                               NO. COA13-1043

                    NORTH CAROLINA COURT OF APPEALS

                             Filed: 17 June 2014


STATE OF NORTH CAROLINA

    v.                                      Craven County
                                            No. 03 CRS 56121
ELWOOD WARREN COLLINS


    Appeal by Defendant from Order entered 11 April 2013 by

Judge Benjamin G. Alford in Craven County Superior Court. Heard

in the Court of Appeals 22 January 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Laura E. Parker, for the State.

    Richard J. Costanza for Defendant.


    STEPHENS, Judge.


                      Procedural History and Evidence

    This   case   arises     from   Defendant      Elwood   Warren   Collins’s

motion   for   post-conviction      DNA   testing.    On    22   October   2003,

Defendant was indicted for first-degree murder in the death of

Christina Lee. On 6 May 2005, Defendant pled guilty to second-

degree   murder   pursuant    to    the   United   States    Supreme   Court’s

opinion in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d

162 (1970) (determining that a court may accept a plea of guilty
                                      -2-
to second-degree murder when the State has strong evidence of

guilt of first-degree murder even though the defendant claims

that he is innocent, if the defendant, represented by competent

counsel, intelligently concludes that he should plead guilty to

second-degree     murder   rather     than     be       tried    for    first-degree

murder). As a result, the trial court sentenced Defendant in the

presumptive range to an active term of 157 to 198 months in

prison.

    More than four years later, on 28 December 2009, Defendant

filed a pro se motion seeking post-conviction DNA testing on

certain items of evidence related to Lee’s death.                          The trial

court appointed counsel to represent Defendant on 10 February

2010, and Defendant filed an amended affidavit in support of his

motion for genetic testing on 24 March 2010. The State filed an

answer    contesting    Defendant’s       motion    on    7     December    2012.1   A

proceeding on the motion was held on 12 March 2013, and counsel

appeared   for   both   sides.     According       to    the    trial     court,   the

proceeding       was    conducted         to       determine           “whether . . .

[Defendant’s]     motion   meets    the    threshold       requirements       of   the

statute, and if so, record a hearing [at] which time the State



1
  The record contains no explanation for the remarkable delay in
the filing of the State’s answer.
                                       -3-
and [D]efendant will be allowed to present further evidence in

support of their positions.”

       The parties have stipulated that they appeared before the

trial court two days later, on 14 March 2013, “to address the

request for post[-]conviction DNA testing.” According to this

stipulation, “[t]he parties agreed that [the trial court] could

make   a   ruling   based   on   the    motion   itself   and   the   State’s

response.” That afternoon, the trial court contacted counsel for

the parties by e-mail, indicating that Defendant’s motion was

denied and stating that

            Defendant has failed to show how the DNA
            material to be tested is material to his
            defense or what th[e] ‘newer and more
            accurate testing’ consists of or how said
            results would be significantly more accurate
            and probative of the identity of the
            perpetrator. The mere mouthing of these
            conclusory statements, absent more, [is]
            insufficient to carry . . . [D]efendant’s
            burden on this issue.

The e-mail directed the State to draft an order denying the

motion, which would be circulated to defense counsel and then

executed by the trial court. The court entered its written order

denying the motion on 11 April 2013. Defendant appeals.

                                 Discussion

       On appeal, Defendant argues (1) that the trial court’s 11

April 2013 order is null and void for lack of jurisdiction, or,
                                    -4-
alternatively,   (2)   that   the    trial   court   erred   in   denying

Defendant’s motion for post-conviction DNA testing. We disagree.

    I. Jurisdiction

          Whether a trial court has subject-matter
          jurisdiction is a question of law, reviewed
          de    novo     on   appeal.    Subject-matter
          jurisdiction involves the authority of a
          court to adjudicate the type of controversy
          presented by the action before it. Subject-
          matter jurisdiction derives from the law
          that organizes a court and cannot be
          conferred on a court by action of the
          parties or assumed by a court except as
          provided by that law. When a court decides a
          matter     without   the    court’s    having
          jurisdiction, then the whole proceeding is
          null and void, i.e., as if it had never
          happened.

McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010) (citations and internal quotation marks omitted; italics

added).

    Defendant argues that the trial court’s 11 April 2013 order

is null and void for lack of jurisdiction because it was filed

out of session and without his consent. In making this argument,

Defendant points out that the proceedings on 12 and 14 March

2013 were held during the 11 March 2013 Criminal Session of

Craven County Superior Court, which concluded well before the
                              -5-
trial court filed its 11 April 2013 written order.2 For support,

Defendant cites our Supreme Court’s opinion in State v. Trent,

which held that:

         [A]n order of the superior court, in a
         criminal case, must be entered during the
         term, during the session, in the county[,]
         and in the judicial district where the
         hearing was held.3 Absent consent of the
         parties, an order entered in violation of
         these requirements is null and void and
         without legal effect.




2
   For purposes of addressing Defendant’s argument, we take
judicial notice of the Division II calendar of superior courts
for     the      spring      2013     term,     available      at
http://www.nccourts.org/Courts/
CRS/Calendars/Documents/spring2013-statewide.pdf. See generally
Baker v. Varser, 239 N.C. 180, 186, 79 S.E.2d 757, 761–62 (1954)
(taking judicial notice of the assignment of trial judges to
hold court). According to the information in that calendar,
Judge Alford was assigned to Superior Court Division II,
judicial district 3B. The spring term was set to begin January 7
and end July 1. Beginning 11 March 2013, Judge Alford was
scheduled to hold the criminal and civil sessions of Craven
County Superior Court, which were set to last for one week.
Judge Alford was also scheduled to preside over the 18 March
2013 civil and criminal sessions of Craven County Superior
Court, which were set to last for another week. Craven County
Superior Court was not in session during the week of 8 April
2013, and Judge Alford was assigned instead to preside over the
criminal and civil sessions of Carteret County Superior Court.
3
  “The use of ‘term’ has come to refer to the typical six-month
assignment of superior court judges, and ‘session’ to the
typical one-week assignments within the term.” Capital Outdoor
Advertising, Inc. v. City of Raleigh, 337 N.C. 150, 154 n. 1,
446 S.E.2d 289, 291 n. 1 (1994).
                                       -6-
359   N.C.    583,    585,   614   S.E.2d    498,   499    (2005).    We   are   not

persuaded by Defendant’s argument.

      In Trent, the defendant was charged with and convicted of

robbery with a dangerous weapon. Id. at 584, 614 S.E.2d at 499.

Before trial, the defendant filed two motions to suppress. Id. A

hearing on the motions was held on 11 October 2001 and continued

to 17 January 2002. Id. The trial court declined to rule at the

end of the January hearing and announced its determination seven

months later, in the following term, denying the defendant’s

motions.      Id.    The   defendant   appealed,     and    our    Supreme   Court

granted a new trial because the court’s order was “null and void

since it was entered out of term and out of session.” Id. at

586, 614 S.E.2d at 500.

      In     so   holding,   the   Trent    Court   relied    on     its   previous

opinion in State v. Boone, 310 N.C. 284, 287–88, 311 S.E.2d 552,

555 (1984). The defendant in Boone was charged with felonious

manufacturing of a controlled substance and felonious possession

of more than one ounce of marijuana. Id. at 284–85, 311 S.E.2d

at 553. He was convicted of the latter. Id. at 285, 311 S.E.2d

at 553. Prior to trial, he moved to suppress the marijuana in a

motion heard on 16 and 18 June 1981. Id. at 286, 311 S.E.2d at

554. The trial court denied the motion by order signed in the
                                         -7-
following session, on 25 June 1981. Because the order was signed

outside the session in which the motion was heard, our Supreme

Court determined that the defendant was entitled to a new trial.

