COURT OF APPEAL FOR ONTARIO
van Rensburg, George and Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Caleb Nettleton
Appellant
Caleb Nettleton, acting in person
Peter Copeland, appearing as duty counsel
Crown counsel, for the respondent1
Heard: December 5, 2024
On appeal from the convictions entered and the sentence imposed by Justice David Cole of the Ontario Court of Justice on November 28, 2022.
George J.A.:
OVERVIEW
1On August 6, 2022, while the appellant was in custody at the Toronto South Detention Centre (“TSDC”), correctional officers found threatening letters outside the appellant’s cell addressed to the TSDC Security Deputy and to the Superior Court justice who was presiding over the appellant’s then-outstanding dangerous offender proceeding.
2The appellant was charged with two counts of intimidating a justice system participant contrary to s. 423.1(1)(b) of the Criminal Code and one count of uttering a threat to cause death to the TSDC Security Deputy contrary to s. 264.1(1)(a). Later that month, the appellant was charged on a separate Information with uttering a threat to damage property, and with mischief, both relating to his destruction of a laptop in his cell.
3Over the course of several pretrial court appearances, the appellant expressed a desire to plead guilty to the charges on the first Information – two counts of intimidation and one count of uttering a threat – and was prepared to accept the Crown’s proposed sentence. The appellant stated that he would not plead guilty to the mischief count on the second Information, and the Crown agreed to withdraw that charge.
4When the time came for arraignment, the trial judge read out three counts: one count of intimidating a justice system participant, the TSDC Security Deputy; one count of uttering a threat to cause death to the TSDC Security Deputy; and one count of uttering a threat to damage property. The appellant immediately objected, noting that he had not agreed to plead guilty to the mischief2. Crown counsel agreed not to proceed with the threat to damage property count. The trial judge then asked the appellant for his plea, and the appellant affirmed that he would plead guilty. The appellant was never formally re-arraigned.
5The appellant was sentenced to three years’ imprisonment. At his request, the appellant did not receive any credit for the time he had spent in presentence custody. More than two months later, the trial judge, Crown counsel, and the appellant reconvened, and the trial judge imposed several ancillary orders.
ISSUES AND POSITIONS ON APPEAL
6The appellant, with the assistance of retained counsel, initially filed a factum which challenged the convictions on the basis that 1) his guilty pleas were involuntary, uninformed and equivocal; 2) the trial judge erred in making ancillary orders after the plea and sentencing had been completed; and 3) he should be permitted to withdraw his guilty pleas on the residual ground that it would be a miscarriage of justice to allow them to stand. In the alternative, he asked that he receive the standard one-and-a-half days’ credit for each day he spent in presentence custody, and additional credit for the time he spent in “extraordinarily harsh” jail conditions. The appellant also filed a motion seeking to introduce, as fresh evidence, his affidavit sworn February 7, 2024. This affidavit explains why the appellant wanted to plead guilty (and why he did not want to receive credit for presentence custody), and describes his state of mind at the time he entered his pleas. He argued that had this evidence been before the sentencing judge, it would have raised serious questions about the validity of his plea.
7The appellant’s counsel was removed from the record and he was assisted by duty counsel at his appeal hearing. Duty counsel frames the appeal differently. He argues that the cumulative effect of several procedural deficiencies, and their resulting impact on the integrity of this proceeding, should lead us to strike the appellant’s guilty pleas in their entirety. The procedural irregularities highlighted by duty counsel include the fact that the appellant was never properly arraigned on one of the counts of intimidation (against the Superior Court judge presiding over his dangerous offender proceedings) and therefore did not enter a guilty plea to that count, and that the uttering a threat count should have been stayed pursuant to the Kienapple principle. He argues further that the trial judge was functus officio when he made the ancillary orders months after sentencing was completed. Lastly, and like the appellant’s previously retained counsel, duty counsel argues in the alternative that the appellant should have received credit for the time spent in presentence custody and that his sentence should be reduced accordingly.
