Sam Yonga v. State of Maryland, No. 30, Sept. Term, 2015 Opinion by Battaglia, J.

CRIMINAL PROCEDURE – NEWLY DISCOVERED EVIDENCE – WRIT OF
ACTUAL INNOCENCE – MD. CODE ANN., CRIM. PROC. § 8-301 (2008
Repl.Vol., 2013 Supp.) – Court of Appeals held that the Petition for a Writ of Actual
Innocence, under Section 8-301 of the Criminal Procedure Article, was not available to
an individual who earlier pled guilty to the same crime.
Circuit Court for Baltimore County,
Maryland
Case No. 03-K-07-0324
Argued: November 10, 2015

                                      IN THE COURT OF APPEALS
                                            OF MARYLAND

                                               No. 30
                                         September Term, 2015


                                             SAM YONGA

                                                    v.

                                        STATE OF MARYLAND


                                              Barbera, C.J.
                                              Battaglia
                                              Greene
                                              Adkins
                                              McDonald
                                              Harrell, Jr., Glenn T.
                                              (Retired, Specially
                                              Assigned)
                                              McAuliffe, John F.
                                              (Retired, Specially
                                              Assigned),

                                                     JJ.


                                         Opinion by Battaglia, J.


                                          Filed: January 27, 2016
         According to the statement of facts presented by the State during the guilty plea

proceeding involving Petitioner, Sam Yonga, it was late in 2006 when Yonga, then a 25

year-old immigrant from Sierra Leone, traveled from Prince George’s County to an

apartment in Baltimore County to meet with T.R.,1 a 13 year old girl who lived there with

her mother. He had become acquainted with T.R. over a phone chat line some weeks

earlier, during which conversation Yonga told T.R. that his name was Mohammad.

         Yonga and T.R. decided to meet on a day that T.R. would pretend to be ill, in

order to stay home from school. After they met at the apartment, the two began kissing,

and Yonga, at times, touched T.R.’s breasts. Eventually, the pair moved to T.R.’s

mother’s bedroom; T.R. removed her clothing while Yonga took off his pants and

underwear. After Yonga and T.R. moved to the bed, they began to have sexual

intercourse when they were interrupted by the unexpected return of T.R.’s mother.

         Yonga quickly left the apartment, and dropped his cell phone, which was retrieved

by T.R.’s mother, who called police and reported the incident, after having learned

Yonga’s name and address from his mother whose phone number was in the cell phone.

T.R.’s mother then took her daughter to a local clinic for an examination and for a shot of

Depo-Provera, a birth control implant.2


1
    We shall refer to the victim, a minor at the time of the incident, by her initials.
2
    The complete statement of facts presented by the State at the plea proceeding included:
         [The State]: Your Honor, on November 3rd of 2006 [T.R.] was 13 years
         old. She lived in an apartment with her mother and younger chil – uh,
         siblings at 2532 Yorkway, Apartment A. On this particular day, uh, sir, it
         was Friday, uh [T.R.] was home from school. Uh, she had indicated that she
         was sick.
                                                                                 (continued . . .)
(. . . continued)

       Prior to this date of the third of November, [T.R.] had gone on a phone chat
       line. It’s a chat line where you dial in the number and you’re connected
       with different people. In those connections she connected with the
       Defendant. He advised her that his name was Mohammad. Um, in the
       course of those discussions, um, it was decided that they would meet.
       [T.R.] would advise that the plan to meet was on this day when she feigned
       illness so she could stay home from school, um, and, in fact, the Defendant
       came to the home.

       [T.R.] would advise when he came into the home they spoke briefly and
       there were times when they, uh, kissed. There were also times when he
       touched her breasts. Um, the Defendant, I would note for the record, is 25 –
       or was 25 years old at the time of this offense.

       Ultimately [T.R.] would advise that they went into her mother’s bedroom,
       they got on to the bed, uh, she had removed all of the clothes and the
       Defendant had removed his pants and underpants. Um, she would advise
       that the Defendant, uh, with his hand touched her in the vaginal area, um,
       also would advise that there was an attempt for penile penetration, it was
       very slight, and it was at this time that her mother came home
       unexpectedly.

       Um, [T.R.] heard her mother coming in the house. Both of the individuals
       jumped up out of the bed, uh, [E.R.] went into the bedroom, observed the
       two to jump out of bed. She observed her daughter to grab clothing and sort
       of hide behind a dresser. She observed the Defendant to grab his pair of
       pants.

       [E.R.] would advise that at this point she began screaming and said she was
       going to get a knife and cut off the Defendant’s penis. Uh, the Defendant
       grabbed his pants and ran from the apartment without putting on his pants.
       In that fleeing of the apartment the Defendant had a cell phone in his pants
       pocket and the cell phone dropped.

       Um, after the Defendant fled from the apartment [E.R.], uh, took the cell
       phone and scrolled through it, found what was listed as the Defendant’s
       mother’s phone number on the cell phone. Uh, [E.R.] dialed that number,
       told the Defendant’s mother what had taken place. At that time, uh, the
       woman who identified herself as the Defendant’s mother on the phone
                                                                       (continued . . .)

                                            2
(. . . continued)
         provided [E.R.] with the Defendant’s name, a phone number, as well as an
         address.

      [E.R.] then took [T.R.] to a local clinic advising what had happened, asking
      for, um, an examination and determination with regard to, um, STDs as
      well as at that point she had a Depo-Provera shot which would be a, uh,
      birth control implant.

      Um, after that took place the police were called. Uh, I would also advise
      that [E.R.] after the phone call with the Defendant’s mother she then
      destroyed that cell phone. She smashed it. However, she provided to the
      officer who responded all of that information. The case was then turned
      over to, um, the Sex Offense Unit for investigation. That phone number,
      um, was given to Detective Hummel.

