State v. Briggs , 257 N.C. App. 500 ( 2018 )

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
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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
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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
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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
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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
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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
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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.
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