sell or distribute cocaine and

to attaining the status of a habitual felon.

        Earlier in his criminal proceeding, Harris moved to suppress a bag of cocaine

that law enforcement recovered from him during a pat-down search. The trial court

denied the motion. During the plea negotiations, Harris did not inform the State that

he intended to appeal the motion to suppress, and Harris did not file a notice of intent
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                                   Opinion of the Court



to appeal on that issue, a mandatory requirement to preserve the right to appeal a

suppression ruling following a guilty plea.

       After the time to appeal had expired, Harris filed an untimely, pro se notice of

appeal, seeking to appeal the denial of his motion to suppress and also a separate

denial of a motion for continuance. Harris’s court-appointed appellate counsel later

filed two petitions for writ of certiorari, asking this Court to review those same rulings

by writ of certiorari.

       For the reasons discussed below, we dismiss this appeal and deny the petitions

for writ of certiorari. A petition for a writ of certiorari may be allowed in this context

only if the defendant’s right to prosecute the appeal “has been lost by failure to take

timely action.” N.C. R. App. P. 21(a) (2014). This Court has held that when a

defendant pleads guilty without first notifying the State of the intent to appeal a

suppression ruling, the defendant “has not failed to take timely action,” and thus “this

Court is without authority to grant a writ of certiorari.” State v. Pimental, 153 N.C.

App. 69, 77, 568 S.E.2d 867, 872 (2002). Rather, as in other cases involving a guilty

plea, the right to appeal was lost because the defendant pleaded guilty, thereby

waiving the right to appeal. Id. 75-77, 568 S.E.2d at 871-72.

       We acknowledge that a more recent case, with no analysis and without

addressing Pimental, allowed a writ of certiorari in this same circumstance. State v.

Davis, ___ N.C. App. ___, 763 S.E.2d 585, 589 (2014).       But our Supreme Court has



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addressed what this Court must do when faced with two arguably inconsistent

opinions from separate panels: we must follow the earlier opinion. State v. Jones,

358 N.C. 473, 487, 598 S.E.2d 125, 133-34 (2004). Accordingly, under Pimental, we

dismiss this appeal and deny Harris’s two petitions for writ of certiorari.

                          Facts and Procedural History

       In December 2012, law enforcement stopped a car in which Defendant Kim

Lamont Harris was a passenger, based on a tip from the driver. The driver told police

that Harris had recently bought cocaine and that he had two bags of cocaine stuffed

down the back of his pants.

       An officer searched Harris and discovered the cocaine. Harris later moved to

suppress the search on the ground that police were required to obtain a warrant to

search him, and that the search was unreasonable because it briefly revealed his

naked buttocks to passers-by on the highway. Harris also moved for a continuance

on the ground that he was hearing voices and was not competent to stand trial.

       The trial court denied the motion to suppress in an order with detailed findings

of fact and conclusions of law. The court also denied the motion for a continuance,

but ordered that Harris’s mental state be evaluated to determine if he was competent

to stand trial.

       On 4 June 2014, Harris entered into a plea agreement with the State and

pleaded guilty to intent to sell or distribute cocaine and to obtaining the status of a



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habitual felon. During the plea negotiations, Harris did not inform the State that

he intended to appeal the motion to suppress, and Harris did not file a notice of

intent to appeal on that issue, a mandatory requirement to preserve the right to

appeal a suppression ruling following a guilty plea.

        The trial court sentenced Harris to 100 to 132 months imprisonment with 549

days jail credit. Harris later filed two untimely, pro se notices of appeal. His court-

appointed appellate counsel then filed a petition for writ of certiorari, asking this

Court to review the ruling on the motion to suppress. Counsel later filed a second

petition for a writ of certiorari seeking review of the denial of the motion for

continuance.

                                       Analysis

   I.      Appeal from the Denial of Motion for Continuance

        We begin by addressing Harris’s appeal from the denial of his motion for a

continuance, filed at the same time as his motion to suppress. We must dismiss this

portion of the appeal because we lack jurisdiction over it and cannot allow the petition

for a writ of certiorari.

        When a defendant pleads guilty, he waives his right to appeal on all grounds

except for a narrow set of specific issues enumerated by statute. See N.C. Gen. Stat.

§ 15A-1444(e) (2014). The denial of a motion for a continuance is not one of the narrow




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exceptions to the general rule, and thus Harris waived his right to appeal that issue

by pleading guilty.

         Moreover, a petition for a writ of certiorari in this context may be allowed only

if the right to appeal “has been lost by failure to take timely action.” N.C. R. App. P.