8The Crown concedes that the appellant was not properly arraigned on the second intimidation count, but submits that this is a curable error under s. 686(1)(b)(iv) of the Criminal Code, since in the circumstances of this case no prejudice occurred. The Crown also argues that the Kienapple principle cannot apply to the intimidation and uttering threat charges, because despite a legal and factual nexus they represent separate delicts. With respect to presentence custody, the Crown submits that the trial judge was not mandated to grant credit, and in any event the appellant specifically asked that the time not be credited. Finally, the Crown asserts that the trial judge had jurisdiction to impose the ancillary orders after the fact.
9I would allow the appeal, set aside the guilty pleas entered by the appellant, and order a new trial. I agree with duty counsel that the appellant was found guilty of an offence for which he had not been properly arraigned, and that the Kienapple principle should have been applied to stay the threatening count. Further, the fresh evidence, which I would admit, as well as red flags that would have been apparent even without that evidence, should have prompted the trial judge to conduct a more comprehensive plea inquiry.
PROCEDURAL HISTORY
First Call Court Appearances
10Following his arrest on August 8, 2022, the appellant repeatedly advised various justices of the peace and judges that he wanted to resolve his charges by pleading guilty:
August 12, 2022 – The appellant appeared before a justice of the peace and on the record inquired about the Crown’s position should he plead guilty. The Crown did not provide an answer and the matter was adjourned.
August 19, 2022 – The appellant appeared before a justice of the peace. The Crown advised that it was still unable to provide its position as it was awaiting input from the complainants. The appellant advised that he would agree to a joint position of “like virtually whatever type of time they want”. The matter was adjourned again.
September 7, 2022 – The appellant appeared before a justice of the peace. The matter was adjourned once again as the Crown was still unable to provide its position on sentence after a plea.
September 8, 2022 – The appellant appeared before a judge (not the trial judge). The Crown provided its global position: upon a guilty plea it would seek three years in custody on all counts, on top of presentence custody. The appellant asked, on the record, whether his acceptance of the Crown’s position would guarantee his transfer to a federal correctional institution. The presiding judge advised that neither the court nor the Crown could make that guarantee.
September 22, 2022 – The appellant appeared before another judge (not the trial judge) to enter a plea. This judge was not comfortable accepting the plea and joint submission from a self-represented accused without knowing more about the appellant and the circumstances of the case. She therefore adjourned the matter to a self-represented judicial pretrial date and encouraged the appellant to retain counsel.
Judicial Pretrial
11On November 9, 2022, the appellant and the Crown appeared before the trial judge for the judicial pretrial. The trial judge observed that he was “dealing with two sets of charges”: the intimidation and threats from August 6, and “some other matters from later in August” (August 29) involving the destruction of a laptop in the appellant’s cell.
12Crown counsel acknowledged that the appellant had “expressed his desire to resolve these matters for some time”. He suggested that, although “[t]he position would have been a joint recommendation for three years on top of any pre-sentence custody that [the appellant] [had] built up”, perhaps the appellant should be given credit for the “month or so” of adjournments.
13The appellant made two requests. First, he informed the Crown that he “would actually prefer not to be afforded any [presentence] credit”. Second, he asked that the count of mischief for the damage to the laptop be withdrawn: “I will plead to the uttering threats, I will plead to the intimidation charges, but I request that the mischief under for the laptop be withdrawn. That’s, that’s my position to enter a guilty plea”.
14The trial judge indicated that he would accept the appellant’s guilty pleas and adjourned the matter to November 28 for that purpose.
Pleas and Sentencing
15On November 28, 2022, the appellant appeared before the trial judge via Zoom. Before the appellant was arraigned and asked to enter his pleas, the trial judge conducted the following brief plea inquiry:
The court: Okay. So let me just – I want to say a few things on the record. Just to be absolutely fair to make sure you haven’t changed your mind between now and then [the judicial pretrial]. The first is, you don’t wish to have counsel to represent you. You wish to represent yourself?
The appellant: That is correct.
The court: Okay. And secondly, you’re aware of what I am likely to impose because that’s what you’re asking for and you don’t want me to give you any time off for the amount of time spent in pre-trial custody.
The appellant: Correct.
16Of note, during this brief inquiry the appellant was never asked whether he understood the essential elements of the offences to which he planned to plead guilty. Nor was he asked whether anyone was pressuring him to plead guilty, or had offered him anything in exchange for his pleas.
