An unpublished opinion of the North Carolina Court of Appeals does not constitute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


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1188

                                   Filed: 19 May 2015

Carteret County, No. 03 CRS 404, 50433

STATE OF NORTH CAROLINA

              v.

LUIS OVANDO


       Appeal by defendant from order entered 18 September 2013 by Judge

Benjamin G. Alford in Carteret County Superior Court.             Heard in the Court of

Appeals 3 March 2015.


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

       William D. Spence for defendant-appellant.


       DIETZ, Judge.


       Defendant Luis Ovando appeals from the trial court’s order denying his motion

for post-conviction DNA testing. Ovando pleaded guilty to first degree statutory rape

and incest between near relatives in 2003 after raping his own six-year-old daughter.

The State’s case against Ovando did not rely on any biological evidence that could be

DNA tested, but instead rested on the victim’s severe vaginal lacerations that

required hospitalization and surgery, the victim’s statement that “Dad did something
                                  STATE V. OVANDO

                                  Opinion of the Court



to me,” and the statements of Ovando’s brother, who was present in the home when

the crime occurred.

      Ten years later, in 2013, Ovando filed a motion for post-conviction DNA testing

and requested appointment of counsel to assist him. The trial court denied both his

motion for DNA testing and his request for appointed counsel. Ovando appealed both

rulings.

      For the reasons set forth below, we affirm. Post-conviction DNA testing is

permitted only if the defendant shows that the biological evidence to be tested is

material to his defense. Similarly, appointment of counsel is permitted only if the

defendant shows that the allegations in his motion, if true, would be material to his

defense. Because Ovando did not state any reasons why the testing is material,

because the State’s case against Ovando did not rely on any biological evidence, and

because Ovando pleaded guilty and admitted to the factual basis of his crime, we

affirm the trial court’s order denying his request for testing and denying his request

for appointed counsel.

                          Facts and Procedural History

      On 29 July 2003, Ovando pleaded guilty to first degree statutory rape and

incest between near relatives. The victim was Ovando’s six-year-old daughter and

she had identified Ovando as the perpetrator of her sexual abuse. The victim’s

statements were corroborated by her severe physical injuries including vaginal



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                                   Opinion of the Court



lacerations that resulted in serious blood loss and hospitalization. The victim stated

that “Dad did something to me” and that Ovando told her not to tell anyone, especially

her mother.

      Ovando’s brother was present in the home during this time and witnessed

Ovando and the victim go into a back room alone. Ovando emerged stating that he

had “cut his finger.” Ovando asked his brother to leave the home to pick up the

victim’s mother. When Ovando’s brother and the victim’s mother returned, the victim

was bleeding from her vagina and complaining of abdominal pain. They immediately

took her to the hospital. While being treated for her injuries, medical personnel used

a rape kit to collect any biological evidence. The SBI lab tested the rape kit but found

no evidence of semen or other incriminating biological evidence.

      Ovando pleaded guilty and admitted under oath that he was “in fact guilty” of

first degree statutory rape and incest with his own daughter. He swore that he

understood that he was giving up his right to be tried by a jury and his “other

constitutional rights relating to a trial by jury.” He also swore that no one “made any

promises or threatened [him] in any way to cause [him] to enter this plea against [his]

wishes,” that he was making the plea “of [his] own free will, fully understanding what

[he is] doing.” Ovando was sentenced to 288-355 months imprisonment.




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                                   Opinion of the Court



      On 17 November 2003, the trial court entered an order for the evidence in

Ovando’s case to be destroyed. In accordance with this court order, all evidence

concerning Ovando’s case was destroyed on 11 July 2005.

      On 21 May 2013, Ovando filed a motion to locate and preserve evidence, a

motion for post-conviction DNA testing, and an affidavit of actual innocence. In his

motion, Ovando stated that “On information and belief, the following items were

related to the investigation or prosecution of the crime with which the defendant was

charged: A. Blood, B. Skin Cells, C. Saliva, D. Pants, E. Hair, F. Bra, G. Cigarette

butts, H. Sweat, I. Vaginal Swabs, J. Anal Swabs, K. Blouse, L. Pubic Hairs, M.

Semen, N. Fecal Stains, O. Other items of evidence.” He alleged that “the test [sic]

run by the North Carolina State Bureau of Investigation Crime Lab are insufficient

and that the defendant is entitled to a more thoroughly [sic] and proper examination.”

