Criminal Practice — Guilty Plea – Motion to Suppress – Appeals – Sentencing – SBM

Where defendant (1) gave oral notice of his intent to appeal the denial of his motion to suppress after he pled guilty and the trial court announced his sentence and (2) did not file a written notice of appeal or indicate he was appealing his final judgment, defendant failed to properly raise his conditional right to appeal under G.S. § 15A-979(b).

We deny defendant’s petition for writ of certiorari and dismiss his appeal.

Defendant was charged with multiple offenses in multiple indictments. In his petition for writ of certiorari, he raises two arguments pertaining to sentencing: (1) that the terms of his plea were unfulfillable because he could not be lawfully sentenced for Class B1 incest on an indictment that charged Class F incest and (2) that the court erred by sentencing defendant at a Class B1 offense instead of a Class E offense.

First, the Class B1 incest charge that defendant references is not one of the five B1 felonies he received an active sentence for. In fact, the only charge from the indictment at issue which defendant was given an active sentence for was a Class D felony.

Regarding defendant’s second sentencing argument, the trial court recited a Class E felony listed on the indictment then announced a sentence that corresponded with the length of a Class B1 felony sentence; however, the indictment included a Class B1 felony. It appears clear from the record that this error was a lapsus linguae where the trial court simply read the incorrect charge off the indictment. Defendant has not shown good or sufficient cause, or that reversible error was probably committed below. We deny the petition for writ of certiorari as to these issues.

A criminal defendant has a right to be present at the time his sentence is imposed and when any substantive charges are made to the sentence. Here, the trial court announced defendant’s active sentences and their corresponding charges while defendant was present and then asked the clerk of consolidate the remaining charges into the announced sentence. Defendant argues his rights were violated when the clerk consolidated the remaining charges out of his presence. To the extent any error may have occurred, defendant was not prejudiced.

Finally, we deny defendant’s petition as to the trial court’s imposition of satellite-based monitoring without prejudice so that defendant may pursue a motion for appropriate relief in the trial court.

Denied and dismissed.

State v. Helms (Lawyers Weekly No. 012-231-21, 8 pp.) (Fred Gore, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Neil Dalton for the state; Nicholas Woomer-Deters for defendant. 2021-NCCOA-384