      She made contact again with the woman who purported to be the
      Defendant’s mother. She advised what she was investigating and that she
      needed to speak with the Defendant. Uh, she then advised the woman that,
      um, she would give the Defendant 48 hours to make contact so they could
      discuss this offense.

      Uh, one call was received by Detective Hummel which was a hang-up call.
      A second call was made, still within the 48-hour period, where the
      Defendant identified himself by name. He stated that he had no idea why
      the detective was calling and that he had never been to Baltimore County.
      When the detective, um, further made inquiry about discussions – the
      particulars, the Defendant hung up.

      Uh, based upon all of this information and conduct an arrest warrant was
      obtained. The Defendant’s address was in, um, P.G. County. A request was
      made of Career Criminal to assist in the arrest. They got information
      regarding the Defendant’s vehicle. They went to the initial address and,
      Your Honor, they noted, um, it was a new community and the address was
      wrong so they could not make entry based upon their arrest warrant because
      they had the wrong house number.

      Um, they knocked on the door, got no response, asked Detective Hummel,
      who was still in Baltimore County, to make phone contact. Someone
      answered in the house and advised that yes, this was the house where the
      Defendant lived, but indicated he was not home.
                                                                      (continued . . .)

                                           3
         Yonga initially denied knowing T.R. and denied having initiated sexual

intercourse, but admitted to “kissing and touching” her on a porch outside the apartment.

         Yonga was arrested and charged with second degree rape3 and a third degree
                    4
sexual offense.         He pled guilty to the third degree sexual offense during a colloquy


(. . . continued)

         The Career Criminal Squad would advise that they could see pretty clearly
         from the windows that, in fact, the Defendant was inside. This was on
         December 6 of 2006. Um, ultimately, uh, a number of people arrived. They
         wouldn’t let people in. There was an attempt to get a search warrant now
         based upon the belief that the Defendant was inside. Before the search
         warrant was actually signed the Defendant, after three hours, came outside
         and submitted to being arrested. He was then transported to Baltimore
         County. He met with Detective Hummel in the Lansdowne, uh, precinct.
         She advised him of his rights per the Miranda decision. He elected to waive
         those rights and make a statement.

         He, um, initially again denied ever being in Baltimore County, having any
         knowledge of this young girl. As the interview progressed he said that yes,
         he met a girl on a chat line. He advised that the young girl told him, uh, that
         she was 19 years of age. He went on to say that when he ultimately met her
         she appeared to be younger than what he claimed to be her stated age of 19
         years old.

         Uh, he said they initially met in the city, that they made a stop where he
         purchased her a, um, heart-shaped pillow, that they then went to her, um,
         home. He went on to say that they never went into the house, that, at most,
         they kissed and touched and that he was leaning between her legs out on the
         porch when a woman came out screaming and, uh, he ran fr- -- fled from
         the location.

         Your Honor, um, all events did occur in Baltimore County and that would
         be the statement to support the plea.
3
    Section 3-306 of the Criminal Law Article, which provides, in relevant part:
         (a) A person may not engage in a sexual act with another:
         (1) by force, or the threat of force, without the consent of the other;
                                                                                 (continued . . .)

                                                 4
conducted by Judge Dana Levitz, then an active judge of the Circuit Court for Baltimore

County. During the colloquy, Judge Levitz assured that Yonga’s plea was given freely,

voluntarily and knowingly and that Yonga understood that the plea had been negotiated

as one binding upon the Judge in terms of sentencing: 5

       THE COURT: Now, I’m going to ask you a series of questions. My
       purpose in asking you the questions is not to get you to do anything. I’m
       not trying to get you to enter a guilty plea or not, but the law says I can’t let

(. . . continued)
         (2) if the victim is a mentally defective individual, a mentally incapacitated
         individual, or a physically helpless individual, and the person performing
         the sexual act knows or reasonably should know that the victim is a
         mentally defective individual, a mentally incapacitated individual, or a
         physically helpless individual; or
         (3) if the victim is under the age of 14 years, and the person performing the
         sexual act is at least 4 years older than the victim.
Md. Code Ann., Crim. Law § 3-306 (1957, 2012 Repl. Vol.).
4
  Section 3-307 of the Criminal Law Article, governing third degree sexual offense,
provides, in relevant part:
       (a) A person may not:

                                       *      *       *

          (3) engage in sexual contact with another if the victim is under the age of
          14 years, and the person performing the sexual contact is at least 4 years
          older than the victim;

Md. Code Ann., Crim. Law § 3-307 (1957, 2012 Repl. Vol.).
5
 Rule 4-243 (“Plea Agreements”) permits a judge to approve a plea agreement reached
between the State and the defendant:
      Approval of Plea Agreement. If the plea agreement is approved, the judge
      shall embody in the judgment the agreed sentence, disposition, or other
      judicial action encompassed in the agreement or, with the consent of the
      parties, a disposition more favorable to the defendant than that provided for
      in the agreement.
Rule 4-243(c)(3).


                                              5
you enter a guilty plea unless you’re doing it freely, voluntarily, knowingly
and intelligently. I’m asking you the questions to satisfy myself that you are
entering it under these conditions, so if I ask anything you don’t
understand, stop me. Say, Judge, I don’t understand what you’re asking me,
and I’ll try to explain it to you.

YONGA: Yes, sir.

THE COURT: Now, the State’s Attorney and your lawyer have told me
that you’re entering a guilty plea in Case Number 07-K-324 to the third
count which – excuse me, the second count, which charges you with third-
degree sex offense which occurred on or about November the 3rd, 2006,
and the third-degree sex offense was upon [T.R.].

       In exchange for your plea to that charge the State will dismiss the
more serious second-degree sex offense. In addition, the State and the
Defense have agreed that the sentence that I will impose is 364 days. I’m
going to suspend all but six months of the sentence and that six months will
be served at the Baltimore County Detention Center. They’ve agreed that
the sentencing will happen on the June the 4th.

