in the Court of Appeals 8 March 2018.
by defendant from order entered 14 December 2015 by Judge
David L. Hall in Forsyth County No. 11 CRS 50213, 9998-99
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
Wade Leon Shaw appeals from the trial court's order
denying his "Request for Post Conviction DNA Testing and
Discovery" pursuant to N.C. Gen. Stat. § 15A-269.
We vacate and remand.
2011, defendant was indicted for second-degree burglary,
first-degree kidnapping, assault by strangulation,
first-degree rape, first-degree sexual offense, and attaining
habitual felon status. The matter was tried before a jury
beginning on 30 January 2012.
evidence presented at defendant's trial included, among
other things, testimony by the State's expert in forensic
DNA analysis concerning the DNA evidence that was recovered
from the victim. The DNA analyst concluded that
defendant's DNA "cannot be excluded as a contributor
to the DNA mixture" that was recovered, and that
"the chance of selecting an individual at random that
would be expected to be included for the observed DNA mixture
profile" was approximately, "for the North Carolina
black population, 1 in 14.5 million[.]" Defendant was
convicted on all charges, and this Court affirmed
defendant's convictions in May 2013.
October 2015, defendant filed a pro se motion with
the trial court entitled "Request for Post Conviction
DNA Testing and Discovery N.C. Gen. Stat. § 15A-269,
§ 15A-902." This motion simply paraphrased the
applicable statute, stating only that defendant was moving
for post-conviction DNA testing "because the evidence is
material to [his] defense, is related to the investigation or
prosecution . . ., and it was previously tested and the
requested DNA retesting would provide results that are
significantly more accurate and probative, having a
reasonable probability of contradicting prior test
results." Defendant also provided a sworn affidavit
maintaining his innocence.
defendant moved for post-conviction DNA testing pursuant to
N.C. Gen. Stat. § 15A-269, the trial court decided that
"the caption of Defendant's Motion notwithstanding,
this Court will review it as a Motion for Appropriate
Relief" pursuant to N.C. Gen. Stat. § 15A-1411(c).
The trial court then determined that defendant had not
complied with the service and filing requirements provided
for motions for appropriate relief in N.C. Gen. Stat. §
15A-1420(a)(2). The trial court also concluded that
"Defendant does not allege newly discovered evidence or
other genuine issues that would require an evidentiary
hearing, and that the claims raised either were or could have
been raised upon direct appeal[, ]" which are grounds
for denial of a motion for appropriate relief pursuant to
N.C. Gen. Stat. § 15A-1419. The trial court denied
defendant's motion on 14 December 2015.
June 2017, defendant filed a petition for writ of certiorari
asking this Court to review the trial court's order
denying his motion for post-conviction DNA testing. We
granted certiorari on 10 July 2017.
appeal, defendant argues that the trial court erred in
denying his motion for post-conviction DNA testing because
the facts at issue are sufficient to satisfy "the
criteria for additional DNA testing" provided in N.C.
Gen. Stat. § 15A-269. Defendant also argues that his
motion for post-conviction DNA testing was denied in error by
the trial court "based on a statute [pertinent ...