State v. Boyette ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-904
No. COA21-612
Filed 29 December 2022
Caldwell County, Nos. 11 CRS 050354, 14 CRS 000891
STATE OF NORTH CAROLINA
v.
GLENN SPENCER BOYETTE, Jr., Defendant.
Appeal by Defendant from judgments entered 30 April 2021 by Judge Daniel
A. Kuehnert in Caldwell County Superior Court. Heard in the Court of Appeals 10
August 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Kayla D.
Britt, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
Katz, for defendant-appellant.
MURPHY, Judge.
¶1 Rule 4 of the North Carolina Rules of Appellate Procedure authorizes appeal
in criminal cases via written notice of appeal filed with the Clerk of Court. Such
written notice may be filed at any time between (1) the date of the rendition of the
judgment or order and (2) the fourteenth day after entry of the judgment or order.
Where a written order exists, the date of entry of the judgment or order is when the
judge’s written order is filed with the Clerk of Court. Here, the trial court’s order was
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2022-NCCOA-904
Opinion of the Court
filed by the Clerk of Court on 24 May 2021. The next day, on 25 May 2021, Defendant
filed his written notice of appeal. Since Defendant filed his written notice of appeal
within the fourteen-day period allowed by Rule 4, Defendant’s appeal was timely, and
we deny the State’s Motion to Dismiss Appeal.
¶2 Evidence procured in contravention of the Fourth and Fourteenth
Amendments is not subject to the exclusionary rule at probation revocation hearings,
and we reject Defendant’s arguments that the trial court erred by not suppressing
evidence allegedly obtained in violation of his constitutional rights.
BACKGROUND
¶3 On 16 July 2015, Defendant, pursuant to a plea arrangement, pled guilty to
possession of stolen goods and manufacturing methamphetamine. On 3 September
2015, Defendant received a sentence of 73 to 100 months, suspended for 60 months
of supervised probation, for the manufacturing methamphetamine charge. The same
day, the trial court sentenced Defendant to a consecutive term of 6 to 8 months for
the possession of stolen goods charge, which was also suspended for 60 months of
supervised probation.
¶4 Around 1:40 a.m. on 25 May 2020, two Sheriff’s deputies, Corporal Robbins
and Sergeant Knupp, were at the Yadkin Valley Fire Department on Highway 268
when they saw a yellow Ford pickup truck drive past them toward the Wilkes County
Line. Approximately 10 to 15 minutes later, they saw the truck come back with a
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2022-NCCOA-904
Opinion of the Court
lawnmower in the bed. The officers thought it was unusual for someone to pick up a
lawnmower so early in the morning, and they began following the truck in separate
patrol cars. They followed Defendant in his truck for about 5 to 8 minutes, and Cpl.
Robbins initiated a traffic stop after the truck crossed the middle line and went 55
mph in a 35 mph zone.
¶5 After stopping the Defendant at the Hillbilly Trading Post, Cpl. Robbins
approached Defendant and retrieved his driver’s license. Sgt. Knupp checked
Defendant’s information because Cpl. Robbins was having difficulty with his radio.
While Sgt. Knupp was checking Defendant’s information, Cpl. Robbins conducted a
“free-air sniff” of the truck with his K-9. The dog completed two circles around the
truck; and, although he sniffed “intense[ly]” in a few places, he never alerted. During
the free-air sniff, Sgt. Knupp was told by dispatch that Defendant was on probation
and had a suspended license, and Sgt. Knupp relayed this information to Cpl.
Robbins. Sgt. Knupp also confirmed Defendant’s probation status, found Defendant
was subject to warrantless searches, and informed Cpl. Robbins of that information.
Cpl. Robbins then went back to Defendant and told him he was subject to warrantless
searches, which Defendant confirmed.
¶6 Cpl. Robbins asked Defendant to exit the vehicle and frisked him for weapons.
No weapons were found on Defendant’s person. Cpl. Robbins then searched the
vehicle while Defendant stood with Sgt. Knupp. In the vehicle, Cpl. Robbins found a
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2022-NCCOA-904
Opinion of the Court
single-shot shotgun, two glass smoking pipes, a straw, and two plastic baggies
containing a “crystal substance.” The North Carolina State Crime Lab results later
revealed the crystal substance was methamphetamine. Neither Sgt. Knupp nor Cpl.