        That’s what I understand to be the total plea agreement in this case.
Is that your understanding of it?

YONGA: Yes, sir.

THE COURT: Has anyone made you any other promises, threats,
inducements to get you to enter this plea?

YONGA: No.

                               *      *      *

THE COURT: How far did you go in school?

YONGA: Um, college level, university level.

THE COURT: All right. Are you now under the influence of alcohol, drugs
or any other substance that’s affecting your thinking?

YONGA: No, sir.




                                      6
       THE COURT: Have you ever been treated for a mental disease or a mental
       disorder?

       YONGA: No, sir.

       THE COURT: Are you now on probation or parole?

       YONGA: No, sir.

       THE COURT: As I understand it, you are a, um, a citizen of – is it Sierra
       Leone?

       YONGA: Yes, sir.

Judge Levitz also advised Yonga of possible implications of the guilty plea on his

immigration status:6

       THE COURT: Okay, You understand that this guilty plea could have
       immigration consequences and if you are concerned about that then I urge
       you to talk to an immigration lawyer because I can’t advise you about that.
       I have nothing to do with that. Do you understand that?

       YONGA: Yes, sir.

Judge Levitz then explained to Yonga that, by pleading guilty, he was waiving various

rights to which he would have been entitled during a trial and his right to appeal:

       THE COURT: Okay. All right, so by proceeding in this way we don’t have
       a trial where witnesses are called. You’re giving up the right to have your
       lawyer cross examine the witnesses. You’re giving up the right to produce
       witnesses on your own behalf. You’re giving up the right to testify or
       remain silent.

              If this were a trial you could sit next to Mr. Fatemi and you wouldn’t
       have to say a word. You could just sit next to him. Nobody could make you
       get on the stand and admit you did anything.

6
  While the exact posture of Yonga’s immigration status was never made clear, the State
indicated during the plea proceeding that a document was obtained by the State “that
could be presented for immigration purposes.”


                                             7
             You’re giving up the right to appeal by proceeding in this way,
      you’re giving up the right to complain that anything the police may have
      done that you think violated your rights.

Judge Levitz then reinforced his commitment to be bound by the disposition agreed upon

by the State and Yonga’s counsel:

      THE COURT: The sentence that the law would allow for this crime is ten
      years in prison but I’ve already told you the sentence that I’m going to
      impose in this case, so while that’s what the law would allow I’ve already
      made you a promise that the sentence is going to be 364 days, suspend all
      but six months. Do you understand that?

      YONGA: Yes, sir.

      THE COURT: Do you understand everything that I’ve said so far?

      YONGA: Yes, sir. Yes, sir.

Judge Levitz also inquired whether Yonga had “any additions, corrections or

modifications to those facts?” to which Yonga’s counsel replied:

      MR. FATEMI: Uh, I think Madame State has, uh, properly went over, uh,
      what hap -- allegedly happened, just the fact that he never went in the house
      and in the statement he stated that he did not have sex.

Judge Levitz accepted Yonga’s guilty plea:

      THE COURT: Okay. All right. I’ve had occasion to speak with the
      Defendant and based on my opportunity I’m convinced that his plea is free,
      voluntary, knowing, informed and with factual basis, and accordingly I
      accept his guilty plea to third-degree sex offense.

      During the sentencing hearing approximately one month later, at which Yonga’s

family allocuted regarding Yonga’s mistake, Yonga expressed his remorse to the court:

      Yes, sir. I’m very sorry. Really, really, really sorry. I made a mistake and
      I’ve learned a lot from it. I’m really, really, really – I’m so, I’m so deeply,



                                             8
       really sorry. It bothers me every day but, um, it’s a mistake I made. I’m
       going through it, you know, I’m very, very, very sorry.

Pursuant to the plea agreement, Judge Levitz sentenced Yonga to 364 days in the

Baltimore County Detention Center, with all but six months suspended. Yonga also was

required to register as a sex offender.

       Six years later, in 2013, after allegedly reconnecting with T.R. through social

media, Yonga petitioned for a Writ of Actual Innocence, under Section 8-301 of the

Criminal Procedure Article of the Maryland Code,7 in which he alleged that T.R.


7
  Section 8-301 of the Criminal Procedure Article of the Maryland Code provided in
2013, and now, that:

       (a) A person charged by indictment or criminal information with a crime
       triable in circuit court and convicted of that crime may, at any time, file a
       petition for writ of actual innocence in the circuit court for the county in
       which the conviction was imposed if the person claims that there is newly
       discovered evidence that:
           (1) creates a substantial or significant possibility that the result may
           have been different, as that standard has been judicially determined;
           and
           (2) could not have been discovered in time to move for a new trial
           under Maryland Rule 4-331.

       (b) A petition filed under this section shall:
          (1) be in writing;
          (2) state in detail the grounds on which the petition is based;
          (3) describe the newly discovered evidence;
          (4) contain or be accompanied by a request for hearing if a hearing is
          sought; and
          (5) distinguish the newly discovered evidence claimed in the petition
          from any claims made in prior petitions.


       (c)(1) A petitioner shall notify the State in writing of the filing of a petition
       under this section.
                                                                               (continued . . .)

                                               9
“recanted” her original statements given to police. Judge Sherrie Bailey of the Circuit

Court for Baltimore County denied Yonga’s petition on the merits, after a hearing.

       Yonga appealed the denial, arguing that Judge Bailey, in finding Yonga did not

sufficiently establish newly discovered evidence as required under Section 8-301, erred.

The State countered that the Writ of Actual Innocence was not applicable to a person who




(. . . continued)
            (2) The State may file a response to the petition within 90 days after
            receipt of the notice required under this subsection or within the
            period of time that the court orders.

