On 25 September 2000, defendant, a former assistant principal
at a middle school, was indicted for attempted second degree rape
of a former student, R.T. Defendant was convicted on that charge
on 15 November 2001, and Judge Thomas D. Haigwood sentenced him to
a presumptive sentence of 58 months to 79 months imprisonment.
Defendant did not timely notice appeal, but on 24 April 2002,
defendant filed a petition for writ of certiorari in this Court,
seeking a belated appeal based upon ineffective assistance of
counsel. This Court allowed the belated appeal and subsequently
upheld defendant's conviction and sentence. State v. Brown, 163
N.C. App. 784, 595 S.E.2d 238 (2004) (unpublished). A full account
of the facts are set forth in that opinion.
The facts pertinent to this appeal are as follows. On 11
September 2000, R.T. was at home with her two-year old son. At
approximately 2:30 p.m., defendant knocked at R.T.'s door. After
defendant entered R.T.'s home, he asked to use her bathroom. When
he returned from the bathroom, he made various sexually-related
remarks and rubbed his penis through his shorts in front of R.T.,
causing R.T. to ask defendant to leave. Defendant then asked to
use the bathroom a second time, and R.T. attempted to call her
father while defendant was in the bathroom. Defendant, however,
knocked the phone out of her hand and pushed her against a kitchenbar with his body. He attempted to kiss R.T., ripped her t-shirt
open, fondled her breasts, and then threw her to the floor. He
struck R.T. in the face, unfastened her jeans, and pulled out his
penis. R.T. testified that she never actually saw his penis, but
she felt it pressing against her stomach. When R.T. kicked
defendant between his legs, defendant got up, banged his head
against a lamp, and ran out of the apartment while pulling his
shorts up.
Defendant admitted at trial that he had been in R.T.'s house,
but testified that they had simply had a conversation. He denied
engaging in any of the sexual conduct to which R.T. testified.
Specifically, defendant denied ever trying to kiss R.T., ripping
her shirt, touching her breasts, throwing her to the ground,
unfastening her pants, or rubbing and exposing his penis to her.
On 15 November 2001 _ the same day that the jury found
defendant guilty of attempted second degree rape _ Judge Haigwood
signed an "Order for Disposition of Physical Evidence." In the
order, the court directed that certain items of evidence _ an
orange t-shirt and a pair of black jeans _ should be returned to
R.T. or disposed of in accordance with the law. On 26 December
2001, after defendant had failed to appeal his conviction, the
shirt and jeans were turned over to Velvet Blizzard of the
Washington Police Department.
On 23 April 2002 _ a day prior to filing his petition for writ
of certiorari _ defendant filed a pro se motion seeking DNA testing
pursuant to N.C. Gen. Stat. § 15A-269. Defendant requested thatthe court order DNA testing of (1) a torn blouse, (2) a pair of
pants, (3) "[l]adies undergarment," (4) nail clippings and hair
samples, and (5) any other similar evidence from the crime that
might be unknown to defendant. Despite defendant's motion and
unbeknownst to defendant, the t-shirt and jeans were destroyed by
the police on 13 August 2002 after R.T. indicated that she did not
want them returned.
Counsel was appointed on 13 September 2002 to represent
defendant in connection with his motion for post-conviction DNA
testing. That motion was heard before Judge W. Russell Duke, Jr.
on 4 September 2003. At the hearing, defendant and his counsel
learned for the first time that R.T.'s t-shirt and jeans had
already been destroyed. During the hearing, Detective Steve Waters
of the Washington Police Department testified that he had inspected
the clothing at issue on the night of the incident and had found no
evidence of any kind of bodily fluid transfer. He, therefore, did
not order any DNA testing prior to the trial of defendant.
Additionally, Waters testified that he never obtained any
undergarments from R.T. or any nail clippings or hair samples.
