STADING, Judge.

Ryan Pierre Brown (“defendant”) petitions for a writ of certiorari, claiming the trial court erred in summarily denying his motion for appropriate relief (“MAR”).

Defendant asserts the trial court improperly denied his MAR because an evidentiary hearing was not held to make the ultimate legal determination at issue in this matter.

For the reasons set forth below, we deny defendant’s petition for a writ of certiorari and dismiss his appeal.

STATE V. BROWN

Opinion of the Court

I. Factual and Procedural History On 11 August 2015, officers from the Greensboro Police Department responded to a report of “shots being fired” at an apartment complex. Upon arrival, they observed the victim, Jermaine Hayes, suffering from a gunshot wound. Mr. Hayes later died at the hospital. Kelsey Bell, the tenant of the apartment and girlfriend of the victim, sold Xanax to another woman named Brenda Goins. On her outing to buy the drug, Ms. Goins was accompanied by defendant and Demario Danzy. While Ms. Bell and Ms. Goins conducted the drug transaction inside the apartment, Mr. Hayes walked outside of his girlfriend’s residence to where defendant and Mr. Danzy were located. Subsequently, Ms. Goins exited the apartment while Ms. Bell remained inside of her residence. Shortly thereafter, Ms. Bell heard gunshots and witnessed Mr. Hayes hastily re-enter the apartment and subsequently collapse on the floor. Ms. Bell was acquainted with Ms. Goins and identified her as well as the vehicle at the crime scene. Police officers obtained a surveillance video showing defendant, Mr. Danzy, and Ms. Goins together. Later, Mr. Danzy was arrested and told investigators that he was the driver of the vehicle that transported defendant and Ms. Goins to Ms. Bell’s apartment. Additionally, Mr. Danzy admitted that he and defendant had a common gang association and Mr. Hayes was involved in a rival gang. Mr. Danzy reported that after some discussion between the three males outside of the apartment, Ms. Goins exited the apartment and Mr. Hayes turned to walk away. Mr. Danzy recounted that defendant then pulled out a handgun and fired a

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Opinion of the Court

number of shots at Mr. Hayes. Mr. Danzy claims this action by defendant startled him and he drove away with Ms. Goins and defendant in the vehicle. Ms. Goins provided a statement to law enforcement that was “pretty similar to Mr. Danzy’s [statement].” The information provided by Ms. Goins was different from Mr. Danzy’s statement in that “[s]he did indicate that Mr. Danzy apparently was a little bit more involved with . . . egging on [defendant].” When Ms. Goins returned to the vehicle, she heard defendant say he would shoot Mr. Hayes, and Mr. Danzy encouraged him to go ahead and do it. She then reported that defendant pulled out a handgun and started firing, that it shocked everybody in the car, including Mr. Danzy, and they drove off. On 28 September 2015, defendant was indicted for one count of first-degree murder and one count of robbery with a dangerous weapon.^[1] On 4 October 2017, defendant pled guilty to second-degree murder and robbery with a dangerous weapon pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The trial court judge entered a consolidated sentence of 192 to 243 months imprisonment. On 11 April 2022, defendant filed a MAR pursuant to N.C.G.S. § 15A-1415(c), purporting that Ms. Goins had “recant[ed] her previous testimony and identification of Defendant as the shooter.” The basis for defendant’s motion was an affidavit signed by Ms. Goins on 6 January 2022, claiming that her statement made in 2015 to law