Id. at 286–87, 311 S.E.2d at 554–55. In so holding, the Court

cited the following general rule:

             Judgments and orders substantially affecting
             the rights of parties to a cause pending in
             the Superior Court at a term must be made in
             the county and at the term when and where
             the question is presented, and our decisions
             on the subject are to the effect that,
             except by agreement of the parties or by
             reason of some express provision of law,
             they   cannot   be    entered   otherwise, and
             assuredly   not    in   another   district and
             without notice to the parties interested.

Id. at 287, 311 S.E.2d at 555 (citation and brackets omitted)

(noting that this rule has been consistently applied in both

criminal and civil cases).

      In   the     time     between   the     Court’s   opinions   in   Boone   and

Trent,     our   Supreme      Court    authored    a    third   opinion,     Capital

Outdoor Advertising, Inc. v. City of Raleigh, 337 N.C. at 159,

446   S.E.2d     at   294    [hereinafter      Capital    Outdoor].     In   Capital

Outdoor,     the      plaintiffs      filed    a   complaint    challenging      the

constitutionality of a city ordinance. Id. at 153, 446 S.E.2d at

291. The defendant moved to dismiss the complaint under Rule

12(b)(6), and the motion was heard on 29 October 1991, during
                                        -8-
the 28 October 1991 session. Id. at 154, 446 S.E.2d at 292. The

trial court granted the motion on 4 November 1991, after the

expiration of the previous session. Id. Relying on the “ample

power” of the legislature “to establish, define[,] and limit the

jurisdiction of the Superior Courts,” the Supreme Court affirmed

the trial court’s out-of-session order under section 7A-47.1 and

Rule    6(c)   of   the   Rules   of   Civil    Procedure      as   “two    separate

statutes authorizing the execution and entry of the dismissal

order of the trial judge out of session . . . .” Id. at 155–59,

446 S.E.2d at 292–94. Capital Outdoor is controlling precedent

in this case.

       As a preliminary matter, we note the apparent contradiction

in these three cases. Boone stated that orders entered out of

session and out of term are invalid based on absence of the

trial    court’s    jurisdiction       and    held    that   the    out-of-session

order in that case was invalid for the same reason. Boone, 310

N.C. at 287–88, 311 S.E.2d at 555. Capital Outdoor implicitly

overruled Boone as it pertains to orders entered out of session.

Capital Outdoor, 337 N.C. at 158, 446 S.E.2d at 294. Trent later

applied    Boone    to    determine     that    the    trial    court      erred   by
                                         -9-
entering its order “out of term and out of session.”4 Though the

language in Trent suggests that it was reinstating Boone in its

entirety,   the    holding    in   that    case     is     limited    to   an   order

entered out of term. Trent, 359 N.C. at 586, 614 S.E.2d at 500.

      Relying on established principles of stare decisis, we read

these   cases     together   to    the    extent     that     they    represent     a

reasonable, practicable, and stable interpretation of the law.

See Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc.,

285 N.C. 467, 473, 206 S.E.2d 141, 145–46 (1974) (“The law must

be characterized by stability if [people] are to resort to it

for rules of conduct. These considerations have brought forth

the   salutary    doctrine    of   stare        decisis    which     proclaims,    in

effect, that where a principle of law has become settled by a

series of decisions, it is binding on the courts and should be

followed    in    similar    cases.”).         Applying    those     principles    to

Boone, Capital Outdoor, and Trent, the resulting rule is that

the superior court is divested of jurisdiction when it issues an

out-of-term      order   substantially         affecting    the    rights   of    the

parties unless that order is issued with the consent of the

parties. If the court issues an order out of session, however,

4
  The Trent Court was clearly aware of the Capital Outdoor
opinion, citing it for the definition of “term” and “session.”
Trent, 359 N.C. at 585, 614 S.E.2d at 499.
                                 -10-
the court is not divested of jurisdiction as long as either

section 7A-47.1 or Rule 6(c) is applicable. See Trent, 359 N.C.

at 586, 614 S.E.2d at 500; Capital Outdoor, 337 N.C. at 158, 446

S.E.2d at 294.