       (d)(1) Before a hearing is held on a petition filed under this section, the
       victim or victim's representative shall be notified of the hearing as provided
       under § 11-104 or § 11-503 of this article.
          (2) A victim or victim's representative has the right to attend a hearing
          on a petition filed under this section as provided under § 11-102 of
          this article.

       (e)(1) Except as provided in paragraph (2) of this subsection, the court shall
       hold a hearing on a petition filed under this section if the petition satisfies
       the requirements of subsection (b) of this section and a hearing was
       requested.
          (2) The court may dismiss a petition without a hearing if the court
          finds that the petition fails to assert grounds on which relief may be
          granted.

       (f)(1) In ruling on a petition filed under this section, the court may set aside
       the verdict, resentence, grant a new trial, or correct the sentence, as the
       court considers appropriate.
          (2) The court shall state the reasons for its ruling on the record.

       (g) A petitioner in a proceeding under this section has the burden of proof.
Md. Code Ann., Crim. Proc. § 8-301 (2001, 2008 Repl. Vol., 2013 Supp.). All references
to Section 8–301 of the Criminal Procedure Article throughout are to Maryland Code
(2001, 2008 Repl. Vol., 2013 Supp.).


                                             10
had pled guilty and, in the alternative, that the Circuit Court’s denial on the merits was

correct.

       Our intermediate appellate court affirmed in a reported opinion. Yonga v. State,

221 Md. App. 45, 108 A.3d 448 (2015). Judge Charles E. Moylan, writing for the Court

of Special Appeals, explained the history of Section 8-301 and its affinity to the motion

for a new trial under Rule 4-331, determining, primarily, that “a non-reversed guilty plea

is invulnerable to a Writ of Actual Innocence.” Id. at 77, 108 A.3d at 467. The Court of

Special Appeals also determined that Judge Bailey did not clearly err in her credibility

determinations, and, therefore, did not abuse her discretion in denying Yonga’s petition,

although it emphasized that, “First and foremost is our primary holding that the Writ of

Actual Innocence does not apply to a guilty plea.” Id. at 99, 108 A.3d at 480.

       We granted Yonga’s petition for a writ of certiorari, Yonga v. State, 442 Md. 515,

113 A.3d 624 (2015), which presented the following questions:

       I. DOES THE STATUTORY WRIT OF ACTUAL INNOCENCE UNDER
       § 8-301 OF THE [CRIMINAL PROCEDURE] ARTICLE OF THE
       ANNOTATED CODE OF MARYLAND APPLY TO GUILTY PLEA
       CASES? [8]

       II. IF SO, IS IT CLEAR ERROR AND/OR AN ABUSE OF DISCRETION
       FOR A TRIAL JUDGE TO DENY A REQUEST FOR A NEW TRIAL BY
       THE PETITIONING PARTY WHERE THE ALLEGED VICTIM AND
       THE ONLY WITNESS DESCRIBED IN THE STATEMENT OF FACTS
       BOTH TESTIFIED THAT THE ALLEGED EVENTS NEVER



8
  Yonga, in his Petition for a writ of certiorari, referenced Section 8-301 of the Courts and
Judicial Proceedings Article, although the Writ of Actual Innocence is actually found in
the Criminal Procedure Article.


                                             11
         HAPPENED WHEN THE TRIAL JUDGE HAD HEARD TESTIMONY
         AT A HEARING UNDER § 8-301? [9]

         In addressing the issue of whether an individual who pled guilty can later file a

Petition for a Writ of Actual Innocence under Section 8-301 of the Criminal Procedure

Article, we initially acknowledge that the statute is silent on the issue. The history of the

legislation, our implementation through our Rules as well as our understanding of what

“actual innocence” means, juxtaposed against what a guilty plea involves, however,

inform our conclusion that a person who has pled guilty may not later avail himself or

herself of the relief afforded by the Petition for a Writ of Actual Innocence.

         Section 8-301(a) of the Criminal Procedure Article provides that “newly

discovered” evidence is the foundation for a Writ of Actual Innocence, such evidence that

would have created a “substantial or significant possibility” of a different result and

which could not have been discovered within the time period required for a motion for a

new trial:

         (a) A person charged by indictment or criminal information with a crime
         triable in circuit court and convicted of that crime may, at any time, file a
         petition for writ of actual innocence in the circuit court for the county in
         which the conviction was imposed if the person claims that there is newly
         discovered evidence that:
             (1) creates a substantial or significant possibility that the result may
             have been different, as that standard has been judicially determined;
             and
             (2) could not have been discovered in time to move for a new trial under
             Maryland Rule 4-331.




9
    Because of our determination of the first issue, we shall not address the second.


                                               12
Md. Code Ann., Crim. Proc. § 8-301 (emphasis added). Section 8-301 was enacted in

2009 by the Maryland General Assembly through the enactments of Senate Bill 486

(“S.B. 486”) and House Bill 366 (“H.B. 366”) and reconciliation in conference.10 2009

Maryland Laws, Chapter 744. Section 8-301 provides:

       Claims of newly discovered evidence
       (a) A person charged by indictment or criminal information with a crime
       triable in circuit court and convicted of that crime may, at any time, file a
       petition for writ of actual innocence in the circuit court for the county in
       which the conviction was imposed if the person claims that there is newly
       discovered evidence that:
           (1) creates a substantial or significant possibility that the result may
           have been different, as that standard has been judicially determined;
           and
           (2) could not have been discovered in time to move for a new trial
           under Maryland Rule 4-331.

       Petition requirements
       (b) A petition filed under this section shall:
          (1) be in writing;
          (2) state in detail the grounds on which the petition is based;
          (3) describe the newly discovered evidence;
          (4) contain or be accompanied by a request for hearing if a hearing is
          sought; and
          (5) distinguish the newly discovered evidence claimed in the petition
          from any claims made in prior petitions.

       Notice of filing petition
       (c)(1) A petitioner shall notify the State in writing of the filing of a petition
       under this section.