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Opinion of the Court

enforcement identifying defendant as the shooter was incorrect. She now maintains that the co-defendant, Mr. Danzy, shot and killed Mr. Hayes. On 22 April 2022, “[u]pon a review of the motion, the court file, the applicable statutory and case law,” the trial court denied defendant’s MAR without holding an evidentiary hearing since “the claim alleged involves only legal issues.” The order contained findings noting, among other things, that “[t]here was no testimony[,] the case never went to trial[,] [and] defendant chose to plead guilty.” Moreover, the trial court found there was “no recanted testimony[,]” as “Brenda Goins never gave any testimony or any statement under oath.” Accordingly, the trial court concluded that defendant “entered a voluntary plea,” and Ms. Goins’s proffer was not testimony as anticipated by N.C.G.S. § 15A-1415(c). Defendant entered a notice of appeal with the trial court on 4 May 2022 and petitioned this Court to issue a writ of certiorari on 21 July 2022. II. Analysis In this matter, defendant claims that there are meritorious issues for our consideration such that we should grant his petition for writ of certiorari. Under N.C. Gen. Stat. § 15A-1422, “the court’s ruling on a motion for appropriate relief pursuant to G.S. 15A-1415 is subject to review . . . [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari.” N.C. Gen. Stat. § 15A-1422(c)(3) (2021). “The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit . . . review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the

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Opinion of the Court

trial court ruling on a motion for appropriate relief.” N.C. R. App. P. 21. “A petition for the writ must show merit or that error was probably committed below. Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (internal citations omitted). For the reasons discussed below, defendant’s petition for the writ does not “show merit or that error was probably committed below.” Id. First, defendant contests the trial court’s determination that “[t]here is no recanted testimony.” N.C. Gen. Stat. § 15A-1415(c) provides in relevant part that “a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable . . . at the time of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony. . . .” N.C. Gen. Stat. § 15A-1415(c) (2021) (emphasis added). Since we are presented with a question of statutory interpretation, this inquiry is a question of law, subject to de novo review. State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009). Our “primary endeavor . . . in construing a statute is to give effect to legislative intent. . . . If the statutory language is clear and unambiguous, the court eschews statutory construction in favor of giving the words their plain and definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 276–77 (2005) (citations omitted). As a preliminary matter, we note that our Supreme Court has analyzed the word verdict in the context of a separate statute involving postconviction DNA

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Opinion of the Court

testing. See State v. Alexander, 380 N.C. 572, 587-89, 606, 869 S.E.2d 215, 227-28, 239 (2022) (Newby, C.J., concurring in the result). In any event, considering the matter before us, the operative word at issue is testimony—which is defined as “[e]vidence that a competent witness under oath or affirmation gives at a trial or in an affidavit or deposition.” Testimony, Black’s Law Dictionary (7th ed. 1999). Evident from the plain meaning of the text of the statute, as a precondition to prevail pursuant to defendant’s claims made in his petition, this matter would have required that a witness previously provided testimony in some form, which was subsequently recanted. Comparatively, the unsworn statement given to law enforcement—upon which defendant purports reliance for his guilty plea—does not properly align with the definition of testimony. Consequently, defendant’s claims contained in his petition fall outside of the parameters of N.C. Gen. Stat. § 15A-1415(c). Defendant’s reliance upon State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760 (1987), and State v. Britt, 320 N.C. 705, 260 S.E.2d 660 (1987), is misplaced as the logic of each case involves the subsequent recanting of sworn testimony provided by a witness during a jury trial. Additionally, defendant and the dissent cite State v. Howard, 247 N.C. App. 193, 783 S.E.2d 786 (2016), and State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), as a basis to grant defendant’s petition for writ of certiorari and vacate the ruling of the trial court. Unlike the present matter, in State v. Howard, a witness provided an affidavit repudiating a statement that defendant alleged “rendered his trial testimony false”—after providing sworn testimony at trial.

STATE V. BROWN

Opinion of the Court

247 N.C. App. at 210, 783 S.E.2d at 797. Furthermore, the effort to analogize State v. Brigman fails for similar reasons—the witness testified at the defendant’s trial. 178 N.C. App. at 83–84, 623 S.E.2d at 502. The dissent would have us employ the jurisprudence of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), to resolve the issue before us. In Crawford, the United States Supreme Court recounted an extensive historical basis, including the trial of Sir Walter Raleigh, underpinning its analysis specific to the Sixth Amendment’s Confrontation Clause. 541 U.S. at 43–50, 124 S. Ct. at 1359–63; U.S. CONST. amend. VI. The Court’s detailed account aimed to highlight that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 541 U.S. at 50, 124 S. Ct. at 1363. In stark contrast, here, defendant was confronted with no such evil and could have availed himself of rights afforded under the Constitution. The record shows that defendant pled guilty pursuant to North Carolina v. Alford and swore to his transcript of plea that contained an understanding that his decision forfeited his right to trial in which he could “confront and cross examine witnesses against” him. Had defendant’s case proceeded to trial and the same statement was admitted in furtherance of a conviction, without an opportunity to confront the witness, Crawford’s analysis and definitional application would be relevant. 541 U.S. at 68– 69, 124 S. Ct. at 1374. Moreover, had defendant’s case proceeded to trial and the