    Rule 6(c) has no bearing on this case. It is a rule of

civil procedure, and this is a criminal matter. However, section

7A-47.1 is a general rule of judicial procedure and applies to

both criminal and civil cases. See N.C. Gen. Stat. § 7A-2(1)

(stating that the purpose of Chapter 7A is to create a place for

“all statutes concerning the organization, jurisdiction[,] and

administration   of   each   division   of   the   General   Court   of

Justice”). In Capital Outdoor, the Court stated that section 7A-

47.1 and Rule 6(c) are separate authorities for an order entered

out of session. Therefore, either may be used to establish the

trial court’s jurisdiction, if applicable. Here, section 7A-47.1

applies to validate the trial court’s out-of-session order.

    Section 7A-47.1, entitled “[j]urisdiction in vacation or in

session,” provides as follows:

         In any case in which the superior court in
         vacation has jurisdiction, and all the
         parties unite in the proceedings, they may
         apply for relief to the superior court in
         vacation, or during a session of court, at
         their    election.  Any   regular   resident
         superior court judge of the district or set
         of   districts   as defined   in  G.S.   7A-
                              -11-
         41.1(a)5 and any special superior court judge
         residing in the district or set of districts
         and the judge regularly presiding over the
         courts of the district or set of districts
         have concurrent jurisdiction throughout the
         district or set of districts in all matters
         and proceedings in which the superior court
         has jurisdiction out of session; provided,
         that in all matters and proceedings not
         requiring a jury or in which a jury is
         waived, any regular resident superior court
         judge of the district or set of districts
         and   any   special   superior  court   judge
         residing in the district or set of districts
         shall     have     concurrent    jurisdiction
         throughout the district or set of districts
         with the judge holding the courts of the
         district or set of districts and any such
         regular or special superior court judge, in
         the     exercise     of    such    concurrent
         jurisdiction, may hear and pass upon such
         matters and proceedings in vacation, out of
         session or during a session of court.

N.C. Gen. Stat. § 7A-47.1 (2013) (re-codified in 1969 from N.C.

Gen. Stat. § 7-65).

    “[I]n vacation” jurisdiction, as described in section 7A-

47.1, arises from the trial court’s

         general jurisdiction of all “in chambers”
         matters arising in the district. The general
         “vacation” or “in chambers” jurisdiction of
         a regular judge arises out of his general
         authority. Usually it may be exercised

5
  “Regular resident superior court judge of the district or set
of districts” means a regular superior court judge who is a
resident judge of any of the superior court districts
established under section 7A-41. N.C. Gen. Stat. § 7A-41.1
(2013).
                                   -12-
           anywhere in the district and it is never
           dependent upon and does not arise out of the
           fact that [the judge] is at the time
           presiding over a designated term of court or
           in a particular county. As to [the judge],
           it is limited, ordinarily, to the district
           to which he is assigned by statute.

Baker v. Varser, 239 N.C. 180, 188, 79 S.E.2d 757, 763 (1954)

(citations   and   internal    quotation   marks   omitted).   The   Baker

court’s description is based on a prior version of section 7A-

47.1, then-codified as section 7-65. See Baker, 239 N.C. at 187–

88, 79 S.E.2d at 763; see also 1969 N.C. Sess. Laws 1377, ch.

1190, sec. 47 (re-codifying section 7-65 as section 7A-47.1).

Section 7-65 is substantially similar to section 7A-47.1 except

that the word “session,” as used in 7A-47.1, was written as

“term” or “term time” in section 7-65. See Baker, 239 N.C. at

187–88, 79 S.E.2d at 763. The change from “term” and “term time”

to “session” tracks the 1962 amendments to the North Carolina

Constitution, which “changed the word ‘term’ to ‘session’ when

referring to the period of time during which superior court

judges are assigned to court . . . .” See Capital Outdoor, 337

N.C. at 154 n.1, 446 S.E.2d at 291 n.1; see also N.C. Const.

art. IV, § 9(2). This change comports with the rule discussed

above,   i.e.,   that   in   vacation   jurisdiction   applies   only   to

orders entered out of session, not those entered out of term.
                              -13-
    We   note   that   Baker’s   description   of   in   chambers

jurisdiction, stating that the exercise of such jurisdiction is

not dependent on the judge’s presence in the county, conflicts

in part with our opinion in House of Style Furniture Corp. v.

