{ "id": 4220787, "name": "STATE OF NORTH CAROLINA v. EDWARD JOSEPH GARDNER, IV", "name_abbreviation": "State v. Gardner", "decision_date": "2013-05-21", "docket_number": "No. COA12-969", "first_page": "364", "last_page": "371", "citations": [ { "type": "official", "cite": "227 N.C. App. 364" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "635 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636802 ], "year": 2006, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0492-01" ] }, { "cite": "179 N.C. App. 852", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8240659 ], "year": 2006, "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0852-01" ] }, { "cite": "2011 WL 3276748", "category": "reporters:specialty_west", "reporter": "WL", "year": 2011, "pin_cites": [ { "page": "*3", "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "714 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "729 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2012, "pin_cites": [ { "page": "120" }, { "page": "120" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "2012 WL 946438", "category": "reporters:specialty_west", "reporter": "WL", "weight": 5, "year": 2012, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "*5" } ], "opinion_index": 0 }, { "cite": "722 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "2010 WL 2367302", "category": "reporters:specialty_west", "reporter": "WL", "weight": 4, "year": 2010, "pin_cites": [ { "page": "*1", "parenthetical": "unpublished" }, { "page": "*1" }, { "page": "*2" } ], "opinion_index": 0 }, { "cite": "696 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "year": 2010, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "573 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "209-10", "parenthetical": "stating that the rule of lenity, which only applies when the wording of a criminal statute is ambiguous, forbids the Court from imposing a penalty on a defendant that was not intended by the Legislature" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9252072 ], "year": 2002, "pin_cites": [ { "page": "740", "parenthetical": "stating that the rule of lenity, which only applies when the wording of a criminal statute is ambiguous, forbids the Court from imposing a penalty on a defendant that was not intended by the Legislature" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0737-01" ] }, { "cite": "2012 WL 6590534", "category": "reporters:specialty_west", "reporter": "WL", "pin_cites": [ { "page": "*2" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 607, "char_count": 16019, "ocr_confidence": 0.726, "pagerank": { "raw": 2.1793340178506798e-07, "percentile": 0.7721253246810914 }, "sha256": "2314e2606ff40f0c28b1ed1db3a2f27a2ba65e4eaef22c3a5fb9504a57495a8a", "simhash": "1:f3fbe2f8f3be0570", "word_count": 2609 }, "last_updated": "2023-07-14T17:48:13.495142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and DAVIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD JOSEPH GARDNER, IV" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nEdward Joseph Gardner, IV (\u201cdefendant\u201d) appeals from orders denying his motions to locate and preserve evidence and for postconviction DNA testing. On appeal, defendant argues that the trial court erred by: (1) failing to appoint counsel to represent defendant on his motion for postconviction DNA testing; and (2) making insufficient findings of fact and conclusions of law in denying defendant\u2019s motion for postconviction DNA testing. After careful review, we find no error.\nBackground\nDefendant was indicted on 19 July 1999 for twenty-eight charges of statutory rape against a 13, 14, or 15-year-old child and one count of resisting, delaying, and obstructing a public officer. Defendant was appointed counsel and pled guilty to fifteen counts of statutory rape. In exchange for the plea, the State dismissed thirteen counts of statutory rape and the resisting, delaying, and obstructing a public officer charge. The trial court consolidated judgment and sentenced defendant to 173 to 217 months imprisonment.\nOn 14 February 2012, defendant filed pro se a motion to locate and preserve evidence, a motion for postconviction DNA testing, and an affidavit of innocence in Pitt County Superior Court. In the motion for postconviction DNA testing, defendant asserted, inter alia, that he was incarcerated and indigent. The trial court did not appoint counsel to represent defendant. Without conducting hearings, the trial court denied defendant\u2019s motion for postconviction DNA testing in an order entered 7 March 2012 and decided defendant\u2019s motion to locate and preserve evidence in an order entered 12 March 2012. Defendant appeals.