On 17 December 2003, the trial court denied defendant's motion
for post-conviction DNA testing. In its order, the court found
that Detective Waters, who was experienced in handling biological
evidence, had examined the victim herself and the clothing she wore
during the assault and did not observe any stains or other
indication that bodily fluids had been transferred. The court also
found that no nail or skin scrapings were collected from either thedefendant or the victim because Detective Waters did not observe
any scratches or skin irritations. Finally, the court found that
the undergarments were never removed from the victim during the
commission of the crime. Based upon these findings, the trial
court determined that there was "no evidence that any biological
evidence was transferred from the Defendant to the victim or the
crime scene" and "no evidence that any biological evidence exists
from which DNA testing could be conducted." The court concluded
that the destruction of the t-shirt and jeans by the Washington
Police Department was not done in bad faith and did not prejudice
the defendant because there was no evidence that showed biological
evidence existed on the clothing.
On 22 December 2003, defendant filed a notice of appeal from
the trial court's order. In its appellee brief, the State argued
that defendant does not have a right to appeal the trial court's
denial of his motion for DNA testing. On 4 January 2005, defendant
filed an "Alternative Application to Treat Appeal as a Petition for
Writ of Certiorari."
A.
The Right to Post-Conviction DNA Testing
[1] In 2001, the General Assembly enacted "An Act to Assist an
Innocent Person Charged With or Wrongly Convicted of a Criminal
Offense in Establishing the Person's Innocence." 2001 N.C. Sess.
Laws 282 (hereinafter "the Act"). Under this Act, a criminal
defendant, as of 13 July 2001, has a right of access before trial
to (1) any DNA analyses performed in connection with his case and(2) "[a]ny biological material, that has not been DNA tested, that
was collected from the crime scene, the defendant's residence or
the defendant's property." N.C. Gen. Stat. § 15A-267(a) (2003).
Additionally, effective 1 October 2001, "a governmental entity that
collects evidence containing DNA in the course of a criminal
investigation shall preserve a sample of the evidence collected for
the period of time a defendant convicted of a felony is
incarcerated in connection with that case." N.C. Gen. Stat. § 15A-
268(a) (2003).
(See footnote 1)
The sample may be disposed of earlier only upon
fulfillment of certain conditions, including notification of the
defendant and defendant's counsel. N.C. Gen. Stat. § 15A-268(b).
Also effective 1 October 2001, following conviction, a
defendant "may make a motion before the trial court that entered
the judgment of conviction against the defendant for performance of
DNA testing of any biological evidence . . . ." N.C. Gen. Stat. §
15A-269(a). In order to obtain "DNA testing of any biological
evidence," the defendant must show that the evidence (1) is
material, (2) is related to the investigation or prosecution, and
(3) was not previously DNA tested or, if it was tested, current DNA
testing would provide results that are significantly more accurate
or would have a reasonable probability of contradicting prior test
results.
Id. The trial court shall grant a motion for post-
conviction DNA testing (1) when the conditions set forth in N.C.
Gen. Stat. § 15A-269(a) are met and (2) "there exists a reasonableprobability that the verdict would have been more favorable to the
defendant" if the DNA testing being requested had been conducted.
N.C. Gen. Stat. § 15A-269(b).
If a motion for post-conviction DNA testing under N.C. Gen.
Stat. § 15A-269 is allowed, the court shall, upon receiving the
results of the testing, "conduct a hearing to evaluate the results
and to determine if the results are unfavorable or favorable to the
defendant." N.C. Gen. Stat. § 15A-270(a) (2003). If the results
are not favorable, then the court shall dismiss the motion. N.C.
Gen. Stat. § 15A-270(b). If, however, the results are favorable,
then the court shall enter an order that "serves the interests of
justice" and may (1) vacate and set aside the judgment, (2)
discharge the defendant, (3) resentence the defendant, or (4) grant
a new trial. N.C. Gen. Stat. § 15A-270(c).
B.
The Right to Appeal
In its brief, the State argues that there is no right to
appeal the denial of a motion for post-conviction DNA testing.
"The right to appeal in a criminal proceeding is purely statutory."
State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995),
aff'd per curiam on other grounds, 342 N.C. 638, 466 S.E.2d 277
(1996). Further, Rule 4(a) of the Rules of Appellate Procedure
provides that the appellate courts have jurisdiction over an appeal
by "[a]ny party
entitled by law to appeal from a judgment or order
of a superior or district court rendered in a criminal action . .
