815 S.E.2d 9
N.C. Ct. App.2018Background
- Defendant Flavio Velasquez-Cardenas was convicted of first-degree murder and sexual assault; he confessed and trial evidence included a hair match to the defendant.
- In 2016 Defendant moved under the DNA Database and Databank Act (N.C.G.S. § 15A-266 et seq.) to locate/preserve evidence and for post-conviction DNA testing; the trial court denied the motion for lack of reasonable probability that testing would change the verdict.
- Defendant appealed the denial under N.C.G.S. § 15A-270.1; appointed appellate counsel filed an Anders brief saying no non-frivolous issues existed and requested court review; Defendant filed a pro se addendum.
- The State argued Anders protections are not available on appeals under § 15A-270.1 because the right to counsel in such post-conviction proceedings is statutory, not constitutional, relying on Finley.
- The Court considered whether it has authority to apply Anders-type review in statutory post-conviction DNA appeals and whether counsel legitimately invoked Anders procedures here.
- On the merits the Court reviewed the record under Anders/Kinch and concluded the appeal was wholly frivolous and affirmed the trial court's denial of DNA testing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anders protections apply on appeal under N.C.G.S. § 15A-270.1 | State: Anders not constitutionally required in post-conviction appeals; thus not available here | Defendant: Appellate counsel properly invoked Anders and court should conduct Anders-type review | The Court held Anders-type review is permissible for appeals under § 15A-270.1 (discretionary state-level protection); Anders procedures apply here |
| Whether this Court must or may exercise Anders review when not constitutionally required | State: No constitutional right; Anders not mandatory | Defendant: Counsel followed Anders; defendant entitled to appellate review of record | Court: Federal constitution doesn’t require Anders for § 15A-270.1 appeals, but state appellate courts have authority to adopt/provide Anders-type protections and will do so here (limited to these appeals) |
| Whether the trial court erred in denying post-conviction DNA testing under N.C.G.S. § 15A-269 | N/A (State argued denial was correct) | Defendant: Additional DNA testing could show he was not the perpetrator | The Court, after Anders review, found Defendant’s claims irrelevant to DNA evidence and wholly frivolous; affirmed denial of testing |
| Preservation/scope: Whether Rule 28 or appellate rules bar addressing Anders issue when not raised | State: Rule 28 limits scope; Anders issue not preserved | Defendant: Filing of Anders brief preserved issue | Court: Majority invoked Rule 2 to address the recurring legal question and decided to settle the law; concurrence emphasized Rule 28 limits and that Anders review is discretionary, not required |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures for appointed counsel filing a no-merit brief on first appeal of right)
- Pennsylvania v. Finley, 481 U.S. 551 (U.S. 1987) (Anders protections not constitutionally required for post-conviction proceedings)
- Thomsen v. State, 369 N.C. 22 (N.C. 2016) (state courts’ jurisdictional authority derives from legislature)
- In re Harrison, 136 N.C. App. 831 (N.C. Ct. App. 2000) (declined to extend Anders to termination-of-parental-rights appeals but exercised discretion to review)
- In re N.B., 183 N.C. App. 114 (N.C. Ct. App. 2007) (discussion urging reconsideration of Anders application in juvenile/TPR context)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for effective assistance of counsel applied in state contexts)