\nDiscussion\nI. Appointment of Counsel\nDefendant\u2019s first argument on appeal is that the trial court erred by failing to appoint counsel to represent defendant on the motion for post-conviction DNA testing. We disagree.\nThe standard of review for denial of a motion for postconviction DNA testing has not been expressly stated in a published decision of this Court. We adopt the standard utilized in State v. Patton, __ N.C. App. _, _ S.E.2d _, 2012 WL 6590534, at *2, 2012 N.C. App. LEXIS 1406, at *3-5 (No. COA12-507) (Dec. 18, 2012) (unpublished) (internal citation omitted):\nOur standard of review of a denial of a motion for postconviction DNA testing is analogous to the standard of review for a motion for appropriate relief. Findings of fact are binding on this Court if they are supported by competent evidence and may not be disturbed absent an abuse of discretion. The lower court\u2019s conclusions of law axe reviewed de novo.\nN.C. Gen. Stat. \u00a7 15A-269 (2012) provides that a defendant may request postconviction DNA testing of evidence and states in pertinent part:\n(a) A defendant may make a motion before the trial court... if the biological evidence meets all of the following conditions:\n(1) Is material to the defendant\u2019s defense.\n(2) Is related to the investigation or prosecution that resulted in the judgment.\n(3) Meets either of the following conditions:\na. It was not DNA tested previously.\nb. 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(Emphasis added). Pursuant to subsection (c) of the statute:\n[T]he 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 in accordance with the rules adopted by the Office of Indigent Defense Services upon a showing that the DNA testing may be material to the petitioner\u2019s claim of wrongful conviction.\nN.C. Gen. Stat. \u00a7 15A-269(c) (emphasis added).\nDefendant offers two arguments for why the trial court erred in failing to appoint counsel. First, defendant asserts that subsection (c) of the statute is inherently contradictory in that the first sentence mandates that counsel shall be appointed to all indigent defendants filing postconviction DNA motions while the second sentence requires a defendant to show that the DNA testing may be material to his claim of wrongful conviction before being appointed counsel. Defendant argues that this inconsistency in subsection (c) creates ambiguity and that the rule of lenity requires the ambiguity to be resolved in favor of defendant-that is, that the statute requires appointment of counsel for indigent defendants regardless of a showing of materiality. See State v. Cates, 154 N.C. App. 737, 740, 573 S.E.2d 208, 209-10 (2002) (stating that the rule of lenity, which only applies when the wording of a criminal statute is ambiguous, forbids the Court from imposing a penalty on a defendant that was not intended by the Legislature).\nHowever, this Court has already concluded that there is no ambiguity in the statute:\n[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\u2019s claim that he or she was wrongfully convicted.\nState v. Barts, 204 N.C. App. 596, 696 S.E.2d 923, 2010 WL 2367302, at *1, 2010 N.C. App. LEXIS 979, at *3 (2010) (unpublished) (hereinafter \u201cBarts /\u201d). Because there is no ambiguity, the rule of lenity does not apply.\nIn Barts I, the defendant appealed the denial of his motion for post-conviction DNA testing, arguing that N.C. Gen. Stat. \u00a7 15A-269, as it existed as the time he filed his motion, required merely that his motion allege that he was indigent in order to require the court to appoint him counsel. At the time the defendant in Barts I filed his motion, subsection (c) read as follows: \u201c \u2018The court shall appoint counsel for the person who brings a motion under this section if that person is indigent.\u2019 \u201d 2010 WL 2367302, at *1, 2010 N.C. App. LEXIS 979, at *2; N.C. Gen. Stat. \u00a7 15A-269(c) (2007). It was not until 2009 that the General Assembly added the second sentence stating that the trial court must appoint counsel for a pro se petitioner \u201cupon a showing that the DNA testing may be material to the petitioner\u2019s claim of wrongful conviction.\u201d 2009 N.C. Sess. Laws ch. 203, \u00a7 5.