State v. Ovando , 773 S.E.2d 573 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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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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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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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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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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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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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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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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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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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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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