17The trial judge and the Crown then had this exchange:
The court: Okay. So, [Mr. Crown], on which charges is he to be arraigned?
The Crown: So, Your Honour, on the last [day] we discussed that, and [the appellant] said that his plea was contingent on the mischief charge being withdrawn. The Crown’s agreeable to that. So, so on the one Information he will be pleading to the two counts of intimidation of a justice system participant and one count of uttering threats, and on the other Information, which I will just pull up right now, he will be pleading to the uttering threats [to damage property], but not to the mischief under on that Information.
18After this exchange the clerk attempted to arraign the appellant, but because of some technical difficulties could not do so. The trial judge stepped in and read three counts to the appellant. He stated that the appellant was charged with: 1) on August 6, 2022, uttering a threat to cause death to the TSDC Security Deputy, contrary to s. 264.1(1)(a) of the Criminal Code; 2) on August 6, 2022, intimidating a justice system participant, namely the TSDC Security Deputy, contrary to s. 423.1(1)(b) of the Criminal Code; and 3) on August 29, 2022, uttering a threat to damage the personal property of the TSDC (the laptop), contrary to s. 264.1(1)(b) of the Criminal Code.
19The appellant immediately reminded the trial judge that he had not agreed to plead guilty to mischief (which is related to the threatening to damage property count). Crown counsel responded:
[T]hat is fine. I don’t completely disagree that those two counts are, are related. So given that there’s going to be a joint recommendation here on the far more serious counts, the Crown’s content to not proceed on the threatening to damage property. That is fine. So he’s pleading guilty to the two counts of intimidating, the one count of threatening and will be sentenced on those, those counts.
20The trial judge confirmed that the second Information, which charged the appellant with mischief and threatening to damage property, would be withdrawn. The trial judge then asked the appellant for his plea “on the other charges”, and the appellant responded, “the plea’s guilty, Your Honour.”
21The Crown then read out the facts relating to the three charges on which the appellant had originally agreed to plead guilty – the two counts of intimidation and the one count of uttering a threat to cause death – and the appellant admitted them. Then, as agreed, the appellant was given a global three-year sentence, one year for each count, to be served consecutively. The Crown did not ask for, and the trial judge did not impose, any ancillary orders.
February 14, 2023 Court Appearance
22Two-and-a-half months later, on February 14, 2023, the Crown and the appellant appeared again before the trial judge. The Crown advised that there had been a problem with the original arraignment and asked that the appellant be arraigned again, this time on the correct charges per the original agreement:
So the clear, clear, clear manifest intention of the court before the plea, upon the finding of guilt, after having read in the facts and upon the sentencing was that he plead to these specific counts. It just so happened that on the arraignment that no one caught he pled to – to a count that he shouldn’t have and didn’t plead to a count that he should have.
23The trial judge told the appellant that there were two options: he could do what the Crown wanted “and have you arraigned on what should have been the – the right charge, fix the error, impose the same sentence, we’d have to talk about that a little bit, but impose the same sentence, so your position would not change, or I could say to [Crown counsel], ‘No, too bad, you’ve got to [go to] the Court of Appeal.’”
24The appellant responded that he was not “comfortable being arraigned with new language” without consulting counsel, and requested that his “guilty plea be struck”. After a break, the Crown stated that it did not want the pleas to be struck, and asked that “things stay as they are”. There was no further discussion about the arraignment or the pleas.
25However, the Crown asked for three ancillary orders: no-contact orders with the complainants, a DNA order, and a weapons prohibition order. While the trial judge expressed some frustration with the Crown for not requesting these orders “before”, he agreed to impose them. Without inviting further submissions from the appellant, the trial judge made the orders.
DISCUSSION
26Given the procedural irregularities throughout these proceedings, addressed below, and in light of the fresh evidence (which I would admit), I would allow the appeal.
There is significant confusion around what the appellant pleaded guilty to
27As discussed above, there were serious procedural irregularities in the appellant’s arraignment and pleas. Three counts were read to the appellant at the arraignment: one count of intimidation, one count of uttering threats to cause death and one count of uttering threats to damage property. The last of these was then withdrawn by the Crown. The trial judge then asked the appellant what his plea was “on the other charges”. The appellant pleaded guilty. The facts relating to the two counts of intimidation and one count of uttering threats to cause death were read out to the appellant and he admitted them. The Information and warrant of committal show that he was convicted of and sentenced on these three charges.