10
   Amendments to Section 8-301 were made the following year, in 2010, through an
emergency bill, Senate Bill 135 (S.B. 135) and its accompanying House Bill (H.B. 128).
2010 Md. Laws, Chap. 233, 234. These amendments to Section 8-301 require the
petitioner to notify the State in writing of the filing of the petition, provide the State with
the right to file a response within ninety days or a period set by the court, requires
notification to the victim or victim’s family of the hearing and provide the victim or
victim’s family the right to attend the hearing.


                                              13
         (2) The State may file a response to the petition within 90 days after
         receipt of the notice required under this subsection or within the
         period of time that the court orders.

       Notice to victim or victim’s representative
       (d)(1) Before a hearing is held on a petition filed under this section, the
       victim or victim's representative shall be notified of the hearing as provided
       under § 11-104 or § 11-503 of this article.
          (2) A victim or victim's representative has the right to attend a hearing
          on a petition filed under this section as provided under § 11-102 of
          this article.

       Hearing
       (e)(1) Except as provided in paragraph (2) of this subsection, the court shall
       hold a hearing on a petition filed under this section if the petition satisfies
       the requirements of subsection (b) of this section and a hearing was
       requested.
          (2) The court may dismiss a petition without a hearing if the court
          finds that the petition fails to assert grounds on which relief may be
          granted.

       Power of court to set aside verdict, resentence, grant a new trial, or
       correct sentence
       (f)(1) In ruling on a petition filed under this section, the court may set aside
       the verdict, resentence, grant a new trial, or correct the sentence, as the
       court considers appropriate.
          (2) The court shall state the reasons for its ruling on the record.

       Burden of proof
       (g) A petitioner in a proceeding under this section has the burden of proof.


The history of the legislation reflects that Section 8-301 was intended to expand the

breadth of a motion for a new trial under Rule 4-331(c)(1). 11



11
  Maryland Rule 4-331(c)(1) provides for the filing of a motion for a new trial based on
newly discovered evidence:
       (c) Newly Discovered Evidence. The court may grant a new trial or other
      appropriate relief on the ground of newly discovered evidence which could
                                                                         (continued . . .)

                                             14
       In testimony submitted by Senator Delores Kelley, one of the sponsors of the bill,

to the Senate Committee on Judicial Proceedings, she expressed the need for a vehicle for

one who was “wrongfully convicted” to seek judicial review when “new evidence” came

to the fore, when DNA was not an issue,12 when a new trial motion was barred and “no

claim of a constitutional defect involved in the case management and/or in the trial” was

alleged:

       The fact is that in Maryland today, there is no recourse for a wrongfully
       convicted defendant in certain cases where none of the following applies:

           1. where DNA evidence is not a factor under consideration;

           2. where the 10-day post-conviction statute of limitations has expired for
           filing a motion for a new trial “in the interest of justice;” or

           3. where there is no claim of a constitutional defect involved in the case
           management and/or in the trial.

       Since the development of new evidence sometimes takes more than a
       decade to materialize, when such evidence does become available in a case
       of a wrongfully convicted defendant, there should be an available

(. . . continued)
         not have been discovered by due diligence in time to move for a new trial
         pursuant to section (a) of this Rule:
            (1) on motion filed within one year after the later of (A) the date the
            court imposed sentence or (B) the date the court received a mandate
            issued by the final appellate court to consider a direct appeal from the
            judgment or a belated appeal permitted as post conviction relief[.]
12
   Section 8-201 of the Criminal Procedure Article governing the procedures for
challenging convictions based upon DNA testing had been enacted in 2001 following a
national movement in the early ‘90s for post-conviction relief based upon scientific
advances around DNA testing. See Blake v. State, 395 Md. 213, 218-19, 909 A.2d 1020,
1023 (2006) (“Section 8–201 was enacted in Maryland in 2001, in line with a nationwide
trend to adopt post-conviction DNA testing statutes designed to provide an avenue for the
exoneration of the actually innocent.”).


                                             15
       mechanism for seeking judicial review, with the defense bearing the burden
       of proof.


       The standard adopted by Section 8-301(a)(1) that newly discovered evidence

would have to create “a substantial or significant possibility that the result may have been

different,” in the earlier trial, as with Rule 4-331(c)(1), was discussed in a letter contained

in the bill file, authored by Suzanne Drouet, an attorney with the State Office of the

Public Defender.13 Ms. Drouet relied on a number of our opinions as well as others from

our intermediate appellate court interpreting Rule 4-331(c)(1), as well as those involving

ineffective assistance of counsel claims and Brady violations,      14
                                                                         alleged by individuals

convicted after a trial. In each of the cases cited we, as well as the Court of Special

Appeals, emphasized the importance of having the judge who considered the newly

discovered evidence evaluate its significance against that which had been developed at

trial: “[t]he trial judge in the present matter weighed the newly discovered evidence and

considered its significance in relation to the evidence already presented at trial.”

Campbell v. State, 373 Md. 637, 670, 821 A.2d 1, 20 (2003) emphasis added). See also

State v. Williams, 392 Md. 194, 234, 896 A.2d 973, 996 (2006). Ms. Drouet also cited the


13
   “This language tracks the standard adopted by the Maryland Court of Appeals in a
variety of situations involving the discovery of new evidence, including a motion for a
new trial pursuant to Rule 4-331(c), ineffective assistance of counsel claims, and Brady
violations[,]” according to the letter.
14
   A Brady violation involves “the suppression by the prosecution of evidence favorable
to an accused upon request [and] violates due process where the evidence is material
either to guilt or punishment, irrespective of good faith or bad faith of the prosecution.”
Wilson v. State, 363 Md. 333, 345, 768 A.2d 675, 681 (2001) (quoting Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 215 (1963)).