. ." N.C.R. App. P. 4(a) (emphasis added). The first question is,therefore, whether any statute authorizes an appeal of the denial
of defendant's motion for post-conviction DNA testing.
There is no language in N.C. Gen. Stat. § 15A-269 or § 15A-270
that allows an appeal as of right from a grant or denial of a
motion for post-conviction DNA testing. Indeed, there is no
language addressing appellate review at all. In 2001, the General
Assembly simply did not address the issue of appellate review in
the Act and has not amended the legislation since to provide
review.
Nor do any other statutes governing criminal proceedings
provide a right to appeal in cases such as this one. Generally,
the right to appeal in criminal cases is set out in N.C. Gen. Stat.
§ 15A-1444 (2003).
Under that statute, a defendant who pleads not
guilty at trial may appeal the judgment itself as a matter of
right. N.C. Gen. Stat. § 15A-1444(a). In addition, a defendant
who was found guilty or who pled guilty or no contest has the right
to appeal the following issues:
(1) whether the sentence is supported by the
evidence (if the minimum term of imprisonment
does not fall within the presumptive range);
(2) whether the sentence results from an
incorrect finding of the defendant's prior
record level under N.C. Gen.Stat. §
15A-1340.14 or the defendant's prior
conviction level under N.C. Gen.Stat. §
15A-1340.21; (3) whether the sentence
constitutes a type of sentence not authorized
by N.C. Gen. Stat. § 15A-1340.17 or §
15A-1340.23 for the defendant's class of
offense and prior record or conviction level;
(4) whether the trial court improperly denied
the defendant's motion to suppress; and (5)
whether the trial court improperly denied the
defendant's motion to withdraw his guilty
plea.
State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678
(2004). In addition, N.C. Gen. Stat. § 15A-1432(d) (2003) allows
a defendant, under certain circumstances, to appeal on an
interlocutory basis a superior court's order reinstating criminal
charges after a district court dismissal. Defendant's appeal does
not fall within any of these categories of appeal.
Defendant does not point to any other statute specifically
authorizing appeal from the order below, but argues that his appeal
is permissible under N.C. Gen. Stat. § 7A-27(b) (2003). N.C. Gen.
Stat. § 7A-27(b) allows an appeal "[f]rom any final judgment of a
superior court." A denial of a motion for post-conviction DNA
testing does not, however, constitute a "final judgment" as defined
in criminal proceedings.
Under N.C. Gen. Stat. § 15A-101(4a)
(2003), judgment is defined as "when sentence is pronounced."
See
also Berman v. United States, 302 U.S. 211, 212, 82 L. Ed. 204,
204, 58 S. Ct. 164, 165 (1937) ("Final judgment in a criminal case
means sentence. The sentence is the judgment."). The order below
does not involve the pronouncement of a sentence.
Accordingly, there is no statutory right of appeal to this
Court from a grant or denial of a motion for post-conviction DNA
testing. We, therefore, turn to consideration of defendant's
alternative petition for writ of certiorari.
C.
Petition for Writ of Certiorari
[2] In support of his petition for writ of certiorari,
defendant first argues that motions for post-conviction DNA testing
should be treated as motions for appropriate relief, which wouldallow us to review the trial court's order pursuant to N.C. Gen.
Stat. § 15A-1422(c)(3) (2003). That statute provides that review
of an order denying a motion for appropriate relief is by writ of
certiorari "[i]f the time for appeal has expired and no appeal is
pending . . . ."
Id.
Defendant's motion for post-conviction DNA testing cannot,
however, be deemed a motion for appropriate relief. N.C. Gen.
Stat. § 15A-1415(b) (2003) sets forth "the only grounds which the
defendant may assert by a motion for appropriate relief made more
than 10 days after entry of judgment." In addition, N.C. Gen.
Stat. § 15A-1415(c) provides that "a defendant at any time after
verdict may by a motion for appropriate relief, raise the ground
that evidence is available which was unknown or unavailable to the
defendant at the time of trial, which could not with due diligence
have been discovered or made available at that time . . . ."