21(a). Here, Harris did not lose his right to appeal the motion for continuance because

he failed to take timely action—he lost that right because he chose to plead guilty.

Accordingly, we dismiss Harris’s appeal from the order denying his motion for

continuance and deny his petition for a writ of certiorari on this issue.

   II.      Appeal from Denial of Motion to Suppress

         Our authority to hear Harris’s appeal from the denial of his motion to suppress

is more complicated than it is for his motion for continuance.

         The denial of a motion to suppress is one of the narrow categories of issues that

may be appealed even after the defendant pleads guilty. N.C. Gen. Stat. § 15A-979(b)

(2014). But “[t]his statutory right to appeal is conditional, not absolute.” State v.

McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), aff’d 344 N.C. 623, 476

S.E.2d 106 (1996).      “Pursuant to this statute, a defendant bears the burden of

notifying the state and the trial court during plea negotiations of the intention to

appeal the denial of a motion to suppress, or the right to do so is waived after a plea

of guilty.” Id. “The rule in this state is that notice must be specifically given.” Id.




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      Here, Harris concedes that he did not give notice of intent to appeal the

suppression ruling before he pleaded guilty. But he asks this Court to allow his

petition for a writ of certiorari on the grounds that he intended to file notice of intent

but did not do so in a timely manner. Thus, Harris argues that his right to appeal

“has been lost by failure to take timely action” and qualifies for discretionary review

in this Court by writ of certiorari. See N.C. R. App. P. 21(a).

      The parties point to conflicting precedent from this Court concerning our

authority to allow a writ of certiorari in this circumstance. In 2014, this Court

allowed a petition for a writ of certiorari to review a suppression ruling despite the

fact that the defendant “failed to give notice during plea negotiations as to her intent

to appeal the denial of her motion to suppress.” State v. Davis, ___ N.C. App. ___, 763

S.E.2d 585, 589 (2014). There is no analysis in Davis; the Court simply granted the

petition without citing any precedent or explaining why it had the authority to allow

the petition. Id.

      More than a decade earlier, in 2002, this Court held the opposite, denying a

petition for a writ of certiorari because, in failing to file a notice of intent to appeal

before pleading guilty, “defendant has not failed to take timely action” and therefore

did not satisfy the requirement for review by writ of certiorari. State v. Pimental, 153

N.C. App. 69, 77, 568 S.E.2d 867, 872 (2002). Pimental plainly holds that because

the failure to file a notice of intent to appeal the suppression ruling before pleading



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guilty is not “fail[ure] to take timely action . . . this Court does not have the authority

to issue a writ of certiorari.” Id.

       Under well-settled Supreme Court precedent, we must ignore Davis and follow

Pimental as the earlier, binding precedent. See State v. Jones, 358 N.C. 473, 487, 598

S.E.2d 125, 133-34 (2004). In Jones, our Supreme Court held that, when faced with

two or more inconsistent panel opinions, this Court must follow the earliest opinion

because one panel of this Court cannot overrule another. Id. The Supreme Court

explained that although “a panel of the Court of Appeals may disagree with, or even

find error in, an opinion by a prior panel and may duly note its disagreement or point

out that error in its opinion, the panel is bound by that prior decision until it is

overturned by a higher court.” Id.

       Simply put, unless the Pimental holding is overturned by our Supreme Court,

we are bound to follow it in all future cases, even if other panels of our Court have

not. Under Pimental, we lack authority to allow the petition for a writ of certiorari

to review the suppression ruling.

       We also note, however, that in our view, Pimental is correct. In previous cases,

we have stressed the importance of the notice of intent to appeal as a way to alert the

State, during the plea bargaining process, that the defendant may seek to appeal the

denial of the motion to suppress. As we previously have observed, it could damage




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the integrity of the plea bargaining process if defendants could so easily circumvent

the requirement that the State be informed of the intent to appeal:

          Once a defendant strikes the most advantageous bargain possible
          with the prosecution, that bargain is incontestable by the state
          once judgment is final. If the defendant may first strike the plea
          bargain, “lock in” the State upon final judgment, and then appeal
          a previously denied suppression motion, it gets a second bite at
          the apple, a bite usually meant to be foreclosed by the plea
          bargain itself.

McBride, 120 N.C. App. at 626, 463 S.E.2d at 405. Thus, even if Pimental were not

binding here—and it is—we would follow its reasoning. Accordingly, we must deny

Harris’s petition for a writ of certiorari on this ground.

                                      Conclusion

       We dismiss Defendant Kim Lamont Harris’s appeal and deny his two petitions

for writ of certiorari.

       DISMISSED.

       Judges BRYANT and STEPHENS concur.




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