Scronce, where we cited the

         uniform holding in this jurisdiction that,
         except by consent, or unless authorized by
         statute, a judge of the [s]uperior [c]ourt,
         even in his own district, has no authority
         to hear a cause or to make an order
         substantially affecting the rights of the
         parties, outside the county in which the
         action is pending.

33 N.C. App. 365, 369, 235 S.E.2d 258, 260 (1977) (citing Bisnar

v. Suttlemyre, 193 N.C. 711, 138 S.E. 1 (1927)) [hereinafter

House of Style]. Nonetheless, House of Style is not controlling

in this case.

    The plaintiffs in House of Style filed their complaint in

Alexander County on 24 September 1975. Id. at 366, 235 S.E.2d at

259. The following year, the defendants moved to dismiss the

plaintiff’s claims and for entry of default judgment. Id. That

motion was heard in Iredell County before a judge of judicial

district 22, which included both Alexander County and Iredell

County. Id. Six days after the hearing, the trial court filed

its order dismissing the plaintiffs’ claims and entering default
                                       -14-
judgment.6 Id. at 367, 235 S.E.2d at 259. On appeal, we vacated

the trial court’s order and judgment because we could not find

any statute authorizing the trial judge to conduct a hearing out

of county. Id. at 369, 235 S.E.2d at 261 (“[The parties] did not

consent for the motion to be heard in Iredell County[,] and our

research fails to disclose any statute authorizing [the judge]’s

action in that county.”).

      Though    House     of   Style   was    filed   seventeen    years    after

Baker, it does not discuss that opinion. See id. In addition,

neither    House     of    Style    nor   its    cited      authority,    Bisnar,

discusses section 7A-47.1 or its predecessor, section 7-65. See

id.; see also Bisnar, 193 N.C. at 711, 138 S.E. at 1. Instead,

the   House     of   Style     Court   relies   on    the    “uniform    holding”

described above. See House of Style, 33 N.C. App. at 369, 235

S.E.2d at 260. This Court is bound by House of Style as it

pertains   to    orders      in   criminal    cases   arising    from    hearings

occurring out of county.7 In re Civil Penalty, 324 N.C. 373, 384,



6
  Neither our opinion in House of Style nor the record on file
for that case specifies whether the trial court filed its order
in Alexander County or Iredell County. See id.; 909 N.C. App.
Records and Briefs No. 7622SC901, 59–65 (1976).
7
  Rule 7(b) of the North Carolina Rules of Civil Procedure was
amended in 2005 to allow motions heard out of county. 2005 N.C.
Sess. L. 163, H.B. 514, section 1. The wording was changed in
2011 to specifically allow motions “in a civil action in a
                                      -15-
379   S.E.2d    30,    36–37    (1989).      House   of    Style   provides    no

direction, however, on the validity of an order in a criminal

case arising from a valid hearing, but entered while the judge

is sitting in another county. See House of Style, 33 N.C. App.

at    369,   235     S.E.2d    at   260.      Therefore,    pursuant   to     our

discussion, supra, we conclude that section 7A-47.1 constitutes

statutory authority to justify an order entered in a criminal

case while the judge who heard the case in the proper county is

sitting in another county within the district when the order is

entered. See N.C. Gen. Stat. § 7A-47.1. As a result, House of

Style has no impact on this case because Defendant’s motion was

properly     heard    in   Craven   County.    Accordingly,    Judge   Alford’s

out-of-session order is proper even though it was issued while

he was sitting in Carteret County.

