An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted i n accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-660
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                      Randolph County
                                              No. 98 CRS 6012
WILLARD LEE MARTIN, JR.,
     Defendant.


      Appeal by defendant from Order entered on 31 April 2012 by

Judge Vance Bradford Long in Superior Court, Randolph County.

Heard in the Court of Appeals 12 December 2013.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Sherri Horner Lawrence, for the State.

      Daniel F. Read, for defendant-appellant.


      STROUD, Judge.


      Willard    Martin,     Jr.     (“defendant”)    appeals    from    an   order

entered 31 April 2012 denying his motions to locate and preserve

evidence for DNA testing and for DNA testing. We affirm.

                                I.     Background
                                             -2-
     On 6 July 1998, defendant was indicted in Randolph County

for the murder of Leo Plumer.1                     At trial, the State presented

physical    evidence,         including      Mr.     Plumer’s      bloody      shirt,    and

testimony        to      support       its         allegations         that     defendant

intentionally shot and killed Mr. Plumer. A jury found defendant

guilty     of    first       degree    murder.       The    trial      court    sentenced

defendant       to    life   imprisonment      without       parole     on     20    October

1999.

     Since      his    conviction,      defendant          has   attempted      to    pursue

multiple forms of post-conviction relief. Defendant appealed to

this Court and we found no error by unpublished opinion on 17

October 2000. State v. Martin, 140 N.C. App. 387, 540 S.E.2d 80

(2000)     (unpublished).        Our     Supreme       Court      denied       defendant’s

petition for writ of certiorari, State v. Martin, 353 N.C. 391,

547 S.E.2d 36 (2001), and his later petition for writ of habeas

corpus,    State v. Martin, 560 S.E.2d 548, 548-49                            (N.C. 2002)

(unpublished).         Defendant also filed a federal petition for writ

of habeas corpus, which the United States District Court for the

Middle District of North Carolina denied. Martin v. Beck, 2002

WL   32397088         (M.D.N.C.)       (unpublished).            The   Fourth        Circuit

1
  The indictment listed the decedent’s name as Leo Palmer, but
the order from which defendant appeals lists his last name as
Plumer. For purposes of this opinion, we will follow the
spelling in the order and refer to him as Mr. Plumer.
                                              -3-
dismissed his appeal from that order for failure to make “a

substantial showing of the denial of a constitutional right.”

Martin    v.   Beck,      53    Fed.    Appx.       713     (unpublished)     (4th    Cir.

2003).

       After    exhausting            both    direct        appeals   and     collateral

attacks, defendant filed a motion with the superior court in

Randolph County to locate and preserve certain evidence from his

trial and to test Mr. Plumer’s shirt for DNA. The trial court

ordered the district attorney to investigate the status of the

requested      evidence.        The    district       attorney     reported    that   the

evidence requested by defendant, including Mr. Plumer’s shirt,

could not be located and that there was a “Notice of Intent to

Dispose Evidence” form                in the court file            indicating that it

would be disposed of if not removed within ninety days after

certification of a final decision of the appellate division, but

there was no disposition order or receipt for removal indicating

what     happened      to      the     evidence.          The     trial   court   denied

defendant’s motions by order entered 31 April 2012. It concluded

that    because     the     evidence         could    not    be   located,    there   was

nothing to preserve and test. Defendant filed written notice of

appeal on 8 March 2012.2



2
    The trial court did not file the appellate entries and appoint
                               -4-
                  II.   Post-Conviction Motions

    Defendant argues that the trial court erred in denying his

post-conviction motions because there may have been exculpatory

DNA evidence on the victim’s shirt showing that Mr. Plumer was

shot in close proximity, which he contends would support his

theory of an accidental shooting.

    Defendant moved pro se to test Mr. Plumer’s shirt for DNA

under “N.C. Gen. Stat. §§ 15A-269, 7A-454, 7A-455, 7A-315, and

8C-1, Rules 702 and 706.”   He also moved to locate and preserve

evidence from gunshot residue kits and Mr. Plumer’s clothing

under N.C. Gen. Stat. § 15A-268.