\nIn Barts I, we concluded that the addition of the second sentence to subsection (c) in 2009 \u201conly made explicit that which was already implied by the language of the statute when read it its entirety\u201d-that a motion is properly brought under subsection (a) only when the defendant sufficiently alleges each condition set forth in subsection (a), which includes the condition that the defendant show the materiality of the DNA testing to his defense. Barts I, 2010 WL 2367302, at *2, 2010 N.C. App. LEXIS 979, at *5. We therefore rejected the defendant\u2019s argument that the trial court was required to appoint counsel for an indigent defendant without regard to whether the defendant had any basis for bringing the motion. Id. Although Barts I is an unpublished opinion and is not controlling legal authority, N.C. R. App. P. 30(e)(3), we find its reasoning persuasive and we hereby adopt it. Accordingly, defendant\u2019s argument that N.C. Gen. Stat. \u00a7 15A-269A requires the appointment of counsel for all indigent defendants regardless of whether they have made a showing that the DNA testing is material to their claim of wrongful conviction is overruled.\nNext, defendant contends that if this Court were to conclude that the statute requires a showing of materiality, the materiality threshold to appoint counsel under subsection (c) (that the testing \u201cmay be material\u201d to his claim) is less than the materiality threshold to bring a motion under subsection (a)(1) (that the testing \u201cis material\u201d to his claim). This argument has also been considered and rejected by this Court in State v. Barts, _ N.C. App. _, 722 S.E.2d 797, 2012 WL 946438, 2012 N.C. App. LEXIS 370 (2012) (unpublished) (hereinafter \u201cBarts IF). There, we cited our reasoning in Barts I and we rejected the defendant\u2019s argument:\n[W]e reject [defendant's contention that the threshold materiality requirement for the appointment of counsel for purposes of N.C. Gen. Stat. \u00a7 15A-269(c) is less demanding than that required for actually ordering DNA testing pursuant to N.C. Gen. Stat. \u00a7 15A-269(a)(l) and hold that, in order to support the appointment of counsel pursuant to N.C. Gen. Stat. \u00a7 15A-269(c), a convicted criminal defendant must make an allegation addressing the materiality issue that would, if accepted, satisfy N.C.- Gen. Stat. \u00a7 15A-269(a)(l).\nId., 2012 WL 946438, at *5,2012 N.C. App. LEXIS 370, at*12-13. Although, Barts II is also an unpublished opinion and not controlling legal authority, N.C. R. App. P. 30(e)(3), we find its reasoning persuasive, and we hereby adopt it.\nFurthermore, we note that while defendant argues that this conclusion renders the appointment of counsel for pro se petitioners regarding postconviction DNA testing motions superfluous, this argument was also addressed and rejected in Barts II:\nWe are not persuaded by [defendant's claim that the adoption of the position that we have deemed appropriate in the text renders the appointment of counsel in DNA testing proceedings superfluous given that, once a defendant has made a sufficient materiality allegation in his motion and counsel has been appointed to'represent him, the defendant\u2019s appointed counsel will have responsibility for persuading the trial court to actually order the testing by, among other things, demonstrating that the defendant\u2019s allegation of materiality is factually and legally valid; ensuring that any testing ultimately ordered by the trial court is performed in an appropriate manner; and litigating any claim for relief that the defendant elects to assert after receiving the test results.\nId., 2012 WL 946438 at *5 n.3, 2012 N.C. App. LEXIS 370 at *13 n.3.\nNext, we must determine if defendant made a sufficient showing of materiality that the court was obligated to appoint him counsel. Pursuant to our holding in State v. Foster, _ N.C. App. _, 729 S.E.2d 116 (2012), we must conclude that defendant failed to meet his burden.\nIn Foster, we adopted the conclusion reached in Barts I, that the conditions of N.C. Gen. Stat. \u00a7 15A-269(a)(l) are \u201ca condition precedent to a trial court\u2019s statutory authority to grant\u201d a motion for postconviction DNA testing brought under the statute._N.C. App. at_, 729 S.E.2d at 120. We also adopted the reasoning of State v. Moore, __ N.C. App. _, 714 S.E.2d 529, 2011 WL 3276748, at *3, 2011 N.C. App. LEXIS 1651, at *7-9 (2011) (unpublished), that where a motion brought under section 15A-269 provided no indication of how or why the requested DNA testing would be material to the petitioner\u2019s defense, the motion was deficient and it was not error to deny the request for the DNA testing. Foster, _ N.C. App. at_, 729 S.E.2d at 120. According to the reasoning o\u00ed Barts I and Moore, we concluded that a defendant carries the burden to make the showing of materiality required by N.C. Gen. Stat. \u00a7 15A-269(a)(l) and that this burden requires more than the conclusory statement that \u201c \u2018[t]he ability to conduct the requested DNA testing is material to the [defendant's defense.