      Finally, we point out that in chambers jurisdiction under

section 7A-47.1 does not require the consent of the parties. E-B

Grain Co. v. Denton, 73 N.C. App. 14, 24, 325 S.E.2d 522, 528–29



county that is a part of a multicounty judicial district” to be
heard in another county “which is part of that same judicial
district with the permission of the senior resident superior
court judge of that district . . . .” 2011 N.C. Sess. Laws 317,
S.B. 586, section 1. Therefore, our opinion in House of Style is
no longer applicable in civil cases as long as the senior
resident superior court judge permits the case to be heard out
of county. See N.C.R. Civ. P. 7(b)(4) (2013).
                                       -16-
(1985)   (“We    believe      [the     trial   court      judge]    clearly   had

authority     under     [section]    7A-47.1   to    hear   [the]    plaintiff’s

motion . . . , even though [the] defendant’s counsel objected.

To   interpret   the     statute     [according     to   Defendant’s   argument]

would mean that no superior court judge could hear any matter,

whether in or out of session, without ‘all the parties uniting

in the proceedings.’”). Therefore, as provided by section 7A-

47.1, a trial court may exercise in chambers jurisdiction in a

nonjury matter arising in his or her district to enter an order

out of session and without the consent of the parties. See N.C.

Gen. Stat. § 7A-47.1; Capital Outdoor, 337 N.C. at 158, 446

S.E.2d at 294.

      Here, there is no evidence in the record to indicate that

the parties consented to the trial court’s entry of its 11 April

2013 order out of session. Nonetheless, Defendant’s motion for

post-conviction DNA testing did not require the presence of a

jury, the hearing on the motion was conducted while Judge Alford

was sitting in Craven County Superior Court, and Judge Alford

remained in District II at the time he filed the written order.

For these reasons, section 7A-47.1 operated to allow the trial

court    to     issue     this      out-of-session       order.     Accordingly,

Defendant’s first argument is overruled.
                                    -17-
      II. Defendant’s Motion for Post-Conviction DNA Testing

      The standard of review for the denial of a motion for post-

conviction 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’s conclusions of law are
            reviewed de novo.

State v. Gardner, __ N.C. App. __, __, 742 S.E.2d 352, 354

(2013). At the hearing on a motion for appropriate relief, the

defendant   has   “the   burden    . . .     of   establishing   the    facts

essential to his claim by a preponderance of the evidence.”

State v. Hardison, 143 N.C. App. 114, 120, 545 S.E.2d 233, 237

(2001)   (citation   and    internal       quotation   marks   omitted).     A

conclusory statement, alone, is not sufficient to satisfy this

burden. Gardner, __ N.C. App. at __, 742 S.E.2d at 356 (stating

that the defendant’s burden of showing materiality in a motion

for   post-conviction      DNA    testing     “requires   more   than      [a]

conclusory statement that the ability to conduct the requested

DNA testing is material to [his] defense”) (citations, internal

quotation marks, and brackets omitted).

      On appeal, Defendant argues that the trial court’s order

should be reversed because his motion and amended affidavit,
                                  -18-
together, demonstrated the necessary conditions for the court to

grant his motion for post-conviction DNA testing under section

15A-269. In response, the State asserts that section 15A-269 is

not applicable in this case. Alternatively, the State contends

that Defendant failed to show how DNA testing was material to

his case and failed to demonstrate that there are “newer and

more accurate tests that would be significantly more accurate

and   probative   of   the   identity    of   the   [true]   perpetrator.”

Finally, the State argues that — even if the allegations in the

affidavit support a finding of materiality — Defendant waived

his right to test any evidence before a jury by entering an

Alford guilty plea. We affirm the trial court’s order on grounds

that Defendant failed to adequately establish that newer and

more accurate tests would identify the perpetrator or contradict

prior test results. We do not address the State’s argument that

Defendant is not entitled to post-conviction DNA testing because

he entered an Alford plea.



           (1) Background

      Under section 15A-269,

           (a) A defendant may make a motion . . . for
           performance of DNA testing . . . if the
           biological   evidence  meets  all  of   the
           following conditions:
                              -19-


              (1) [The evidence is] material to the
              defendant’s defense.

