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State v. Velasquez-Cardenas

Court of Appeals of North Carolina

April 17, 2018

STATE OF NORTH CAROLINA
v.
FLAVIO VELASQUEZ-CARDENAS

          Heard in the Court of Appeals 16 October 2017.

          Appeal by Defendant from order entered 26 September 2016 by Judge Paul C. Ridgeway in Superior Court, Wake County. No. 09 CRS 203008

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily H. Davis, for Defendant-Appellant; and Flavio Jo Velasquez-Cardenas, pro se.

          MCGEE, CHIEF JUDGE.

         I. Procedural and Factual Background

         A jury found Flavio Velasquez-Cardenas ("Defendant")[1] guilty on 16 February 2012 of the first-degree murder of Patsy Barefoot ("Ms. Barefoot"), based on both premeditation and deliberation and the felony murder rule. This Court upheld Defendant's conviction on direct appeal in State v. Velasquez-Cardenas, 228 N.C.App. 139, 746 S.E.2d 22, 2013 WL 3131252 (2013) (unpublished) ("Velasquez-Cardenas I), and additional facts can be found in that opinion.

         As recounted in Velasquez-Cardenas I, Defendant gave a statement to police admitting that he killed and sexually assaulted Ms. Barefoot in her apartment in Wake County, North Carolina, before stealing her car and credit card and driving to Florida, where he was ultimately apprehended. Id. at *1-3. In Velasquez-Cardenas I, there was testimony that the State Bureau of Investigation ("SBI") also "confirmed that the hair found in Decedent's hand was a match to Defendant's hair[.]" Id. at *2. Testifying at trial, Defendant admitted to inadvertently killing Ms. Barefoot after they engaged in consensual sex, claiming he "'put her against the wall' in an attempt to calm her down" when she became upset that he was using cocaine in her bathroom. Id.

         In April 2016, Defendant filed a motion to locate and preserve evidence and for post-conviction DNA testing pursuant to N.C. Gen. Stat. §§ 15A-268 and 269 (2017), which are sections of the DNA Database and Databank Act of 1993 (the "Act"). N.C. Gen. Stat. § 15A-266 et seq. The trial court denied Defendant's motion by order entered 26 September 2016. After reviewing the record, including Defendant's confession and the other evidence adduced at trial, the trial court concluded that Defendant had "failed to allege or establish that there [wa]s any reasonable probability that the verdict would have been more favorable to [him] had DNA testing been conducted on the evidence prior to [his] conviction." See N.C. G.S. § 15A-269(b)(2). Defendant appealed as a matter of right pursuant to N.C. Gen. Stat. § 15A-270.1 (2017), and Counsel was appointed to represent Defendant on appeal. Id. ("The defendant may appeal an order denying the defendant's motion for DNA testing under this Article, including by an interlocutory appeal. The [trial] court shall appoint counsel in accordance with rules adopted by the Office of Indigent Defense Services upon a finding of indigency."). Upon reviewing the denial of Defendant's request for the preservation and testing of DNA, Defendant's appellate counsel perfected Defendant's appeal, but determined that she was unable to identify any issue with sufficient merit to support a meaningful argument for relief. Acting consistent with the requirements set forth in Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), Defendant's appellate counsel advised Defendant of his right to file written arguments with this Court and provided Defendant with the documents necessary for him to do so. She then filed an Anders brief with this Court stating she had been unable to find any meritorious issues for appeal, had complied with the requirements of Anders, and asked this Court to conduct an independent review of the record to determine if there were any identifiable meritorious issues therein. Defendant filed a pro se "Addendum in Support of Anders Brief on 15 May 2017.

         II. Analysis

         A. Applicability of Anders

         In the State's brief, it does not argue that this Court should, upon Anders review, affirm the ruling of the trial court. Instead, apparently for the first time in an appeal, the State makes the argument that the protections provided in Anders and Kinch are not available to defendants appealing orders denying post-conviction DNA-related relief pursuant to N.C. G.S. § 15A-270.1.[2]

