in the Court of Appeals 16 October 2017.
by Defendant from order entered 26 September 2016 by Judge
Paul C. Ridgeway in Superior Court, Wake County. No. 09 CRS
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.
Procedural and Factual Background
found Flavio Velasquez-Cardenas
("Defendant") 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2013 WL 3131252 (2013) (unpublished)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.
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.
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.
Applicability of Anders
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. §
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.
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."
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.
Review Mandated by the United States Constitution
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
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.
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.
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. 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