                                              16
following cases: Wilson v. State, 363 Md. 333, 352, 768 A.2d 675, 685 (2001)

(concluding that the newly discovered evidence was material, because “had the evidence

been disclosed, there is a substantial possibility that the verdict in the Petitioner’s case

would have been different”); Bowers v. State, 320 Md. 416, 430-31, 578 A.2d 734, 741

(1990) (the relevant inquiry is whether “a probability sufficient to undermine confidence

in the outcome”, had evidence been admitted, exists such that “the outcome might well

have been different.”); Yorke v. State, 315 Md. 578, 590, 556 A.2d 230, 235

(1989)(“[T]he judge found that the newly discovered evidence, weighed with the

evidence before the jury at the trial on the merits, did not affect the verdict to the extent

that the outcome of the trial would be different.”); Jackson v. State, 164 Md. App. 679,

713, 884 A.2d 694, 714 (2005) (a trial judge’s discretion requires his assessing the weight

and credibility of the new evidence, as he is “the only judicial figure who had his thumb

on the pulse of the trial,” and, therefore, “[his] exercise of discretion in evaluating

credibility is indispensable.”); Love v. State, 95 Md. App. 420, 433, 621 A.2d 910, 917

(1993) (identifying the applicable standard as whether the new evidence created a

“substantial or significant possibility that the verdict of the trier of fact would have been

affected” by its absence). The remaining documents contained in the bill file for S.B. 486,

including its Floor Report, also echo the relationship between the “substantial

probability” standards under Section 8-301 and Rule 4-331(c).15


15
  In Douglas v. State, 423 Md. 156, 176, 31 A.3d 250, 262 (2011), we recognized that
Section 8-301 operated in much the same way as a motion for a new trial under Rule 4-
331(c):
                                                                      (continued . . .)

                                             17
       With respect to this legislative history, Yonga argues had the Legislature intended

Section 8-301 to apply only to persons who had been convicted after trial that it would

have placed such language directly in the statute. He refers to Virginia’s Writ of Actual

Innocence Statute, which expressly limits the availability of the writ to “a person who

was convicted of a felony upon a plea of not guilty”, in support of his position.16


(. . . continued)
         Furthermore, the legislative history of C.P. § 8–301 reflects a legislative
         purpose that the statute extend the right to seek a new trial on the basis of
         newly discovered evidence beyond that afforded a convicted defendant
         under Maryland Rule 4–331(c). The Fiscal and Policy Note that
         accompanied Senate Bill 486, which became C.P. § 8–301 in 2009,
         included the statement that the then-current law afforded a defendant relief
         under “Rule 4–331 . . . if newly discovered evidence exist[ed] that could
         not have been discovered by due diligence in time to move for a new trial
         within 10 days after the verdict.” The Note also stated that defendants had
         one year within which to file Rule 4–331 motions based on newly
         discovered evidence. The Note mentioned, too, that Virginia law provided
         defendants the opportunity to present newly discovered evidence within 21
         days after sentencing, which right the Virginia legislature “expanded . . . in
         2004 to allow felons to submit new evidence other than DNA tests.”

                                       *      *      *

       We are persuaded that the remedy afforded under C.P. § 8–301, like the
       similar (albeit more restricted) remedy provided by a motion for new trial is
       necessarily part of “the usual procedures of trial and review” available to a
       criminal defendant that were not intended to fall within the scope of
       postconviction relief…

Id. at 176-77, 31 A.3d at 262-63 (internal citations omitted).
16
   Virginia’s Writ of Actual Innocence Statute provides:
        Notwithstanding any other provision of law or rule of court, upon a petition
        of a person who was convicted of a felony upon a plea of not guilty, or the
        petition of a person who was adjudicated delinquent, upon a plea of not
        guilty, by a circuit court of an offense that would be a felony if committed
        by an adult, the Court of Appeals shall have the authority to issue writs of
                                                                             (continued . . .)

                                             18
      Yonga also points us to House Bill 919 (H.B. 919), introduced by Delegates Curt

Anderson and Kathleen Dumais in 2010, the year following the enactment of Section 8-

301, which proposed numerous changes to the Petition for Writ of Actual Innocence. One

of its many provisions, like the Virginia statute, would have explicitly limited the

application of the writ only to a person who had entered a plea of not guilty to the crime

charged.17


(. . . continued)
         actual innocence under this chapter. Only one such writ based upon such
         conviction or adjudication of delinquency may be filed by a petitioner. The
         writ shall lie to the circuit court that entered the conviction or the
         adjudication of delinquency and that court shall have the authority to
         conduct hearings, as provided for in this chapter, on such a petition as
         directed by order from the Court of Appeals.
Va. Code Ann. § 19.2-327.10 (emphasis added).
17
   Proposed H.B. 919; capital letters indicate language to be added to the existing law and
brackets indicate proposed language to be deleted from the existing law, provided:
         8–301.

      (a) [A convicted] IF A person IS CONVICTED OF A FELONY, AN
      ATTEMPT TO COMMIT A FELONY, OR A SOLICITATION TO
      COMMIT A FELONY AND THE PERSON ENTERED A PLEA OF NOT
      GUILTY TO THE CHARGES, THE PERSON MAY, at any time, [may]
      file a petition for writ of actual innocence in the circuit court for the county
      in which the conviction was imposed if the person claims that there is
      newly discovered evidence that:

         (1) creates a substantial [or significant] possibility that the result
         [may] WOULD have been different[, as that standard has been
         judicially determined]; and

         (2) could not have been discovered in time to move for a new trial
         under Maryland Rule 4–331.

      (b) A petition filed under this section shall:

                                                                             (continued . . .)

                                             19
(. . . continued)
            (1) be in writing;
            (2) state in detail the grounds on which the petition is based;
            (3) describe the newly discovered evidence;
            (4) contain or be accompanied by a request for hearing if a hearing is
            sought; and
            (5) distinguish the newly discovered evidence claimed in the petition
            from any claims made in prior petitions.