Robbins recalled whether Defendant was the registered owner of the truck.1
¶7 Subsequently, on 17 and 27 May 2020, Defendant’s probation officer filed
probation violation reports with the trial court, alleging Defendant had violated the
revocation-eligible condition of probation not to commit a criminal offense and
indicating Defendant was found in possession of a firearm and methamphetamine.
The alleged probation violations came before the trial court for hearing on 30 April
2021. At the hearing, the trial court revoked Defendant’s probation in both cases and
activated his suspended sentences but modified them to run concurrently. Defendant
gave written notice of appeal on 25 May 2021; and, on 25 April 2022, the State filed
a Motion to Dismiss Appeal, arguing Defendant’s appeal was untimely.
ANALYSIS
¶8 On appeal, Defendant contends the trial court erred by not suppressing the
evidence found during the search of the truck. The State’s Motion to Dismiss Appeal,
however, claims Defendant failed to timely appeal. Accordingly, we first address the
1At some point during the stop, both officers asked Defendant about the lawnmower
and other tools in the back of the pickup. Defendant said they were his, and the officers did
not proceed with an investigation.
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State’s Motion to Dismiss Appeal and then whether the trial court erred by not
suppressing the evidence found in the search of the truck.
A. State’s Motion to Dismiss Appeal
¶9 The North Carolina Rules of Appellate Procedure provide:
Any party entitled by law to appeal from a judgment or
order of a [S]uperior or [D]istrict [C]ourt rendered in a
criminal action may take appeal by: (1) giving oral notice
of appeal at trial, or (2) filing notice of appeal with the
[C]lerk of [S]uperior [C]ourt and serving copies thereof
upon all adverse parties within fourteen days after entry of
the judgment or order . . . .
N.C. R. App. P. 4(a) (2021). According to the relevant portion of N.C.G.S. § 15A-1347,
a defendant has the right to appeal “[w]hen a [S]uperior [C]ourt judge, as a result of
finding . . . a violation of probation, activates a sentence or imposes special probation.”
N.C.G.S. § 15A-1347(a) (2021). Also, in a criminal case, a “[j]udgment is entered when
[a] sentence is pronounced.” N.C.G.S. § 15A-101(4a) (2021). The State argues that,
in a probation-revocation case, judgment is entered when the trial court orally
announces it is activating a suspended sentence.
¶ 10 “Compliance with the requirements for entry of notice of appeal is
jurisdictional.” State v. Oates, 366 N.C. 264, 266 (2012) (citing Dogwood Dev. &
Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197-98 (2008)). “We review issues
relating to subject matter jurisdiction de novo.” Id. (citing Harris v. Matthews, 361
N.C. 265, 271 (2007)).
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Opinion of the Court
¶ 11 In support of its argument, the State relies on our opinion in State v. Yonce. In
that case, a defendant was sentenced to 15 to 18 months imprisonment, which the
trial court suspended in favor of supervised probation for five years. State v. Yonce,
207 N.C. App. 658, 659 (2010), disc. rev. denied, 365 N.C. 80 (2011). A little over five
months into his probation, the defendant’s probation officer filed violation notices.
Id. On 27 October 2008, a violation hearing was held. Id. at 660. The trial court
found the defendant had willfully violated the terms and conditions of his probation
but gave the defendant until 1 December 2008 to come into compliance and scheduled
a review hearing on 8 December 2008. Id. The trial court also found that,
if [the] [d]efendant fully complied with the monetary
payment provisions of the original judgments by 1
December 2008, his active [prison] sentences should not be
put into effect. On the other hand, if [the] [d]efendant
failed to “be in full and complete compliance” on 8
December 2008, his prison sentences should be activated
immediately.
Id. At the review hearing, the trial court “ordered that [the] [d]efendant begin serving
his active sentences.” Id. at 661. On 12 December 2008, the defendant gave notice
of his appeal, which “allude[d] to the 8 December 2008 order,” but his arguments on
appeal “primarily focused on the 27 October 2008 order.” Id. at 661-63. After noting
that N.C.G.S. § 15A-101 prescribed that judgment is entered when the sentence is
pronounced, we reasoned the “[trial court] entered a final judgment when [the judge]
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ordered that [the] [d]efendant’s ‘sentences [be put] into effect’ on 27 October 2008.”
Id. at 663. We then held,
[s]ince [the] [d]efendant did not note his appeal to this
Court until 12 December 2008, a date substantially more
than fourteen days following the entry of [the trial court]’s
order [on 27 October 2008], this Court lacks jurisdiction
over [the] [d]efendant’s challenge to the revocation of his
probation as embodied in [the trial court]’s order and has
no authority to consider [the] [d]efendant’s challenge to
that decision.