         Our 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’s conclusions of law are
         reviewed de novo.




the appellate defender until on or about 28 March 2013. As a
result, defendant did not serve the proposed record on appeal on
the State until over a year after the order was entered.
Nevertheless, defendant filed a motion to deem the record timely
filed, which this Court granted by order entered 19 June 2013.
Therefore, we deny the State’s motion to dismiss the appeal for
failure to take timely action, as the timeliness of defendant’s
filing the record was the sole basis of the motion, and dismiss
defendant’s petition for writ of certiorari as moot.
                                         -5-
State v. Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354

(citation and quotation marks omitted), disc. rev. denied, ___

N.C. ___, 749 S.E.2d 860 (2013).

    On appeal, defendant only argues that the trial court erred

in denying his motion to test Mr. Plumer’s shirt for DNA under

N.C. Gen. Stat. § 15A-269 (2011) and that the denial of his

motion violated his right to due process. Therefore, we deem all

other arguments regarding his post-conviction preservation and

testing    motions      abandoned,      including       any   argument     that    the

evidence was required to be preserved under N.C. Gen. Stat. §

15A-268.    N.C.R.      App.    P.   28(a).     Further,      defendant    does    not

challenge any of the trial court’s factual findings. Therefore,

those findings are binding on appeal. State v. Hensley, 201 N.C.

App. 607, 613, 687 S.E.2d 309, 314, disc. rev. denied, 364 N.C.

244, 698 S.E.2d 662 (2010). Additionally, because he failed to

raise the constitutional issues below, he has failed to preserve

them for our review.             N.C.R. App. P. 10(a)(1); see State v.

Dewalt,    190   N.C.    App.    158,    164,   660     S.E.2d   111,     115   (“Even

alleged    errors    arising     under    the    Constitution      of    the    United

States are waived if defendant does not raise them in the trial

court.”    (citation     and    quotation       marks    omitted)),      disc.    rev.

denied, 362 N.C. 684, 670 S.E.2d 906 (2008).
                                             -6-
       Thus, the only issue left for us to consider is whether the

trial       court’s    factual     findings        support      its     conclusion            that

“there is no evidence and no articles gathered in connection

that can be located and therefore nothing to preserve for DNA

testing” and its decision to deny defendant’s motion. We affirm,

but    on    different      grounds    that       those   relied      on    by    the       trial

court.

       The statutes relied on by defendant, N.C. Gen. Stat. § 15A-

269,    the    post-conviction         DNA    testing        statute,      and    N.C.        Gen.

Stat. § 15A-268, the companion evidence preservation statute,

were    enacted       by    2001     N.C.    Sess.     Laws     282,       §4    and     became

effective      1    October    2001.        The    statutes     apply       to    “evidence,

records, and samples in the possession of a governmental entity

on or after October 1, 2001.” 2001 N.C. Sess. Laws 282, § 6. The

trial       court     found   that     none       of   the    evidence          was    in     the

possession of the relevant governmental entities. The notice of

intent to dispose of the items to be tested was filed on or

about 6 February 2001, after his final direct appeal had been

exhausted.            The   notice    indicated        that     the     items         would    be

disposed thirty days after the notice had been mailed.                                There is

no evidence that any governmental agency was in possession of

the items after 1 October 2001. Therefore, defendant cannot show
                                     -7-
that the statute under which he requested relief applies to him.

Accordingly,    we    affirm   the     trial   court’s   order   denying

defendant’s motion.

                           III. Conclusion

    There was no evidence that the items that defendant sought

to test were in the possession of a governmental agency on or

after 1 October 2001. Therefore, the DNA testing statute does

not apply to defendant and we affirm the trial court’s order

denying defendant’s motion for DNA testing under N.C. Gen. Stat.

§ 15A-269.

    AFFIRMED.

    Judges HUNTER, JR., Robert N. and DILLON concur.

    Report per Rule 30(e).