Defendant acknowledges that his motion does not involve any of the
grounds specified in N.C. Gen. Stat. § 15A-1415(b) or (c). It
cannot, therefore, be considered a motion for appropriate relief.
Review is also not available under Rule 21 of the North
Carolina Rules of Appellate Procedure:
[T]his Court is limited to issuing a writ of
certiorari "in appropriate circumstances . . .
to permit review of the judgments and orders
of trial tribunals when [1] the right to
prosecute an appeal has been lost by failure
to take timely action, or [2] when no right of
appeal from an interlocutory order exists, or
[3] for review pursuant to G.S. 15A-1422(c)(3)
of an order of the trial court denying a
motion for appropriate relief."
State v. Pimental, 153 N.C. App. 69, 76-77, 568 S.E.2d 867, 872
(quoting N.C.R. App. P. 21(a)(1)),
disc. review denied, 356 N.C.
442, 573 S.E.2d 163 (2002). In addition, under
State v. Bolinger,
320 N.C. 596, 601-602, 359 S.E.2d 459, 462 (1987), a defendant may
petition for writ of certiorari when challenging the procedures
followed in accepting a guilty plea.
State v. Niccum, 293 N.C.
276, 278, 238 S.E.2d 141, 143 (1977) also permits a petition for
writ of certiorari upon denial of a petition for writ of habeas
corpus.
In this case, seeking review of the DNA testing order,
defendant did not lose the right to appeal by failing to take
timely action; he does not challenge any guilty plea procedures;
and his motion is not a petition for writ of habeas corpus. We
have, however, held that the trial court's order did not constitute
a "final judgment" in a criminal proceeding, thereby raising the
question whether it can be considered an interlocutory order. An
interlocutory order is defined as "one made during the pendency of
an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine
the entire controversy."
Veazey v. Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950). A motion for post-conviction DNA testing
cannot be considered an interlocutory order because it is not made
during the pendency of a criminal proceeding. The conviction has
already been entered and there is no further action for the court
to take. Accordingly, we have no authority to allow defendant's
petition for writ of certiorari.
D.
Rule 2 of Appellate Procedure
[3] The State suggests that this Court may use Rule 2 of the
North Carolina Rules of Appellate Procedure to suspend the
requirements of Rule 21. Rule 2 states:
To prevent manifest injustice to a party,
or to expedite decision in the public
interest, either court of the appellate
division may, except as otherwise expressly
provided by these rules, suspend or vary the
requirements or provisions of any of these
rules in a case pending before it upon
application of a party or upon its own
initiative, and may order proceedings in
accordance with its directions.
N.C.R. App. P. 2.
We decline to exercise our discretion under Rule 2 because
defendant has failed to demonstrate that review is necessary in
order to prevent manifest injustice. First, defendant is arguing
that testing the clothing would show a lack of DNA evidence,
thereby corroborating his testimony. The statute, however,
provides for testing of "biological evidence" and not evidence in
general. N.C. Gen. Stat. § 15A-269(a). Since defendant desires to
demonstrate a lack of biological evidence, the post-conviction DNA
testing statute does not apply. Moreover, this case involves an
attempted rape charge. Given the evidence offered at trial, the
absence of DNA evidence would not necessarily exonerate defendant.
This is not a case in which DNA testing would point to another
perpetrator. Rather, DNA testing would only show that there was no
bodily fluid transfer, a fact that would not exonerate defendant.
Second, defendant argues that sanctions should be imposed for
the Washington Police Department's failure to preserve the evidencefor testing. Without a showing that the clothing contained
biological material or DNA, the requirement to preserve a sample of
the evidence under N.C. Gen. Stat. § 15A-268 is not implicated.
Moreover, as defendant admits, the legislation fails to provide a
remedy for the improper destruction of relevant biological
material. Defendant, however, asks this Court to devise a remedy
for improperly destroyed biological evidence. We decline to do so
_ that is a task for the General Assembly and not the Court of
Appeals.
Because we conclude that review is not necessary to prevent
manifest injustice, we decline to exercise our power under Rule 2
to suspend the requirements of Rule 21 and allow defendant's
petition for writ of certiorari. Accordingly, we have no choice
but to dismiss defendant's appeal.
