Opinion
No. COA09-1296
Filed 15 June 2010 This case not for publication
Appeal by defendant from order entered 25 March 2009 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 12 April 2010.
Roy Cooper, Attorney General, by Daniel P. O'Brien, Assistant Attorney General, for the State. Staples Hughes, Appellate Defender, by Daniel Shatz, Assistant Appellate Defender, for defendant-appellant.
Alamance County Nos. 83 CRS 16485-88.
Defendant was convicted in 1984 of the first-degree murder of Richard Braxton, second-degree burglary, felonious breaking or entering, felonious larceny, robbery with a dangerous weapon, and felonious conspiracy to commit robbery with a dangerous weapon. See State v. Barts, 316 N.C. 666, 670, 675, 343 S.E.2d 828, 832, 835 (1986). Upon appeal, the North Carolina Supreme Court found no error. See id. at 698, 343 S.E.2d at 848. A recitation of the evidence presented at the trial, recounting the brutality of the crimes and defendant's complicity therein, may be found in the Supreme Court's opinion. See id. at 671-75, 343 S.E.2d at 832-35.
On 16 March 2009, defendant, pro se, filed a paper writing entitled "Motion to Locate and Preserve Evidence; Motion for DNA Testing; and Motion for Appointment of Counsil [sic]" in superior court, reciting that it was filed pursuant to N.C.G.S. §§ 15A-266 and 15A-267 to -270. On 25 March 2009, the trial court entered its order in which it denied defendant's requests after finding that, "having reviewed [defendant's] filing, the referenced files and the statutory requirements for the DNA Testing relief sought, [the court] is of the opinion that the filing is, on its face, insufficient to allow [it] to appoint counsel or to allow the performance of DNA Testing." Defendant gave timely written notice of appeal to this Court from the trial court's order.
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Defendant contends the trial court erred when it denied his request for the appointment of counsel pursuant to N.C.G.S. § 15A-269(c).
N.C.G.S. § 15A-269(c) provides:
The court shall appoint counsel for the person who brings a motion under this section if that person is indigent. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner upon a showing that the DNA testing may be material to the petitioner's claim of wrongful conviction.
N.C. Gen. Stat. § 15A-269(c) (2009) (emphasis added). Thus, according to the plain language of the statute, a trial court is required to appoint counsel for a defendant bringing a motion under this section only if the defendant makes a showing (1) of indigence and (2) that the DNA testing is material to defendant's claim that he or she was wrongfully convicted.
However, the second sentence of N.C.G.S. § 15A-269(c) — explicitly providing that a defendant must make a showing of materiality as a condition precedent to a trial court's statutory obligation to appoint counsel — was added by the General Assembly in Section 5 of Session Law 2009-203, three months after defendant's March 2009 filing. See 2009-2 N.C. Adv. Legis. Serv. 87, 91-92 (LexisNexis). Consequently, defendant argues that, at the time of his 16 March 2009 filing, he was required to allege only that he was indigent and "fil[e] a motion under the statute" to satisfy the conditions that would obligate the trial court to appoint counsel pursuant to N.C.G.S. § 15A-269(c). According to his argument, the statute in effect at the time of his filing did not impose "any qualifying language regarding the contents of the motion other than that the motion must be a motion `under this section.'" We do not agree with his interpretation.
At the time of defendant's filing, N.C.G.S. § 15A-269(a) provided that "[a] defendant may make a motion" under N.C.G.S. § 15A-269(a) for the performance of DNA testing of any biological evidence that meets all of the following conditions:
(1) Is material to the defendant's defense.
(2) Is related to the investigation or prosecution that resulted in the judgment.
(3) Meets either of the following conditions:
a. It was not DNA tested previously.
b. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
N.C. Gen. Stat. § 15A-269(a). According to the statute in effect both today and at the time of defendant's filing, before a trial court may grant a motion made pursuant to N.C.G.S. § 15A-269(a), the trial court must conclude, among other things, that "[t]he conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of [N.C.G.S. § 15A-269 — as excerpted above — ]have been met." N.C. Gen. Stat. § 15A-269(b)(1). Thus, because a condition precedent to a trial court's statutory authority to grant a motion under N.C.G.S. § 15A-269 is that the conditions of subsection (a) must be met, we conclude that the General Assembly's amendment to subsection (c) in 2009 only made explicit that which was already implied by the language of the statute when read in its entirety — that, at the time of defendant's March 2009 filing, a defendant's motion was properly brought under N.C.G.S. § 15A-269(a) only when a defendant sufficiently alleged each of the conditions set forth in subsection (a), including the condition that the defendant show the materiality of the DNA testing to his or her defense. Because accepting this defendant's interpretation of what constitutes "bring[ing] a motion" under N.C.G.S. § 15A-269 requires that we accept the unlikely premise that the General Assembly intended only to require that a defendant's indigence be the threshold condition for appointment of counsel pursuant to N.C.G.S. § 15A-269(c), without regard to whether such a defendant had any basis for bringing a motion requesting postconviction DNA testing under N.C.G.S. § 15A-269(a), we find defendant's argument unpersuasive.
In his paper writing, defendant alleged he was indigent and indicated that his "motions" were made pursuant to five enumerated statutory provisions — one of which was N.C.G.S. § 15A-269. Although it appears defendant attempted to address the conditions set forth in N.C.G.S. § 15A-269(a)(2)-(3) in his filing, he made no showing, as he concedes, relating to how the requested DNA testing would have been material to his defense as required by the condition set forth under N.C.G.S. § 15A-269(a)(1). Therefore, we conclude that defendant did not comply with each of the statutory requirements for a proper motion under N.C.G.S. § 15A-269, and did not meet the threshold statutory requirements that we have determined must be met in order to obligate the trial court to grant defendant's request for appointment of counsel under N.C.G.S. § 15A-269(c). Accordingly, we conclude the trial court did not err by determining that defendant's filing was insufficient to allow the grant of his request for the appointment of counsel pursuant to N.C.G.S. § 15A-269(c).
For the same reason, we reject defendant's remaining assignment of error by which he contends the trial court erred in denying his request for DNA testing. Since defendant concedes that he did not address the materiality of the DNA testing to his defense in his filing, and because he further admits he did not provide the trial court with a signed, sworn affidavit of innocence in accordance with N.C.G.S. § 15A-269(b)(3), see N.C. Gen. Stat. § 15A-269(b)(3) (providing that one of the three conditions precedent for a trial court to grant a defendant's motion for postconviction DNA testing is the court's determination that the defendant "has signed a sworn affidavit of innocence"), we conclude the trial court did not err by determining that defendant's filing was insufficient to allow his request seeking postconviction DNA testing pursuant to N.C.G.S. § 15A-269.
Our disposition renders it unnecessary to address defendant's remaining arguments. We note, however, that since the trial court determined that defendant's filing was legally insufficient on its face to permit the appointment of counsel and require the performance of DNA testing, the remaining portion of the court's order — in which the court takes judicial notice of excerpts from the Supreme Court's opinion in State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986), and determines that "the performance of DNA Testing could not be `material to the defendant's defense,' as it could not remove the defendant from a crime scene at which he had, in sworn testimony at trial, placed himself" — is mere surplusage and should be treated as such.
Affirmed.
Judges JACKSON and BEASLEY concur.
Report per Rule 30(e).