              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1061

                                Filed: 15 May 2018

Forsyth County, No. 11 CRS 50213, 9998-99

STATE OF NORTH CAROLINA

             v.

WADE LEON SHAW, Defendant.


      Appeal by defendant from order entered 14 December 2015 by Judge David L.

Hall in Forsyth County Superior Court. Heard in the Court of Appeals 8 March 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
      Andrews, for defendant-appellant.


      ZACHARY, Judge.


      Defendant Wade Leon Shaw appeals from the trial court’s order denying his

“Request for Post Conviction DNA Testing and Discovery” pursuant to N.C. Gen. Stat.

§ 15A-269. We vacate and remand.

                                      Background

      In June 2011, defendant was indicted for second-degree burglary, first-degree

kidnapping, assault by strangulation, first-degree rape, first-degree sexual offense,

and attaining habitual felon status. The matter was tried before a jury beginning on

30 January 2012.
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                                    Opinion of the Court



       The evidence presented at defendant’s trial included, among other things,

testimony by the State’s expert in forensic DNA analysis concerning the DNA

evidence that was recovered from the victim. The DNA analyst concluded that

defendant’s DNA “cannot be excluded as a contributor to the DNA mixture” that was

recovered, and that “the chance of selecting an individual at random that would be

expected to be included for the observed DNA mixture profile” was approximately,

“for the North Carolina black population, 1 in 14.5 million[.]” Defendant was

convicted on all charges, and this Court affirmed defendant’s convictions in May 2013.

       On 22 October 2015, defendant filed a pro se motion with the trial court entitled

“Request for Post Conviction DNA Testing and Discovery N.C. Gen. Stat. § 15A-269,

§ 15A-902.” This motion simply paraphrased the applicable statute, stating only that

defendant was moving for post-conviction DNA testing “because the evidence is

material to [his] defense, is related to the investigation or prosecution . . . , and it was

previously tested and the requested DNA retesting would provide results that are

significantly more accurate and probative, having a reasonable probability of

contradicting prior test results.” Defendant also provided a sworn affidavit

maintaining his innocence.

       Although defendant moved for post-conviction DNA testing pursuant to N.C.

Gen. Stat. § 15A-269, the trial court decided that “the caption of Defendant’s Motion

notwithstanding, this Court will review it as a Motion for Appropriate Relief”



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                                   Opinion of the Court



pursuant to N.C. Gen. Stat. § 15A-1411(c). The trial court then determined that

defendant had not complied with the service and filing requirements provided for

motions for appropriate relief in N.C. Gen. Stat. § 15A-1420(a)(2). The trial court also

concluded that “Defendant does not allege newly discovered evidence or other genuine

issues that would require an evidentiary hearing, and that the claims raised either

were or could have been raised upon direct appeal[,]” which are grounds for denial of

a motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1419. The trial court

denied defendant’s motion on 14 December 2015.

      On 29 June 2017, defendant filed a petition for writ of certiorari asking this

Court to review the trial court’s order denying his motion for post-conviction DNA

testing. We granted certiorari on 10 July 2017.

      On appeal, defendant argues that the trial court erred in denying his motion

for post-conviction DNA testing because the facts at issue are sufficient to satisfy “the

criteria for additional DNA testing” provided in N.C. Gen. Stat. § 15A-269. Defendant

also argues that his motion for post-conviction DNA testing was denied in error by

the trial court “based on a statute [pertinent to motions for appropriate relief] that

was inapplicable to [defendant’s] motion.”

                                         Discussion




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                                 Opinion of the Court



      In response to the ever-developing nature of DNA technology, N.C. Gen. Stat.

§ 15A-269 allows convicted defendants to submit requests for post-conviction DNA

testing. Pursuant to N.C. Gen. Stat. § 15A-269,

            (a) A defendant may make a motion before the trial court
            that entered the judgment of conviction against the
            defendant for performance of DNA testing . . . if the
            biological evidence 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.

            (b) The court shall grant the motion for DNA testing . . .
            upon its determination that:

                   (1) The conditions set forth in subdivisions (1), (2),
                   and (3) of subsection (a) of this section have been
                   met;

                   (2) If the DNA testing being requested had been
                   conducted on the evidence, there exists a reasonable
                   probability that the verdict would have been more
                   favorable to the defendant; and

                   (3) The defendant has signed a sworn affidavit of
                   innocence.


