               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-583

                               Filed: 16 January 2018

Union County, No. 13 CRS 052761

STATE OF NORTH CAROLINA,

              v.

ANTRAVIOUS QUANEALIOUS BRIGGS, Defendant.


        Appeal by defendant from order entered 13 July 2016 by Judge Christopher W.

Bragg in Union County Superior Court. Heard in the Court of Appeals 15 November

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N.
        Callahan, for the State.

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


        ZACHARY, Judge.


        The issue presented is whether the trial court lacked subject matter

jurisdiction to enter an order denying defendant’s motion for post-conviction DNA

testing pursuant to N.C. Gen. Stat. § 15A-269 while defendant’s appeal from the

original judgment of conviction was pending. We conclude that the trial court lacked

subject matter jurisdiction, and vacate the court’s order.

                                       Background
                                   STATE V. BRIGGS

                                   Opinion of the Court



      Defendant Antravious Quanealious Briggs was convicted of attempted second-

degree sexual offense and sentenced to 73-100 months in prison on 10 November

2014. Defendant gave notice of appeal the same day. On 6 April 2016, while his appeal

was pending in this Court, defendant filed a pro se Motion to Locate and Preserve

Evidence and Motion for Post-Conviction DNA Testing pursuant to N.C. Gen. Stat. §

15A-269. The trial court denied defendant’s motion on 13 July 2016, while defendant’s

appeal was still pending. Defendant timely filed notice of appeal from the denial of

his motion for post-conviction DNA testing. On 16 August 2016, this Court issued an

opinion in defendant’s original appeal, vacating his sentence and remanding the case

to the trial court for re-sentencing. State v. Briggs, ___ N.C. App. ___, 790 S.E.2d 671

(2016). The mandate issued on 6 September 2016.

      On appeal, defendant argues that the trial court lacked subject matter

jurisdiction to enter the order denying his motion for post-conviction DNA testing

because the trial court was divested of jurisdiction over the case from the date on

which defendant gave his initial notice of appeal of the 10 November 2014 judgment

until the date on which this Court’s mandate issued.

                                   Standard of Review

      “Whether a trial court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal.” State v. Herman, 221 N.C. App. 204, 209, 726 S.E.2d

863, 866 (2012) (citation omitted). Under de novo review, this Court considers the



                                          -2-
                                    STATE V. BRIGGS

                                    Opinion of the Court



matter anew and freely substitutes its own judgment for that of the trial court. State

v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008). Lack of subject matter

jurisdiction may be raised by any party “at any time, even for the first time on

appeal[.]” State v. Kostick, 233 N.C. App. 62, 72, 755 S.E.2d 411, 418 (2014).

                                          Discussion

      Subject matter jurisdiction is “the authority of a court to adjudicate the type of

controversy presented by the action before it, and is conferred upon the courts by

either the North Carolina Constitution or by statute.” State v. Petty, 212 N.C. App.

368, 371, 711 S.E.2d 509, 512 (2011) (citations and quotation marks omitted)

(alterations omitted). “A trial court must have subject matter jurisdiction over a case

in order to act in that case.” State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d

623, 625 (2008). Where a court enters an order without jurisdiction to do so, the order

is void ab initio, State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182 (1986), and

“the appropriate action on the part of the appellate court is to arrest judgment or

vacate [the] order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273

S.E.2d 708, 711 (1981).

      Generally, in criminal cases, “a particular judge’s jurisdiction over a particular

case terminates at the end of the session at which a particular case is heard and

decided.” Petty, 212 N.C. App. at 374, 711 S.E.2d at 513. Even where a statute allows

the trial court to act beyond the close of the original session, “[t]he jurisdiction of the



                                           -3-
                                    STATE V. BRIGGS

                                    Opinion of the Court



trial court with regard to the case” will remain divested as of the filing of a notice of

appeal. N.C. Gen. Stat. § 15A-1448(a)(3) (2016); State v. Williams, 177 N.C. App.

725, 731, 630 S.E.2d 216, 221 (2006), disc. review denied, 360 N.C. 581, 636 S.E.2d

198 (2006); Petty, 212 N.C. App. at 373, 711 S.E.2d at 513. Once a notice of appeal

has been filed, the trial court retains jurisdiction only over matters that are “ancillary

to the appeal[.]” N.C. Gen. Stat. § 15A-1453 (2016); State v. Davis, 123 N.C. App. 240,

242, 472 S.E.2d 392, 393 (1996). A matter that is ancillary to the appeal typically

involves the correction of a clerical error, as doing so does not implicate the trial court

“exercis[ing] any judicial discretion or undertak[ing] any judicial reasoning[.]” State

v. Everette, 237 N.C. App. 35, 43, 764 S.E.2d 634, 640 (2014); see e.g., Davis, 123 N.C.

App. at 242-43, 472 S.E.2d at 393-94.         On the other hand, a “trial court lacks

jurisdiction to correct judicial errors, or address issues never litigated, . . . following

valid entry of notice of appeal.” State v. Price, 233 N.C. App. 386, 394, 757 S.E.2d

309, 314 (2014). Such non-ancillary matters may only be resolved once the pending

appeal has been finalized. See State v. Dixon, 139 N.C. App. 332, 338, 533 S.E.2d

297, 302 (2000).