              (2) [The evidence is] related to the
              investigation   or    prosecution that
              resulted in the judgment.

              (3) [The evidence 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 . . .
              subsection (a) . . . 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.

N.C. Gen. Stat. § 15A-269 (2013) (emphasis added).
                                  -20-
    Given    the   allegations   in   Defendant’s   motion    and   amended

affidavit,8 the trial court made the following pertinent findings

of fact and conclusion of law:

            10. . . . [D]efendant has failed stated
            [sic] how . . . additional DNA testing would
            be    material     to  his    defense. . . .
            [D]efendant    merely makes   a   conclusory
            statement.

            11. . . . [D]efendant has failed to show how
            “newer and more accurate testing” [w]ould be
            significantly more accurate and probative of
            the identity of the perpetrator.

            . . . .

            . . . [D]efendant has failed       to   meet     all
            requirements of § 15A-269.

    On appeal, Defendant concedes that the statements in his

pro se motion are insufficient to justify post-conviction DNA

testing under section 15A-269, but argues that the additional

statements in his amended affidavit sufficiently “discuss [his]

reasoning for entering his Alford plea, the DNA mixture that did

not exclude or isolate him, his cohabitation with the victim,

and his understanding that more accurate methods of DNA testing



8
  Though the State does not contest the propriety of Defendant’s
amended affidavit, we note that amendments to the analogous
motion for appropriate relief are permissible under N.C. Gen.
Stat. § 15A-1415. Thus, amendments to a motion for post-
conviction DNA testing are similarly permissible pursuant to
standards prescribed in section 15A-1415.
                                         -21-
are now available” to justify relief under section 15A-269. We

disagree.

             (2) Applicability of Section 15A-269

         The State argues that section 15A-269 is not applicable in

this case because Defendant seeks testing to show a lack of

biological evidence. For support, Defendant cites to our opinion

in   State    v.    Brown,   where      we    commented      that   section   15A-269

“provides for testing of ‘biological evidence’ and not evidence

in general.” 170 N.C. App. 601, 609, 613 S.E.2d 284, 289 (2005),

superseded by statute on other grounds, State v. Norman, 202

N.C. App. 329, 332–33, 688 S.E.2d 512, 515 (2010). This argument

is without merit.

         In Brown, the defendant, a former assistant principal, was

indicted for and convicted of attempted second-degree rape of a

former student. Id. at 602, 613 S.E.2d at 285. Defendant did not

appeal that conviction. Id. at 603, 613 S.E.2d at 285. As a

result, evidence in the form of a torn blouse and pants was

turned over to the local police department.                         Id.   Five months

later, Defendant filed a motion for post-conviction DNA testing

of   a    torn     blouse,   a   pair    of        pants,   an   undergarment,     nail

clippings     and    hair    samples,        and    other   items   related   to    his

conviction. Id. at 603, 609, 613 S.E.2d at 285, 288–89. Despite
                                          -22-
this    motion,    the   blouse     and    jeans    were   destroyed   after   the

victim indicated that she did not want them returned. Id. The

other evidence had never been collected and was not available

for testing. See id. at 603–04, 613 S.E.2d at 286. One month

later, the trial court denied the defendant’s motion because “no

. . .    testing could be conducted.” Id. at 603, 613 S.E.2d at

286.

       On appeal, this Court declined to review the trial court’s

decision because Article 13, which deals with the DNA database

and    databank,   did   not   at    that    time    include   a   provision   for

appellate    review      of    an    order       denying   post-conviction     DNA

testing.9 Id. at 607, 613 S.E.2d at 287. After concluding that we

had no authority to review the defendant’s petition for writ of

certiorari, we also declined to review the matter pursuant to

Rule 2 of the North Carolina Rules of Appellate Procedure. Id.

