Opinion
No. COA15–702.
01-05-2016
STATE of North Carolina v. Michael Dorsey NEEDHAM.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Opinion
Appeal by defendant from order entered 10 February 2015 by Judge Forrest Donald Bridges in Lincoln County Superior Court. Heard in the Court of Appeals 28 December 2015.
BRYANT, Judge.
Where defendant provides no explanation as to how further DNA testing would exonerate him in light of the evidence presented at trial, and where defendant has been unable to show that any DNA testing would be material to his defense, we affirm the order of the trial court denying defendant's motion.
On 18 November 2010, defendant was convicted by a jury of first-degree rape of a child, first-degree sex offense of a child, indecent liberties with a child, and second-degree sex offense. The convictions are related to sexual encounters between defendant and his daughter, Alice. The trial court sentenced defendant to two consecutive terms of 336 to 413 months, a consecutive term of 116 to 149 months, and a concurrent term of 21 to 26 months. In four separate orders, the trial court also ordered defendant to register as a sex offender and enroll in satellite-based monitoring upon release from prison. Defendant appealed, and this Court found no prejudicial error as to defendant's convictions, but vacated two of the four satellite-based monitoring orders in Cases Nos. 09–CRS–052253 and 09–CRS–052254 because defendant's convictions in those cases did not fit under the category requiring mandatory enrollment in SBM under N.C. Gen.Stat. § 14–27.2A & –27.4A (2009). State v. Needham, No. COA11–892, 2012 WL 380374, *7 (N.C.Ct.App. Feb. 7, 2012) (unpublished).
A pseudonym has been used to protect the identity of the minor child pursuant to N.C. R.App. P. 3.1 (2013).
On 27 January 2015, defendant filed a pro se motion for post-conviction DNA testing pursuant to N.C. Gen.Stat. § 15A–269 (2013), requesting DNA testing of approximately eighteen items which were either not previously subjected to testing or could be subjected to more accurate testing. The superior court summarily denied defendant's motion on 10 February 2015 without conducting a hearing.
On 4 March 2015, defendant filed a pro se notice of appeal. Defendant's notice of appeal was not timely filed and failed to fully comply with the requirements of Rule 4 of the North Carolina Rules of Appellate Procedure. Defendant, however, has filed an alternative petition for writ of certiorari acknowledging those deficiencies. In the interest of justice, we hereby allow his petition and deny the State's motion to dismiss defendant's appeal.
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Counsel appointed to represent defendant has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that she has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so.
Defendant has filed a pro se brief in which he claims: (1) that the superior court erroneously found that he did not file an affidavit of innocence; (2) that his current appellate attorney is biased against him; and (3) that he has medical records of his daughter's which will prove his innocence.
Defendant is correct in his assertion that the superior court erroneously found that he failed to file an affidavit of innocence. The superior court made the following finding: “Although Defendant recites that he has filed an Affidavit of Innocence, there is no such affidavit attached to the Defendant's motion, nor is there such an affidavit anywhere on file with the Clerk.” Our review of the record on appeal indicates that an affidavit of innocence was attached to the motion for DNA testing. Therefore, the superior court's finding appears to be in error.
Nonetheless, the superior court did not err in denying defendant's post-conviction motion for DNA testing as meritless. A defendant seeking relief under N.C. Gen.Stat. § 15A–269 must demonstrate that the evidence in question is “material to the defendant's defense.” N.C. Gen.Stat. § 15A–269(a)(1). A defendant bears the burden of showing materiality. State v. Gardner, 227 N.C.App. 364, 369, 742 S.E.2d 352, 356 (2013). “[T]his burden requires more than the conclusory statement that the ability to conduct the requested DNA testing is material to the defendant's defense.” Id. (citation and internal quotation marks omitted). “Favorable evidence is material if there is a reasonable probability that its disclosure to the defense would result in a different outcome in the jury's deliberation.” State v. Hewson, 220 N.C.App. 117, 122, 725 S.E.2d 53, 56 (2012) (citations and internal quotations omitted).
In defendant's motion before the trial court, he made only a conclusory statement that DNA testing would be material to his defense. He provides no explanation as to how further DNA testing would exonerate him in light of the evidence presented at trial. Accordingly, defendant failed to show that any DNA testing would be material to his defense. Therefore, we find no prejudicial error in the superior court's denial of defendant's motion for DNA testing.
Defendant's second argument—that his current attorney is biased against him—is akin to an ineffective assistance of appellate counsel claim. In a “Supporting Arguement [sic]” filed with this court on 14 July 2015, defendant argues that his appellate counsel is biased against him because she failed to answer questions regarding a “Motion for Production of Culpatory, Inculpatory, Exculpatory, and Inclusive Evidence.” Also, according to defendant, appellate counsel “repeatedly told [him] that she is paid $75.00 per hour implying her time is to [sic] valuable to be bothered with [defendant's] innocence.”
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 538 U.S. 986, 155 L.Ed.2d 681 (2003).
To the extent we generously read defendant's argument as a claim of ineffective assistance of counsel, not only has defendant failed to show that appellate counsel's performance “fell below an objective standard of reasonableness,” but defendant also is unable to establish prejudice because there was as yet no outcome or “result of the proceeding” to contest at the time defendant made his ineffective assistance of counsel claim. See id.
In his last argument, defendant appears to claim that he is in possession of exculpatory evidence, namely medical records which allegedly indicate that Alice was not sexually active. These medical records were not listed in defendant's motion for DNA testing, and the records themselves cannot be subjected to DNA testing in any event. Accordingly, defendant's second and third arguments are dismissed as not appropriate for review.
In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. See 386 U.S. at 744, 18 L.Ed.2d at 498. Because defendant has raised only issues which are meritless or which he is not entitled to raise on appeal from an order denying post-conviction DNA testing, we conclude the appeal is wholly frivolous. Furthermore, we have examined the record for possible prejudicial error and found none.
AFFIRMED.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).