28However, the appellant was never re-arraigned on the count of intimidating a justice system participant in relation to the Superior Court justice. For this reason, and despite the pre- and post-trial discussions, the recorded conviction on the second count of intimidation of a justice system participant simply cannot stand. The appellant was not arraigned on that charge, and it was not made explicit that it was included in the “other charges” when the trial judge asked for his plea. I note further that the trial judge did not expressly identify the counts on which the appellant had been found guilty. He stated only that “[o]n the admitted facts, I’ll make findings of guilt on the charges upon which you have been arraigned.”
29I would reject the Crown’s argument – which relies on this court’s decision in R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 36 O.R. (3d) 643 (C.A.) – that this can be cured by s. 686(1)(b)(iv) of the Criminal Code.
30In Mitchell, this court held that, in the context of convictions after a contested trial, the failure to arraign on a count can be saved by the curative proviso. In my view, in the context of a guilty plea, an accused person’s waiver of a trial on the merits elevates the significance of the arraignment process. The appellant was not formally arraigned on the second intimidation charge, and therefore could not have been found guilty of it.
31It would damage the integrity of the criminal justice system if an accused person could be convicted of an offence for which they were not arraigned or tried. In the circumstances, the appellant could have only properly been convicted of one count of intimidating the TSDC Security Deputy and one count of threatening death to the TSDC Security Deputy.
Kienapple should have operated to stay the threatening count
32I agree with duty counsel that the appellant’s conviction for uttering a threat should have been conditionally stayed pursuant to the Kienapple principle, which operates to prevent multiple convictions where there is a factual and legal nexus connecting more than one offence.
33Here, the factual nexus is obvious: the appellant’s two convictions involved the same complainant and were based on the same set of facts – i.e., the threat and the act of intimidation were identical. The more challenging question, whether there is a sufficient legal nexus, requires an assessment of the different elements of the offences. In R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at para. 32, the Supreme Court offers us some guidance on how to answer this question:
[T]he requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
34In my view, there is a sufficient legal nexus between the counts of intimidation and uttering threats such that Kienapple must apply:
i) the conduct underlying both counts is identical and directed at the same complainant (i.e., the letter to the TSDC Security Deputy);
ii) the intimidation count particularized the underlying conduct as “threatening violence”, which corresponds with the threatening count; and
iii) the threatening count does not contain any additional and distinguishing elements not captured by the intimidation count.
35While the threatening count is less serious than the intimidation count,3 in the circumstances of this case, where the lesser offence (threatening) does not have any additional or distinguishing elements, Kienapple should have been applied. The uttering threat count should therefore have been stayed.
The plea inquiry was insufficient and resulted in prejudice to the appellant
36Section 606(1.1) of the Criminal Code provides that:
A court may accept a plea of guilty only if it is satisfied that
a) the accused is making the plea voluntarily;
b) the accused understands
i) that the plea is an admission of the essential elements of the offence,
ii) the nature and consequences of the plea, and
iii) that the court is not bound by any agreement made between the accused and the prosecutor; and
c) the facts support the charge.
37Although the plea inquiry has been described as mandatory: R. v. G. (D.M), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 42, by virtue of s. 606(1.2), the failure to “fully inquire” into the conditions in s. 606(1.1) “does not affect the validity of the plea.” When someone seeks to strike a guilty plea, and a complete inquiry was not undertaken, the question is whether allowing the plea to stand would amount to a miscarriage of justice: R. v. McIlvride-Lister, 2019 ONSC 1869, at para. 37.
38The appellant’s insistence on not receiving credit for the 112 days he had spent in presentence custody was a red flag that should have alerted the trial judge to the possibility that the appellant’s guilty plea was motivated by something other than an acknowledgment of guilt. In R. v. Hanemaayer, 2008 ONCA 580, 239 O.A.C. 241, at paras. 17-20, this court held that although the plea was voluntary, informed and unequivocal, the appellant had pleaded guilty due to the “powerful inducement” of a reformatory instead of a penitentiary sentence, and the guilty pleas were set aside: see also R. v. Kumar, 2011 ONCA 120, 273 O.A.C. 130, at para. 34.