at 608, 613 S.E.2d at 288. In so holding, we explained that no

manifest injustice was present in the case because the defendant

was asking for testing to “show a lack of DNA evidence, thereby

corroborating his testimony[, which denied the allegations made

at trial].” Id. at 609, 613 S.E.2d at 288–89. Commenting that

9
  Appellate review of an order denying a defendant’s motion for
DNA testing is now appealable as of right under section 15A-
270.1 (2013).
                                       -23-
section    15A-269     did    not    apply    when    a    defendant    seeks    to

demonstrate a “lack of biological evidence” and noting that the

defendant was only charged with attempted rape, not actual rape,

we   concluded    that      “the    absence   of     DNA   evidence    would    not

necessarily exonerate [the] defendant.” Id. at 609, 613 S.E.2d

at 289.

      Unlike the defendant in Brown, Defendant here is seeking

“[a] conclusive test on the biological and other samples taken

into evidence in this matter.” He is not seeking to show a lack

of DNA evidence.         Accordingly, Brown        does not operate to bar

Defendant’s motion.

            (3) Accuracy and Probative Value of Newer Tests

      The State also argues that the trial court properly denied

Defendant’s motion because Defendant failed to demonstrate “how

‘newer and more accurate testing’ would be significantly more

accurate and probative of the identity of the perpetrator.” We

agree.

      In   his   pro   se    motion    for    post-conviction     DNA    testing,

Defendant referenced discussions with “DNA [e]xperts,” described

a “new technique known as ‘Touch DNA’ that allows [f]or the

amplification and analysis of very minute amounts [o]f cellular

/ DNA material,” and alleged that the items sought to be tested
                                           -24-
“can now be subjected to newer and more accurate testing which

would provide results that are significantly more accurate and

probative of the identity of the perpetrator [o]r accomplice, or

have a reasonable probability of . . . contradicting prior test

results.”      In    his    amended    affidavit,    Defendant       provided    the

following additional information:

            7. It is my understanding that, since 2003
               when this case was initiated, more
               accurate methods of DNA testing have been
               developed and put in place in forensic
               laboratories, and such methods would have
               a reasonable probability of contradicting
               the prior test results.

            8.      Had more accurate DNA testing methods
                    excluded me as the perpetrator of this
                    crime, the result of this case would have
                    been different, inasmuch as I would not
                    have entered an Alford guilty plea, but
                    would have submitted the matter to a jury
                    at trial.

These allegations do not establish that the requested DNA tests

are “significantly more accurate and probative of the identity

of    the   perpetrator          or   accomplice    or    have       a   reasonable

probability of contradicting prior test results” under section

15A-269(a)(3)(b).

      As we noted in State v. Foster, a mere conclusory statement

is insufficient to establish materiality. __ N.C. App. __, __,

729   S.E.2d     116,      120   (2012).    Similarly,   such    a   statement    is
                                          -25-
insufficient       to    establish       that    a    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. See id. Rather, the defendant must provide specific

reasons that the requested DNA test would be significantly more

accurate and probative of the identity of the perpetrator or

accomplice     or       that     there   is     a     reasonable     probability         of

contradicting the previous test results. See N.C. Gen. Stat. §

15A-269.

       In this case, Defendant’s mere allegations that “newer and

more    accurate     testing”       methods      exist,     “which    would     provide

results that are significantly more accurate and probative of

the    identity     of   the     perpetrator        [o]r   accomplice,     or     have   a

reasonable     probability          of    . . .       contradicting        prior     test

results” are incomplete and conclusory. Even though he named a

new method of DNA testing, he provided no information about how

this method is different from and more accurate than the type of

DNA testing used in this case. Without more specific detail from

Defendant or some other             evidence,         the trial court       could not

adequately     determine          whether       additional     testing       would       be

significantly more accurate and probative or have a reasonable
                                   -26-
probability   of   contradicting    past   test   results.   For   these

reasons, we conclude that the court properly denied Defendant’s

motion for post-conviction DNA testing. Accordingly, Defendant’s

second argument is overruled, and the trial court’s order is

    AFFIRMED.

    Judges STEELMAN and DAVIS concur.