He further alleged that “present day DNA Technology” would “allow[ ] for the testing

of the above listed items in evidence, as the same could go a long way towards proving

the defendant’s innocence.”

      In his motion, Ovando indicated that the items listed were “not subject to DNA

testing, or . . . 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 or accomplice, or have reasonable probability of the [sic] contradicting

prior test results.” He concluded that “the requested DNA Testing is material to the



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                                    Opinion of the Court



defendant’s defense.” Additionally, Ovando requested appointment of counsel under

N.C. Gen. Stat. § 15A-269(c).

        The State filed a response to Ovando’s motion on 13 September 2013. In its

response, the State argued that Ovando’s motion should be denied because further

DNA testing is not possible as the evidence had been destroyed pursuant to a court

order, the “SBI report that was generated was not incriminating of the Defendant,”

and “there was a factual basis for the Defendant’s plea of guilty.” Therefore, the State

concluded that “the Defendant is not entitled to the relief sought.” On 18 September

2013, the trial court entered an order denying Ovando’s motion for post-conviction

DNA testing and refusing his request for appointment of counsel. The trial court

adopted most of the State’s response in its order.

        Ovando timely filed a handwritten notice of appeal on 24 September 2013.

However, there is no indication that a copy of the notice of appeal was served on the

Carteret County District Attorney’s Office.

                                        Analysis

   I.      Sufficiency of Notice of Appeal & Petition for Writ of Certiorari

        Ovando filed a petition for writ of certiorari with this Court requesting that we

hear his appeal despite his failure to serve a copy of his written notice of appeal on

the Carteret County District Attorney’s Office as required by N.C. R. App. P. 4(a)(2).

We exercise our discretion to allow that petition under N.C. R. App. P. 21(a)(1) and



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                                     Opinion of the Court



consider Ovando’s appeal.

   II.      Denial of Motion for Post-Conviction DNA Testing

         Ovando argues that the trial court erred in denying his motion for post-

conviction testing under N.C. Gen. Stat. § 15A-269. Because we hold that Ovando

did not show that the evidence for which he seeks testing is material to his defense,

we reject this argument.

         The standard of review for a trial court’s denial of a motion for post-conviction

DNA testing “is analogous to the standard of review for a motion for appropriate

relief.”   State v. Gardner, ___ N.C. App. ___, ___, 742 S.E.2d 352, 354 (2013).

“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.” Id.

         Under the post-conviction DNA testing statute, a defendant may make a

motion for post-conviction 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.



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                                  Opinion of the Court



                          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.

N.C. Gen. Stat. § 15A-269(a) (2013) (emphasis added).

      This Court has held that satisfying the three conditions contained in N.C. Gen.

Stat. § 15A-269(a) is “a condition precedent to a trial court’s statutory authority to

grant a motion under N.C.G.S. § 15A-269.” State v. Foster, 222 N.C. App. 199, 204,

729 S.E.2d 116, 120 (2012) (citation omitted). “The burden is on defendant to make

the materiality showing required by N.C. Gen. Stat. § 15A-269(a)(1).” Id. at 205, 729

S.E.2d at 120.

      Evidence is “material” under N.C. Gen. Stat. § 15A-269(a)(1) “if there is a

reasonable probability” that it “would result in a different outcome in the jury’s

deliberation.” State v. Hewson, 220 N.C. App. 117, 122, 725 S.E.2d 53, 56 (2012). “[A]

mere conclusory statement is insufficient to establish materiality.” State v. Collins,

___ N.C. App. ___, ___, 761 S.E.2d 914, 922 (2014).

      In Foster, this Court held that the defendant’s conclusory statement that “[t]he

ability to conduct the requested DNA testing is material to the Defendant’s defense”

with “no other explanation of why DNA testing would be material to his defense” was

insufficient to meet the burden of establishing materiality. 222 N.C. App. at 205, 729



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                                   Opinion of the Court



S.E.2d at 120 (internal quotation marks omitted); see also Gardner, ___ N.C. App. at

___, 742 S.E.2d at 356. Here, on the issue of materiality, Ovando’s motion stated that

“[t]he ability to conduct the requested DNA Testing is material to the defendant’s

defense,” a statement identical to the one this Court found to be insufficient in both

Foster and Gardner. The motion also states that the requested testing “could go a

long way towards proving the defendant’s innocence,” but gives no further

explanation of how DNA testing would be material to his defense.            Under our

precedent as articulated in Foster and Gardner, Ovando has failed to satisfy the

materiality requirement in § 15A-269(a)(1).        Thus, the trial court did not err in

denying Ovando’s motion.