         In all prior opinions of this Court involving Anders briefs filed pursuant to an N.C. G.S. § 15A-270.1 appeal, the State has implicitly accepted the validity of the Anders procedure, and simply argued that the defendants' appellate counsel were correct in their determinations that no meritorious issues were identifiable from the trial records. See State v. Riggins, ___ N.C. App. ___, 809 S.E.2d 378 (2018) (unpublished); State v. Bayse, _ N.C. App. ___, 808 S.E.2d 614 (2017) (unpublished); State v. Sayre, ___ N.C.App. ___, 803 S.E.2d 699 (2017) (unpublished); State v. Rios, ___ N.C.App. ___, 803 S.E.2d 698 (2017) (unpublished); State v. Tapia, ___ N.C.App. ___, 799 S.E.2d 909 (2017) (unpublished); State v. Castruita, ___ N.C.App. ___, 798 S.E.2d 440 (2017) (unpublished); State v. Barrera, ___ N.C. App. ___, 798 S.E.2d 440 (2017) (unpublished); State v. Nettles, ___ N.C. App. ___, 797 S.E.2d 715 (2017) (unpublished); State v. Needham, ___ N.C. App. ___, 781 S.E.2d 532 (2016) (unpublished); State v. Harris, 238 N.C.App. 200, 768 S.E.2d 63 (2014) (unpublished); State v. Gladden, 234 N.C.App. 479, 762 S.E.2d 531 (2014) (unpublished); State v. Mickens, 233 N.C.App. 789, 759 S.E.2d 711 (2014) (unpublished); State v. Autry, 215 N.C.App. 390, 716 S.E.2d 89 (2011) (unpublished). In all of those cases, this Court has conducted the Anders review requested without questioning its duty or authority to so do, including addressing the defendants' arguments when they have filed pro se briefs in accordance with Anders and Kinch.

         The State now argues that, because "there is . . . no constitutional right to postconviction proceedings[, ]" "'[t]here is no constitutional right to an attorney in state post-conviction proceedings.'" (Citations omitted). Relying on the United States Supreme Court's opinion in Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed.2d 539 (1987), the State concludes: "Thus, even when an indigent defendant has a state-created right to counsel at post-conviction, 'she has no constitutional right to insist on the Anders procedures which were designed solely to protect' the 'underlying constitutional right to appointed counsel.' Finley, 481 U.S. at 557, 95 L.Ed.2d at 547."

         While we agree with the State, as discussed below, that defendants who appeal pursuant to N.C. G.S. § 15A-270.1 have no constitutional right to seek Anders review, we disagree with the clear implication of the State's argument - that this Court is prohibited from recognizing a right of Anders-type review separate from that constitutionally mandated pursuant to the Anders decision itself and its progeny.

         1. Review Mandated by the United States Constitution

         In Finley, the United States Supreme Court held that "Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel." Finley, 481 U.S. at 555, 95 L.Ed.2d at 545. The Court reasoned:

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process.

Id. at 555, 95 L.Ed.2d at 545-46. For this reason, the Court held that the protections of Anders are not constitutionally mandated in post-conviction proceedings, even when defendants have been provided access to appointed appellate counsel by statute: "[W]e reject respondent's argument that the Anders procedures should be applied to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal[.]" Id. at 556, 95 L.Ed.2d at 546. As explained in Finley, "[s]ince [the defendant] has no underlying constitutional right to appointed counsel in state postconviction proceedings, [he] has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right." Id. at 557, 95 L.Ed.2d at 547.

         The right to counsel on appeal from an order denying post-conviction DNA testing is not of constitutional origin. It is purely a creature of statute, specifically N.C. G.S. § 15A-270.1, which provides as follows:

The defendant may appeal an order denying the defendant's motion for DNA testing under this Article, including by an interlocutory appeal. The court shall appoint counsel in accordance with rules adopted by the Office of Indigent Defense Services upon a finding of indigency.

Id. For these reasons, appellate counsel representing defendants based upon the right of appeal granted pursuant to N.C. G.S. § 15A-270.1 are not constitutionally mandated to conform to the requirements established in Anders when they are unable to identify any meritorious grounds for appellate review. However, our review of this issue does not end here.

         The United States Supreme Court is charged with determining what constitutes the minimum rights and protections guaranteed by the United States Constitution. States are of course free to permit, or require, procedures that afford protections beyond what is constitutionally mandated.[3] Therefore, because the General Assembly has created a general right of appeal from the denial of motions made pursuant to the Act, this Court clearly has jurisdiction to consider the request for Anders-type review made by Defendant's appellate counsel. State v. Thomsen,369 N.C. 22, 25, 789 S.E.2d 639, 641-42 (2016) ("because the state constitution gives the General Assembly the power to define the jurisdiction of the Court of Appeals, only the General Assembly can take away the jurisdiction that it has conferred"). ...


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