      Pursuant to N.C. Gen. Stat. § 15A-269, a defendant “may make a motion before

the trial court that entered the judgment of conviction against the defendant for

performance of DNA testing[.]” N.C. Gen. Stat. § 15A-269(a) (2016). The trial court

must grant the motion for post-conviction DNA testing if it determines that



                                           -4-
                                   STATE V. BRIGGS

                                   Opinion of the Court



             (1) [the testing]
                    [(a)] Is material to the defendant’s defense.
                    [(b)] Is related to the investigation or
                    prosecution that resulted in the judgment.
                    [(c)] Meets either of the following conditions:
                            [i.] It was not DNA tested previously.
                            [ii.] 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[;]

             (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(a)-(b) (2016).

      In the instant case, it is clear from the text of N.C. Gen. Stat. § 15A-269 that

the trial court’s order entered pursuant thereto did not constitute a matter ancillary

to the original judgment on appeal. The fact that N.C. Gen. Stat. § 15A-269

authorized the trial court to act beyond the close of the original session did not render

that matter ancillary, or otherwise vest the trial court with jurisdiction while the

appeal was pending. See Petty, 212 N.C. App. at 373, 711 S.E.2d at 513 (“Th[e] power

of a court to hear and determine (subject matter jurisdiction) is not to be confused

with the way in which that power may be exercised in order to comply with the terms



                                           -5-
                                   STATE V. BRIGGS

                                  Opinion of the Court



of a statute (authority to act).”). Rather, the plain language of Section 15A-269

directly implicates an exercise of the trial court’s judicial discretion and judicial

reasoning, Everette, 237 N.C. App. at 43, 764 S.E.2d at 640, and requires the trial

court to make determinations on new issues never litigated. Price, 233 N.C. App. at

394, 757 S.E.2d at 314. Accordingly, in this case, the trial court’s order entered

pursuant to N.C. Gen. Stat. § 15A-269 was not “ancillary” to defendant’s initial

pending appeal.

      The State, however, asserts that a motion for post-conviction DNA testing is

not a “motion in the original cause,” and thus may be decided by the trial court while

the case is pending appeal, because N.C. Gen. Stat. §§15A-269-15A-270.1 do not

explicitly provide otherwise. To illustrate this point, the State directs our attention

to the language of N.C. Gen. Stat. § 15A-1411(b), which provides that a motion for

appropriate relief is “a motion in the original cause and not a new proceeding.” N.C.

Gen. Stat. § 15A-1411(b) (2016). Because a motion for appropriate relief is a motion

in the original cause, it is the appellate court, rather than the trial court, that has

jurisdiction to rule on such a motion while the case is pending on appeal. Williams,

177 N.C. App. at 731, 630 S.E.2d at 221. According to the State, because a motion for

post-conviction DNA testing is not a motion for appropriate relief, and because the

statute governing post-conviction DNA testing does not explicitly state that the

motion is part of the “original cause and not a new proceeding,” defendant’s motion



                                         -6-
                                   STATE V. BRIGGS

                                  Opinion of the Court



constituted a new proceeding over which the trial court retained its jurisdiction. We

do not find this argument persuasive.

      Upon review of the provisions of N.C. Gen. Stat. §§15A-269-15A-270.1,

defendant’s motion for post-conviction DNA testing was, in fact, a motion in the

original cause. If the trial court were to grant defendant’s motion for post-conviction

DNA testing and the results were favorable to defendant, the appropriate relief would

have been for the trial court to (1) vacate and set aside the judgment; (2) discharge

defendant; (3) resentence defendant; or (4) grant defendant a new trial. N.C. Gen.

Stat. § 15A-270(c). Each of these provisions relates to the original case filed against

defendant, and not to any ancillary matter over which the trial court retains

jurisdiction during the pendency of an appeal. Moreover, permitting the trial court to

rule on a defendant’s motion for post-conviction DNA testing while an appeal from

the case is pending would run the risk of the trial court granting relief pursuant to

N.C. Gen. Stat. § 15A-270(c) that conflicts with the mandate issued by the appellate

court. See N.C. Gen. Stat. § 15A-1448 (official commentary) (“Problems have arisen

in the processing of appeals when post-trial motions are pending.”).

      In the instant case, the trial court was divested of jurisdiction when defendant

filed notice of appeal from the judgment entered on his conviction for attempted

second-degree sex offense on 10 November 2014. Because defendant’s motion for post-

conviction DNA testing opened an inquiry into a case that this Court was already



                                         -7-
                                  STATE V. BRIGGS

                                 Opinion of the Court



reviewing, the trial court lacked jurisdiction to rule on it until after the case was

returned to the trial court by way of mandate, which issued on 6 September 2016. We

therefore must vacate the trial court’s order denying defendant’s motion for post-

conviction DNA testing. Felmet, 302 N.C. at 176, 273 S.E.2d at 711.

                                       Conclusion

      For the foregoing reasons, we conclude that the trial court did not have

jurisdiction to enter its 13 July 2016 order denying defendant’s motion for post-

conviction DNA. Accordingly, the order is


      VACATED.

      Judges STROUD and ARROWOOD concur.




                                        -8-