STATE V. BROWN

Opinion of the Court

witnesses testified in conformity with this statement, but later recanted the testimony that led to a conviction, an evidentiary hearing would be appropriate under N.C. Gen. Stat. § 15A-1415(c). However, neither of these scenarios occurred here and defendant was not deprived of his constitutional or statutory rights. Defendant was provided those rights but elected to forego them in favor of a plea bargain to a lesser- included offense consolidated with another unrelated felony offense for sentencing. It would be a leap of logic for this Court to hold that the jurisprudence carefully crafted to prevent deprivation of the constitutional right to confront witnesses— fundamental to our system of justice—should be extended to the specific legal issue presented in this matter. Thus, we decline to conflate the Supreme Court’s logic applied to Confrontation Clause jurisprudence to the concerns sought to be addressed by N.C. Gen. Stat. § 15A-1415(c) in determining the meaning of testimony. Defendant’s final argument, that the trial court erred in failing to hold an evidentiary hearing, points to the language in N.C. Gen. Stat. § 15A-1420, which states that “[a]ny party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit.” N.C. Gen. Stat. § 15A-1420(c)(1) (2021). However, this subsection of the statute also requires that “[t]he court must determine, on the basis of these materials and the requirements of this subsection, whether an evidentiary hearing is required to resolve questions of fact.” Id. Furthermore, N.C. Gen. Stat. § 15A-1420 requires that “[t]he court must determine

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Opinion of the Court

the motion without an evidentiary hearing when the motion and supporting and opposing information present only questions of law.” N.C. Gen. Stat. § 15A- 1420(c)(3). As noted in defendant’s cited case, State v. Howard: An evidentiary hearing is not automatically required before a trial court grants a defendant’s MAR, but such a hearing is the general procedure rather than the exception. Indeed . . . an evidentiary hearing is mandatory unless summary denial of an MAR is proper, or the motion presents a pure question of law. 247 N.C. App. at 207, 783 S.E.2d at 796 (emphasis added). Indeed, here, the trial court was faced with a determination of law rather than an issue of fact. Therefore, in this matter, the trial court’s summary denial of the MAR was proper. III. Conclusion For these reasons, defendant’s petition for a writ of certiorari is denied and his appeal is dismissed. DISMISSED. Judge GORE concurs. Judge RIGGS dissents by separate opinion.

STATE V. BROWN

Opinion of the Court

No. COA22-525 – State v. Brown RIGGS, Judge, dissenting. Mr. Brown entered an Alford plea to the murder of Mr. Hayes, meaning he denied guilt but acknowledged “there [was] sufficient evidence to convince the judge or jury of [his] guilt.” State v. Guinn, 281 N.C. App. 446, 447 n.1, 868 S.E.2d 672, 674 n.1 (2022) (emphasis added) (citations omitted). Among the evidence undergirding Mr. Brown’s guilty plea were two statements that were the only indicia of his identity as the murderer: (1) a written statement from Mr. Danzy that Mr. Brown was the shooter; and (2) a proffer from Ms. Goins corroborating Mr. Danzy’s statement and confirming, based on her eyewitness account, that Mr. Brown killed Mr. Hayes. Mr. Brown was not alone in relying on this evidence in making his Alford plea; the State agreed to the plea and premised its statement of the facts on this evidence at the plea hearing, and the trial court likewise depended on that evidence2 in “first determining that there is a factual basis for the plea” before accepting it. N.C. Gen. Stat. § 15A- 1022(c) (2021). Almost five years later, Ms. Goins—by sworn affidavit—recanted her