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                                   Opinion of the Court




N.C. Gen. Stat. § 15A-269(a) and (b) (2017).

I. Post-Conviction Procedures

      A motion for post-conviction DNA testing pursuant to N.C. Gen. Stat. § 15A-

269 is distinct from a motion for appropriate relief under N.C. Gen. Stat. § 15A-1411,

-1420. State v. Howard, ___ N.C. App. ___, ___, 783 S.E.2d 786, 793-94 (2016); see

also State v. Brown, 170 N.C. App. 601, 607, 613 S.E.2d 284, 288, disc. review denied,

360 N.C. 68, 621 S.E.2d 882 (2005), superseded by statute on other grounds as

recognized in State v. Norman, 202 N.C. App. 329, 332, 688 S.E.2d 512, 515, disc.

review denied, 364 N.C. 439, 702 S.E.2d 792 (2010). Wholly separate from the post-

conviction procedures that govern motions for appropriate relief, N.C. Gen. Stat. §

15A-269 “provide[s] a specific procedural vehicle for asserting, and obtaining relief

on, claims for relief based on post-conviction DNA testing.” Howard, ___ N.C. App.

at ___, 783 S.E.2d at 794.      In fact, even where a defendant files a motion for

appropriate relief that contains multiple claims, one of which involves post-conviction

DNA testing, the trial court must still “evaluat[e] each individual claim on the merits

and under the applicable substantive law.” Id. at ___, 783 S.E.2d at 795. Accordingly,

where a defendant brings a motion for post-conviction DNA testing pursuant to N.C.

Gen. Stat. § 15A-269, the trial court’s task is to rule on the motion in accordance with

the applicable substantive law as set forth in N.C. Gen. Stat. § 15A-269(b). A trial

court may not supplant the analysis contemplated by N.C. Gen. Stat. § 15A-269(b)


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                                   Opinion of the Court



with the evaluation applicable to motions for appropriate relief.

      In the instant case, defendant filed a motion entitled “Request for Post-

Conviction DNA Testing” requesting relief pursuant to N.C. Gen. Stat. § 15A-269. As

such, the trial court was obliged to resolve various questions under N.C. Gen. Stat. §

15A-269(b). For instance, the trial court was required to determine whether the

biological evidence was material to the defense, N.C. Gen. Stat. § 15A-269(a)(1),

whether the re-testing of the DNA would be “significantly more accurate and

probative” than the prior testing, N.C. Gen. Stat. § 15A-269(a)(3)(b), and whether

“there exist[ed] a reasonable probability that the verdict would have been more

favorable to . . . defendant” had the requested testing been conducted, N.C. Gen. Stat.

§ 15A-269(b)(2). However, the trial court conducted no such inquiry, and denied

defendant’s motion on the grounds set forth in N.C. Gen. Stat. § 15A-1420(a)(2) and

1419(a) for evaluation of motions for appropriate relief. While the trial court in its

order did note that defendant had “not allege[d] newly discovered evidence or other

genuine issues[,]” the trial court was required to analyze the relevance of that deficit

in light of the requirements of N.C. Gen. Stat. § 15A-269.

      In that the trial court’s order does not address the requisite factors provided in

N.C. Gen. Stat. § 15A-269, we cannot determine whether defendant’s motion for post-

conviction DNA testing was properly denied. Accordingly, we vacate the trial court’s

order and remand for the trial court’s review consistent with the provisions of N.C.



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                                  Opinion of the Court



Gen. Stat. § 15A-269.

II. Grounds to Grant Relief

      Defendant also argues that sufficient grounds exist to warrant post-conviction

DNA testing of the biological evidence in the instant case. Although defendant’s

motion merely paraphrases the statute, on appeal he submits a factual basis for the

allegations of his motion. Most significantly, defendant maintains that the prior

testing was not reliable because of the inability of the DNA analyst from the State

Crime Laboratory who examined the biological evidence at issue in defendant’s trial

to pass the required certification examination.

      In that this matter is being vacated and remanded to the trial court on other

grounds, however, we decline to address defendant’s additional arguments in support

of his motion for post-conviction DNA testing.

                                    Conclusion

      For the reasons set forth above, the matter is

      VACATED AND REMANDED.

      Judges HUNTER, JR. and DIETZ cuncur.




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