      Moreover, given the fact that Ovando pleaded guilty and admitted to all the

specific details of his crime, his showing of materiality would require substantially

more than the mere assertions in his motion. Ovando pleaded guilty knowingly and

of his own free will, admitting that he was “in fact guilty” of first degree statutory

rape and incest involving his own daughter. Importantly, the evidence supporting

Ovando’s guilty plea was not based on DNA evidence, but rather on the victim’s

severe physical injuries, the victim’s statements, the victim’s identification of Ovando

as the perpetrator of her sexual abuse, and the corroborating statements of the

victim’s mother and Ovando’s brother. In fact, the SBI tests conducted in 2003 did




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                                  Opinion of the Court



not reveal the presence of semen and did not incriminate Ovando. Given these facts

and his admission of guilt, Ovando cannot satisfy his burden.

      We note that this Court has twice declined to decide whether a defendant ever

can establish materiality for post-conviction DNA testing after entering a guilty plea,

and we again decline to reach that issue here. See State v. Turner, ___ N.C. App. ___,

___, 768 S.E.2d 356, 359 (2015) (“[W]e do not reach the State's argument that a

defendant can never establish materiality for postconviction DNA testing after

entering a guilty plea.”); Collins, ___ N.C. App. at ___, 761 S.E.2d at 920 (“We do not

address the State’s argument that Defendant is not entitled to post-conviction DNA

testing because he entered an Alford plea.”). But as we observed above, when a

defendant enters a guilty plea and admits to the factual basis of the criminal charges,

as is the case here, it will be exceedingly difficult to demonstrate the materiality

prong of N.C. Gen. Stat. § 15A-269(a)(1).        Because Ovando cannot satisfy the

applicable statutory factors, the trial court properly denied his request for DNA

testing.

   III.    Appointment of Counsel under § 15A-269(c)

      Ovando also argues that the trial court erred in refusing to appoint him counsel

pursuant to N.C. Gen. Stat. § 15A-269(c). He contends that he met the requirements

of that section and therefore he was entitled to appointment of counsel to assist him

with his motion for DNA testing. We disagree.



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                                   Opinion of the Court



      Section 15A-269(c) provides that

             the 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 rules adopted by the
             Office of Indigent Defense Services upon a showing that the
             DNA testing may be material to the petitioner’s claim of
             wrongful conviction.

N.C. Gen. Stat. § 15A-269(c) (2013) (emphasis added). Ovando argues that the

statute is ambiguous and should be interpreted in accordance with the rule of lenity

to mean that a trial court must appoint counsel to assist a defendant in his motion

for DNA testing if the defendant is indigent. See State v. Crawford, 167 N.C. App.

777, 780, 606 S.E.2d 375, 377-78 (2005). But this same argument was rejected by

this Court in Gardner. ___ N.C. App. at ___, 742 S.E.2d at 355. In Gardner, this

Court “concluded that there is no ambiguity in [§ 15A-269(c)]” and “[b]ecause there is

no ambiguity, the rule of lenity does not apply.” Id. “[A]ccording 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’s claim that he or she was

wrongfully convicted.” Id. (citation omitted). In order to satisfy the materiality

requirement for appointment of counsel, a defendant “must make an allegation

addressing the materiality issue that would, if accepted, satisfy N.C. Gen. Stat. § 15A-

269(a)(1).” Id.



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                                   Opinion of the Court



      One panel of this Court cannot overturn another and therefore we are bound

by the Gardner holding. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37

(1989). As a result, Ovando was not entitled to counsel unless his motion contained

allegations that, if accepted, would satisfy the materiality prong of N.C. Gen. Stat.

§ 15A-269(a)(1). As explained in Part II above, Ovando fell far short of satisfying that

materiality requirement.     Accordingly, the trial court properly denied Ovando’s

request for court-appointed counsel to represent him.

                                     Conclusion

      For the reasons discussed above, we affirm the trial court’s order denying

Ovando’s motion for post-conviction DNA testing and denying his request for

appointment of counsel.

      AFFIRMED.

      Judges CALABRIA and McCULLOUGH concur.

      Report per Rule 30(e).




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