Id.
¶ 12 Here, the trial court found Defendant had willfully violated his conditions of
probation by being in possession of a firearm and methamphetamine, and it
pronounced the activation of Defendant’s suspended sentences at the end of the
probation violation hearing on 30 April 2021. While it is true N.C.G.S. § 15A-101
purports to dictate that judgment is entered when the sentence is pronounced, in
State v. Oates, our Supreme Court explained that Rule 4 of the North Carolina Rules
of Appellate Procedure governs appeals in criminal cases. See Oates, 366 N.C. at 268.
The Court continued,
we believe Rule 4 authorizes two modes of appeal for
criminal cases. The Rule permits oral notice of appeal, but
only if given at the time of trial . . . . Otherwise, notice of
appeal must be in writing and filed with the clerk of court.
Such written notice may be filed at any time between the
date of the rendition of the judgment or order and the
fourteenth day after entry of the judgment or order. Here,
the suppression order was rendered on 15 December 2009
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when the trial judge stated, “I’m going to enter the order
suppressing,” thereby deciding the issue before him. The
order was entered on 22 March 2010 when the clerk of the
superior court in Sampson County filed the judge’s written
order in the records of the court. As a result, the span
within which the State could have filed its written notice of
appeal extended from 15 December 2009 until 5 April 2010.
The State’s 22 December 2009 appeal was timely.
Id. (citations omitted). The State’s motion is controlled by Oates and not our earlier
holding in Yonce. The trial court rendered its decision at the hearing on 30 April
2021. The order was entered, however, on 24 May 2021 when the order was filed with
the Clerk of Court. Like in Oates, where the delayed entry of the order extended the
time to appeal, the delayed entry in this case also extended the time Defendant had
to appeal. As a result, the filing of Defendant’s notice of appeal on 25 May 2021—one
day after the entry of the order—was timely. We therefore deny the State’s Motion
to Dismiss Appeal.
B. Evidence Found in the Search of the Truck
¶ 13 Defendant provides three arguments in support of his contention the evidence
found during the search of the truck should have been suppressed by the trial court:
(1) the search of the truck by Cpl. Robbins was not supported by reasonable suspicion
and therefore violated the Fourth Amendment; (2) the search of the truck was not
authorized by N.C.G.S. § 15A-1343(b)(14); and (3) Defendant did not consent to the
search of his truck.
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¶ 14 However, as each of these arguments incorrectly assumes that the
exclusionary rule applies during probation revocation proceedings, they are all
without merit.2 In 1982, our Supreme Court held “that evidence which does not meet
the standards of the [F]ourth and [F]ourteenth [A]mendments to the United States
Constitution may be admitted in a probation revocation hearing.” State v. Lombardo,
306 N.C. 594, 602 (1982). In addition, N.C.G.S. § 15A-1345 states, in relevant part,
“[f]ormal rules of evidence do not apply at the [probation revocation] hearing . . . .”
N.C.G.S. § 15A-1345(e) (2021); see also State v. Murchison, 367 N.C. 461, 464 (2014)
(marks and citations omitted) (“[O]ur Rules of Evidence, other than those concerning
privileges, do not apply in proceedings for sentencing, or granting or revoking
probation.”). Thus, regardless of whether the search would have passed
constitutional muster if offered as the basis for the admission of evidence at a trial on
the new offenses, the trial court did not err by admitting the evidence at Defendant’s
probation revocation hearing.
CONCLUSION
¶ 15 Our Supreme Court has made it clear that defendants in a criminal proceeding
2 While Defendant’s brief only cursorily refers to the Fourth Amendment in the course
of these arguments, the caselaw he cites and the underlying rationale of his arguments are
necessarily based on the Fourth Amendment exclusionary rule. Furthermore, Defendant
acknowledges in a container paragraph for the section containing all three arguments that
he is arguing the search “violated his rights under the United States and North Carolina
Constitutions.”
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may file written notice of appeal within fourteen days of a trial court’s order being
filed in the records of the court by the Clerk of Court. Defendant did so, and we deny
the State’s Motion to Dismiss Appeal. Furthermore, at a probation revocation
hearing, the Fourth Amendment’s exclusionary rule for evidence does not apply.
Accordingly, the trial court did not abuse its discretion by admitting the evidence
obtained in the search of the truck.
NO ERROR.
Judge CARPENTER concurs.
Judge JACKSON concurs as to part A and concurs in result only as to part B.