39At the proceeding on September 8, 2022, the appellant asked the Crown “to see if my willingness to enter a voluntary guilty plea and what would be a joint submission, if [the Crown] would be willing to go on some type of record as supporting or like aiding a Federal like remand as part of my guilty plea.” As noted above, the judge explained that neither the court nor the Crown could promise that, but did say that if the appellant’s sentence was longer than two years he would automatically serve federal time.
40Then, at the proceeding on September 22, 2022, the appellant stated that he did not want to “languish in provincial” or spend another “six months rotting in provincial”. The judge (not the trial judge) asked, “Oh, you’re trying to go to the penitentiary? Is that what’s happening here”? She told the appellant and the Crown that she would not support “a joint recommendation between [the Crown and] a self-represented accused for three years when [she knew] nothing about [the appellant’s] personal circumstances”.
41The trial judge did not demonstrate this same caution, when the circumstances cried out for it, which I find irretrievably taints these plea proceedings.
The fresh evidence
42As noted above, the appellant filed a motion to introduce fresh evidence on appeal. Duty counsel did not take a position, and the Crown did not make any submissions, on this motion. I will address it nonetheless, as it bears on the fundamental question of whether sufficient steps were taken to ensure the integrity of the plea proceedings. As this court held in R. v. Faulkner, 2018 ONCA 174, at para. 87, even where a guilty plea is valid, appellate courts “retain discretion, exercisable in the interest of justice, to receive fresh evidence to explain the circumstances that led to the plea and to demonstrate that a miscarriage of justice has occurred”.
43The evidence consists of an affidavit sworn by the appellant on February 7, 2024, which explains his state of mind at the time he entered his guilty pleas, and includes institutional documents substantiating his claims. The affidavit discloses that the appellant suffers from a mental health condition that requires medication, and that he had not been taking his medication before entering the pleas. He had been in segregation for most of the 35 months leading up to his pleas, with very little meaningful human contact. The appellant explained further that he was induced to plead guilty by correctional officers who had implied that he would be better off if he could get a transfer to a federal institution and who provided advice on how to do so.
44While this information was available and could have been tendered when the appellant entered his guilty pleas, I would still admit it. The due diligence requirement is not as stringently applied in criminal cases as in civil cases, and should not in these circumstances bar admission. The proposed evidence is credible in that it is reasonably capable of belief – the Crown did not present evidence to contradict it nor did it seek to cross-examine the appellant. And there is no question that 1) if this evidence had been before the trial judge, he would have engaged in a more comprehensive plea inquiry, and 2) if accepted, the evidence would have called into question the validity of the appellant’s pleas. This evidence bears upon both questions before us: 1) whether the appellant’s guilty pleas are valid, and 2) even if they are, would allowing them to stand give rise to a miscarriage of justice.
45The appellant’s affidavit is uncontested evidence that he was influenced by people in authority to plead guilty, and that at the time he entered his pleas he was not being treated for his mental health condition.
46While the appellant did not bring these matters to the trial judge’s attention when he could have, this decision appears to have been motivated by the desire to be transferred out of a provincial institution at the earliest opportunity and influenced by the advice of those in authority on how best to achieve that.
47I am of the view that the fresh evidence calls into question the validity of the appellant’s guilty pleas, and that to maintain them risks a miscarriage of justice.
The ancillary orders made on February 14, 2023
48When the appellant was sentenced, the Crown did not ask for, and the trial judge did not make, any ancillary orders. There is no indication in the record that the trial judge had intended to make these orders but simply forgot to do so.
49Duty counsel argues that when the parties reconvened some two-and-a-half months later, the trial judge was functus officio and therefore did not have the authority to make the orders he did.
50Duty counsel relies on this court’s decision in R. v. Thompson, 2010 ONCA 463, 256 C.C.C. (3d) 51, at para. 20, which followed its earlier decision in R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 211 C.C.C. (3d) 449 (Ont. C.A.):
In [Malicia], this court affirmed that “[i]n judge alone cases, the point of no return is after the trial judge endorses the indictment”. Once the indictment is endorsed, the trial judge is functus officio, and normally may not alter his or her order. Malicia allows only that in limited circumstances a judge can correct errors made in recording his or her manifest intent, or otherwise confirm or clarify the substance of the decision made, so long as it does not involve a reconsideration of the decision.
