Opinion
No. COA12–60.
2012-07-3
STATE of North Carolina v. John Joseph ZINKAND.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant.
Appeal by defendant from order entered 28 July 2011 by Judge Sharon Tracey Barrett in Macon County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant.
ELMORE, Judge.
John Joseph Zinkand (defendant) appeals from the trial court's 28 July 2011 order denying his motion for post-conviction DNA testing. We affirm.
On 17 November 2006, a jury found defendant guilty of three counts of statutory sex offense and two counts of crime against nature. Defendant appealed, and this Court found no error in defendant's convictions, but vacated the trial court's order classifying defendant as a sexually violent predator. State v. Zinkand, 190 N.C.App. 765, 772, 661 S.E.2d 290, 294,disc. review denied,362 N.C. 513, 668 S.E.2d 783 (2008). On 31 July 2008, defendant filed a pro se “Motion to Locate and Preserve Evidence and Motion for DNA Testing” pursuant to N.C. Gen.Stat. § 15A–269 (2011). Following an evidentiary hearing, the trial court entered an order denying defendant's motion for DNA testing on 28 July 2011. Defendant appealed.
Counsel appointed to represent defendant on appeal 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. Appellate counsel has shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 498 (1967), and State v. Kinch, 314 N.C. 99, 101–02, 331 S.E.2d 665, 666 (1985), by advising defendant of his right to file written arguments with this Court and by providing defendant with the documents necessary for him to do so.
Counsel directs our attention to two possible issues that he has considered and determined have no merit: (1) whether defendant reached an impasse with his appointed counsel as to whether the hearing should be delayed so that the trial court could address the motion for DNA testing together with a separate motion for appropriate relief; and (2) whether the trial court properly denied the motion for DNA testing when the only evidence presented at the hearing established that there was no biological material to be tested. We agree with counsel's assessment that these issues lack merit.
Further, defendant has not filed any written arguments on his own behalf with this Court and a reasonable time in which he could have done so has passed. In accordance with Anders, we have examined the record and transcript to determine whether any issues of arguable merit appear therefrom or whether the appeal is frivolous. We conclude that the appeal is wholly frivolous.
Affirmed. Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).