State v. Jolliff ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-422
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 13 CRS 212414
BRIAN MANUEL JOLLIFF
Appeal by defendant from judgment entered 31 October 2013
by Judge R. Allen Baddour in Wake County Superior Court. Heard
in the Court of Appeals 25 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
Russell J. Hollers, III, for defendant-appellant.
CALABRIA, Judge.
Brian Manuel Jolliff (“defendant”) appeals from a judgment
entered upon defendant’s plea of guilty to the offenses of
habitual driving while impaired (“DWI”) and driving while
license revoked (“DWLR”). We dismiss the appeal.
At approximately 2:00 a.m. on 26 May 2013, Officer James
Boyd (“Officer Boyd”) of the Raleigh Police Department (“RPD”)
initiated a traffic stop of a vehicle that was registered to a
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woman whose driver’s license was expired. As he approached the
vehicle, Officer Boyd smelled a “moderate” odor of alcohol.
Defendant was seated in the driver’s seat, and Officer Boyd
noted that defendant’s eyes were bloodshot and glassy. As a
result, he began an investigation for a possible DWI offense.
Officer Boyd asked defendant for identification. Defendant
informed the officer that he did not have a driver’s license
with him, but that his name was “Brandon Banks[.]” Defendant’s
speech was slurred. Officer Boyd ordered defendant out of the
car and frisked him. Defendant then consented to a search of
the car. During the search, Officer Boyd discovered a bank
card with defendant’s name in the driver’s side door pocket.
Officer Boyd searched the name on the bank card in the
Department of Motor Vehicle’s database, which produced a
photograph of defendant. Defendant failed to perform a series
of field sobriety tests, and Officer Boyd formed the opinion
defendant was appreciably impaired and placed him in custody.
Defendant was transported to the Wake County Public Safety
Center (“WCPSC”) where Officer Gregory Modetz (“Officer
Modetz”), a licensed chemical analyst for RPD, asked him for a
breath sample. Upon defendant’s refusal, Officer Modetz
obtained a search warrant permitting him to take a sample of
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defendant’s blood. Officer Modetz prepared the blood draw kit
and observed a registered nurse from the WCPSC obtain two vials
of defendant’s blood. Officer Modetz labeled both vials, and
placed an “integrity seal” and a white seal over the samples.
He then put the sealed vials back into the blood draw kit, which
was sealed in another plastic bag. Officer Modetz then
transported the sealed package to the RPD’s downtown office,
where he placed the sealed package in a refrigerated evidence
locker. The sealed package was subsequently moved by an unknown
individual from the refrigerated evidence locker to a larger
refrigerator located one floor down from the evidence locker.
On 5 June 2013, RPD Evidence Specialist Curtis King
(“King”) removed defendant’s sealed evidence from the large
refrigerator and transported it to the Raleigh/Wake City-County
Bureau of Identification (“CCBI”) for analysis. A CCBI evidence
technician assigned a CCBI number to defendant’s sealed blood
tubes, which were then locked in an individual compartment of a
CCBI refrigerator. CCBI forensic chemist Irvin Alcox (“Alcox”)
later removed defendant’s blood vials from the locked
refrigerator compartment and tested the blood for alcohol
concentration. The test results reflected an alcohol
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concentration of .21 grams of alcohol per 100 milliliters of
blood.
Defendant was indicted for felony DWI, habitual DWI, and
DWLR. Beginning 29 October 2013, defendant was tried by a jury
in Wake County Superior Court. On 30 October 2013, defendant
pled guilty to the offenses of habitual DWI and DWLR. Trial
continued for the remaining DWI charge. Alcox testified at
trial, over defendant’s objection, regarding the results of
defendant’s blood test. Later that afternoon, the jury returned
a verdict finding defendant guilty of DWI. The trial court
arrested judgment on the DWI offense. The court then
consolidated the remaining offenses and sentenced defendant to a
minimum of fifteen months to a maximum of twenty-seven months in
the North Carolina Division of Adult Correction. Defendant
appeals.
Defendant’s sole argument on appeal is that the trial court
erred by allowing the results of his blood test into evidence
over defendant’s objection. Specifically, defendant contends
that there was a break in the chain of custody when the test
tubes were moved from the refrigerated evidence locker to the
larger refrigerator which rendered the blood test results
inadmissible. Since defendant’s argument is not authorized by
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N.C. Gen. Stat. § 15-1444 (2013) as an appropriate ground for
appeal after a guilty plea, we dismiss this argument.
“In North Carolina, a defendant's right to pursue an appeal
from a criminal conviction is a creation of state statute.”
State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404
(1995), aff'd per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).
Pursuant to N.C. Gen. Stat. § 15A-1444, “a defendant who has
entered a plea of guilty is not entitled to appellate review as
a matter of right, unless the defendant is appealing sentencing
issues or the denial of a motion to suppress, or the defendant
has made an unsuccessful motion to withdraw the guilty plea.”
State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870
(2002).
In the instant case, the judgment entered against defendant
was based upon the offenses of habitual DWI and DWLR. Defendant
pled guilty to both of these offenses. The trial court arrested
judgment on the DWI conviction, which was the only offense that
was decided by a jury verdict, which would have permitted a
broader right of appeal. Since defendant appeals from a
judgment entered only upon guilty pleas and does not argue any
of the grounds permitted by N.C. Gen. Stat. § 15A-1444, we are
compelled to dismiss this appeal.
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We briefly note that it appears that counsel and the trial
court below were acting under a misapprehension of law when
defendant entered his guilty plea to habitual DWI. The
transcript of plea and the plea colloquy both refer to defendant
“admitting” the “status of an habitual offender” and seem to
indicate that the trial court and counsel believed that
defendant’s plea would merely enhance his potential conviction
for the DWI offense. However, it is well established that “the
offense of habitual impaired driving as defined by G.S. § 20-
138.5 constitutes a separate substantive felony offense which is
properly within the original exclusive jurisdiction of the
superior court.” State v. Priddy, 115 N.C. App. 547, 548, 445
S.E.2d 610, 612 (1994). Nonetheless, the type of effect, if
any, this misapprehension of law had on the validity of
defendant’s plea is not properly before us. Defendant’s appeal
is dismissed.
Dismissed.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).