51Duty counsel stresses that the purpose of the February court appearance was not so the trial judge could correct or clarify orders he had made when sentence was imposed; the purpose was for the Crown to ask the trial judge, for the first time, to make three orders (DNA, non-communication, and s. 109).
52With respect to the intimidation count under s. 423.1, I find that the trial judge had jurisdiction to make a s. 109 prohibition order when the parties reconvened in February. The basic rule is that courts retain limited jurisdiction to revisit a final order if authorized to do so by statute, to correct an accidental slip or omission or an error in expressing their manifest intention, or if the matter has not been heard on its merits: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, at para. 33; Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860.
53For the s. 423.1 offence, the weapons prohibition order was mandatory under s. 109(1)(a) because intimidating a justice system participant is an indictable offence which carries a maximum penalty of more than 10 years’ imprisonment, and because it involved a threat of violence. As there was no option but to make the prohibition order, not doing so at the time of sentencing is necessarily an oversight.
54This, however, is not the end of the matter. While the Crown sought a lifetime prohibition on the intimidation count, the only count to which s. 109 would have applied, the trial judge endorsed it as being made in relation to the threatening count, which carries a maximum sentence of only five years, and not “ten years or more” as required by s. 109(1)(a). On the face of it, even though the trial judge was not functus officio on the intimidation count, the order he made was unlawful.
55While the trial judge could have imposed a discretionary weapons prohibition order under s. 110(1)(a) for the threatening count, the Crown did not ask for that order and no such order was made.
56With respect to the DNA order, I start by noting that intimidation of a justice system participant is a primary designated offence under s. 487.051(1) and that an order “shall” be made when a person is convicted of an offence so designated. Furthermore, under s. 487.053(2) if a judge does not make the DNA order at the time of sentencing, (a) a hearing date shall be set within 90 days of sentencing, and (b) the judge retains jurisdiction to make the order. As only 78 days had passed from November 28, 2022 until February 14, 2023, the trial judge retained jurisdiction to make the order.4
57With respect to the non-communication order made pursuant to s. 743.21, which was discretionary, the fact that this was not sought on the date sentence was imposed is fatal. The circumstances here are completely different from those present in R. v. D.A., 2019 ONCA 310, where this court upheld a non-communication order imposed about a month after sentence was imposed. Unlike here, in D.A. the issue had been argued when sentencing submissions were made and it was clear that the sentencing judge’s failure to address it was an oversight. The finding that the sentencing judge in D.A. was not functus is entirely consistent with the principles set out in Thompson and Malicia.
CONCLUSION
58In light of the fresh evidence, and given the cumulative effect of all the above noted deficiencies and procedural irregularities, the appellant’s guilty pleas must be struck.
59For these reasons, I would allow the appeal, set aside the convictions, and order a new trial.
Released: March 3, 2025 “K.M.v.R.”
“J. George J.A.”
“I agree. K. van Rensburg J.A.”
“I agree. S. Gomery J.A.”
Footnotes
- Relying on the appellant’s history of threatening and intimidating justice system participants, the Crown brought a motion for an order omitting the name of Crown counsel from these reasons. Duty counsel, on behalf of the appellant, took no position. This panel found that there is a real risk of harm to counsel if their name was disclosed to the appellant, and on that basis granted the motion pursuant to s. 486.5(2) of the Criminal Code.
- The appellant did not say anything about the threatening to damage property count, but that count is related to, and arises from the same set of facts that informed, the mischief count.
- Section 423.1 (intimidation of a justice system participant) is an indictable offence which, upon conviction, carries a maximum penalty of 14 years jail. Section 264.1(1)(a) (uttering a threat to cause death or bodily harm) is a hybrid offence which, when prosecuted by indictment, carries a maximum penalty of 5 years jail.
- While the February 14, 2023 transcript reveals that the trial judge agreed to make the order, there is no signed DNA order in the appeal book or elsewhere in the materials filed on this appeal, and the order was not endorsed on the Information.