\u2019 \u201d Foster, _. N.C. App. at _, 729 S.E.2d at 120.\nHere, defendant used the identical conclusory statement regarding the materiality of the requested DNA testing as was used by the defendant in Foster; he provided no explanation as to why the testing would be material to his defense. In light of our holding in Foster, we must conclude that he has failed to establish a condition precedent to the trial court\u2019s authority to grant his motion. We therefore need not address the State\u2019s alternative argument that because defendant pled guilty to the charges of which he claims he was wrongfully convicted, defendant presented no \u201cdefense\u201d to which the testing could be material.\nII. Findings of Fact and Conclusions of Law\nDefendant\u2019s final argument is that the trial court erred by failing to make sufficient findings of fact and conclusions of law demonstrating that it analyzed the requirements set forth in section 15A-269. We disagree.\nThe general rule is that a trial court need only make specific findings of facts and conclusions of law when a party requests the trial court do so in a civil case. See Couch v. Bradley, 179 N.C. App. 852, 855, 635 S.E.2d 492, 494 (2006). N.C. Gen. Stat. \u00a7 15A-269 contains no requirement that the trial court make specific findings of facts, and we decline to impose such a requirement.\nIn its order denying defendant\u2019s motion, the trial court stated that it reviewed the allegations in defendant\u2019s motion and cited N.C. Gen. Stat. \u00a7 15A-269(b), which requires that the trial court grant the motion if the conditions in subsection (a) are met. N.C. Gen. Stat. \u00a7 15A-269(b) (\u201cThe court shall grant the motion . . . upon its determination that. . . the conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of this section have been met[.]\u201d). Based on this, and other findings, the trial court concluded that defendant failed to show the existence of any grounds for relief. We conclude the order is sufficient.\nAccording to defendant, the trial court\u2019s findings of fact and conclusions of law were based on an incorrect interpretation of section 15A-269 which precludes all defendants who pled guilty to the crimes for which they were convicted from seeking postconviction DNA testing under this statute. We decline to reach this issue here. As explained above, we conclude defendant did not meet the materiality requirement of subsection (a) and that the trial court properly denied defendant\u2019s motion.\nConclusion\nAfter careful review, we find no error in the trial court\u2019s decision not to appoint counsel for defendant on his motion for postconviction DNA testing. The motion was properly denied because defendant failed to make the requisite showing of materiality.\nNO ERROR.\nJudges McCULLOUGH and DAVIS concur.\n. Although defendant gave notice of appeal from the order denying his motion to locate and preserve evidence, defendant\u2019s arguments on appeal address only the denial of his motion seeking postconviction DNA testing. We therefore deem that he has abandoned his appeal from the order denying his motion to locate and preserve evidence. N.C. R. App. P. 28(b)(6) (2012).\n. The recurrence of this conclusory language appears to stem from a standardized form for requesting postconviction DNA testing under section 15A-269A. The form used by defendant contains the pre-printed conclusory language and provides no space to suggest a need to explain the alleged materiality of the testing.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD JOSEPH GARDNER, IV\nNo. COA12-969\nFiled 21 May 2013\n1. Constitutional Law \u2014 right to counsel \u2014 motion for postconviction DNA testing \u2014 failure to show materiality\nThe trial court did not err in a multiple statutory rape case by failing to appoint counsel to represent defendant on his motion for postconviction DNA testing. Defendant failed to make the requisite showing of materiality.\n2. Evidence \u2014 postconviction DNA testing \u2014 sufficiency of findings of fact\nThe trial court did not err in a multiple statutory rape case by failing to make sufficient findings of fact and conclusions of law-demonstrating that it analyzed the requirements set forth in N.C.G.S. \u00a7 15A-269 regarding postconviction DNA testing of evidence because the statute does not contain any requirement that the trial court make specific findings of facts.\nAppeal by defendant from orders entered 7 and 12 March 2012 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 26 February 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant." }, "file_name": "0364-01", "first_page_order": 374, "last_page_order": 381 }