       (c) THE COURT SHALL ALLOW THE STATE TO FILE A RESPONSE
       TO THE PETITION WITHIN 60 DAYS.

       (D) (1) Except as provided in paragraph (2) of this subsection, the court
       shall hold a hearing on a petition filed under this section if the petition
       satisfies the requirements of subsection (b) of this section and a hearing was
       requested.

         (2) The court may dismiss a petition without a hearing if the court
         finds that the petition fails to state a claim or assert grounds on which
         relief may be granted.

       [(d)] (E) (1) In ruling on a petition filed under this section, the court may
       [set aside the verdict, resentence,] grant a new trial[, or correct the sentence,
       as the court considers appropriate].

         (2) The court shall state the reasons for its ruling on the record.

       [(e)] (F) A petitioner in a proceeding under this [section] SUBTITLE has
       the burden of [proof] PROVING THE GROUNDS ON WHICH RELIEF
       MAY BE GRANTED BY A STANDARD OF CLEAR AND
       CONVINCING EVIDENCE.

       8–302.

       (A) FOR EACH TRIAL OR SENTENCE IMPOSED, A PERSON MAY
       FILE ONLY ONE PETITION FOR RELIEF UNDER THIS SUBTITLE.

       (B) A PETITION FOR RELIEF UNDER THIS SUBTITLE MAY BE
       FILED ONLY WITHIN 1 YEAR FROM THE DATE OF THE
       PETITIONER’S DISCOVERY OF THE NEWLY DISCOVERED
       EVIDENCE ALLEGED IN THE PETITION.
                                                      (continued . . .)

                                              20
(. . . continued)

       8–303.

       (A) WITHIN 30 DAYS AFTER THE COURT PASSES AN ORDER IN
       ACCORDANCE WITH THIS SUBTITLE, A PERSON AGGRIEVED BY
       THE ORDER, INCLUDING THE ATTORNEY GENERAL AND A
       STATE’S ATTORNEY, MAY APPEAL TO THE COURT OF SPECIAL
       APPEALS.

       (B) (1) THE APPEAL SHALL FOLLOW THE FORM AND
       PROCEDURE SET BY THE MARYLAND RULES.

          (2) IF THE ATTORNEY GENERAL OR A STATE’S ATTORNEY
          FILES AN APPEAL UNDER THIS SECTION, THE COURT MAY:

             (I) STAY THE ORDER; AND

             (II) SET BAIL FOR THE PETITIONER.

          (3) AFTER HEARING AN APPEAL UNDER THIS SECTION, THE
          COURT OF SPECIAL APPEALS MAY:

             (I) AFFIRM, MODIFY, OR REVERSE THE ORDER
             APPEALED FROM; OR

             (II) REMAND THE CASE FOR FURTHER PROCEEDINGS.

       (C) THE COURT OF SPECIAL APPEALS SHALL DIRECT THE
       POLITICAL SUBDIVISION IN WHICH AN ORDER IS PASSED TO
       PAY THE NECESSARY COSTS AND EXPENSES ASSOCIATED
       WITH ANY REVIEW UNDER THIS SECTION, INCLUDING ALL
       COURT COSTS, STENOGRAPHIC SERVICES, AND PRINTING, IF:

          (1) A PERSON SEEKS REVIEW UNDER THIS SECTION WITHIN
          30 DAYS AFTER JUDGMENT;

          (2) THE COURT OF SPECIAL APPEALS HEARS THE APPEAL
          UNDER THIS SECTION; AND

                                                         (continued . . .)

                                       21
       H.B. 919 proposed changes to the wording of Section 8-301(a)(1), modifying the

standard to be applied when evaluating newly discovered evidence.18 Passage of the

proposed bill would have also created a new section, 8-302, further limiting the petition

to one motion per trial or sentence imposed and requiring that each motion be made

within one year after discovery of the new evidence.19 Other alterations to Section 8-301

would have required the court to allow the State to file a response to the petition within

60 days, modified the petitioner’s burden of proof to that of clear and convincing

evidence, added a new section 8-303 providing for appeals from orders issued pursuant to

Section 8-301 and limited the court’s relief to the grant of a new trial. The proposal also

included the language upon which Yonga relies, that “If a person is convicted of a felony,

an attempt to commit a felony, or a solicitation to commit a felony and the person entered

a plea of not guilty to the charges[.]”

(. . . continued)
         (3) THE COURT OF SPECIAL APPEALS FINDS THAT THE PERSON
         IS UNABLE TO PAY THE COSTS OF THE REVIEW.
18
    Specifically, H.B. 919 proposed the removal of the word “significant” from the
standard for newly discovered evidence and a narrowing of the evaluation of the evidence
such that there was a substantial possibility that the result would, rather than may, have
been different:
         (1) creates a substantial [or significant] possibility that the result [may]
         WOULD have been different[, as that standard has been judicially
         determined];
19
   Proposed Section 8-302 would provide:
         8–302.
         (A) FOR EACH TRIAL OR SENTENCE IMPOSED, A PERSON MAY
         FILE ONLY ONE PETITION FOR RELIEF UNDER THIS SUBTITLE.
         (B) A PETITION FOR RELIEF UNDER THIS SUBTITLE MAY BE
         FILED ONLY WITHIN 1 YEAR FROM THE DATE OF THE
         PETITIONER’S DISCOVERY OF THE NEWLY DISCOVERED
         EVIDENCE ALLEGED IN THE PETITION.


                                            22
      Our jurisprudence regarding rejected legislation reveals that while intent may be

discerned from legislative inaction, it is considered most appropriate generally only when

a specific bill has been repeatedly brought to the General Assembly and rejected:

      Although the failure of a single bill in the General Assembly may be due to
      many reasons, and thus is not always a good indication of the Legislature's
      intent, under some circumstances the failure to enact legislation is
      persuasive evidence of legislative intent. See, e.g., Lee v. Cline, 384 Md.
      245, 255–256, 863 A.2d 297, 303–304 (2004); Arundel Corp. v. Marie, 383
      Md. 489, 504, 860 A.2d 886, 895 (2004) (“The Legislature [has] declined
      invitations to modify the rule as [appellant] wishes”); Stearman v. State
      Farm, 381 Md. 436, 455, 849 A.2d 539, 550–551 (2004) (“The refusal of
      the Legislature to act to change a [statute] . . . provides . . . support for the
      Court to exercise restraint and refuse to step in and make the change”); In
      re Anthony R., supra, 362 Md. at 65–67, 763 A.2d at 144–145 (2000); State
      v. Sowell, 353 Md. 713, 723–724, 728 A.2d 712, 717–718 (1999) (“We
      have recognized that the General Assembly's failure to amend . . .
      sometimes reflects its desired public policy”); State v. Bell, 351 Md. 709,
      723, 720 A.2d 311, 318 (1998) (“Therefore, by declining to adopt the
      proposed language of the amending bill, the Legislature clearly did not
      intend” to adopt the result being urged); State v. Frazier, 298 Md. 422, 459,
      470 A.2d 1269, 1288 (1984) ( “All of these proposals [supporting different
      views of a statute advocated by the parties] were rejected by the General
      Assembly”).

      Legislative inaction is very significant where bills have repeatedly been
      introduced in the General Assembly to accomplish a particular result, and
      where the General Assembly has persistently refused to enact such bills.
      See, e.g., Arundel Corp. v. Marie, supra, 383 Md. at 502–504, 860 A.2d at
      894–896; Stearman v. State Farm, supra, 381 Md. at 455, 849 A.2d at 551
      (“Every year since 2000, legislators have introduced bills in the General
      Assembly that would” accomplish what the appellant urges, but “[n]one of
      these bills were enacted”); Bozman v. Bozman, 376 Md. 461, 492, 830 A.2d
      450, 469 (2003), quoting Boblitz v. Boblitz, 296 Md. 242, 274, 462 A.2d
      506, 521 (1983) (The Court will decline to adopt a particular position
      “‘where the Legislature repeatedly had rejected efforts to achieve
      legislatively that which we were asked to grant judicially’”); Halliday v.
      Sturm, 368 Md. 186, 209, 792 A.2d 1145, 1159 (2002) (The Court refused
      to adopt positions “that have been presented on several occasions to the
      General Assembly” and “[s]o far, the Legislature has chosen not” to adopt
      them); Harrison v. Mont. Bd. of Educ., 295 Md. 442, 462, 456 A.2d 894,


                                             23
       904 (1983) (“It is thus important in the present case to note that in the
       period from 1966 through 1982, the General Assembly considered a total of
       twenty-one bills seeking [to adopt the appellant's position] . . . . None of
       these bills was enacted. Although not conclusive, the legislature's action in
       rejecting the proposed change is indicative of [its] intention”); Kline v.
       Ansell, 287 Md. 585, 590, 414 A.2d 929, 932 (1980); Demory Brothers v.
       Bd. of Public Works, 273 Md. 320, 326, 329 A.2d 674, 677 (1974).

Moore v. State, 388 Md. 623, 641-42, 882 A.2d 256, 266-67 (2005).

       In the present case, H.B. 919, containing a number of provisions, received an

unfavorable vote in the Judiciary Committee. The fact that the Committee vote was

unfavorable regarding a multilayered bill is not persuasive that the Legislature was, in so

doing, adhering to the viewpoint advocated by Yonga.

       Moving forward, with respect to Rule 4-331(c)(1), which informed the standard

adopted in Section 8-301(a)(1), its history reflects that the standard of “substantial or

significant possibility that the result may have been different” was to be applied when a

conviction resulted from a trial. The rule traces its origin to two Rules, 759 and 764. Rule

759(a) provided for a motion for new trial “in the interest of justice” in a criminal setting,

but looked to Rule 567 which applied to civil cases for its procedural requirement:

       A motion for a new trial shall be made pursuant to Rule 567 (New Trial). A
       motion for a new trial shall be heard by the court in which the motion is
       pending. The court may grant a new trial if required in the interest of
       justice.[20]

20
   Rule 567, referenced in Rule 759(a), related to civil trials, such that a motion for a new
trial was required to be filed within three days of the verdict, or judgment in a bench trial:
       A motion for a new trial as to all or part of the matters in controversy shall
       be filed within three days after the reception of a verdict, or, in case of a
       special verdict or a trial by the court within three days after the entry of a
       judgment nisi.
Rule 567(a) (1976).


                                             24
Rule 759(a) (1976). Rule 764(b)(3) provided a vehicle for a motion for a new trial on the

basis of newly discovered evidence “which by due diligence could not have been

discovered in time” to comply with Rule 759:

      The court may, pursuant to a motion filed within the time set forth in
      subsection 1 of this section, grant a new trial or other appropriate relief on
      the ground of newly discovered evidence which by due diligence could not
      have been discovered in time to move for a new trial under section a of
      Rule 759 (Motions After Verdict).

Rule 764(b)(3) (1976).

      In 1978, Rule 759(a) was merged with Rule 764(b)(3) to create a new rule, Rule

770, requiring that a motion for new trial be filed within three days of the verdict or

within 90 days if based on newly discovered evidence:

      a. Motion by Defendant
      Upon motion of the defendant filed within three days after a verdict the
      court, in the interest of justice, may order a new trial.

      b. Newly Discovered Evidence
      Upon motion filed within 90 days after the imposition of sentence or within
      90 days after receipt by the court of a mandate issued by the Court of
      Appeals or the Court of Special Appeals, whichever is later, a court may
      grant a new trial or other appropriate relief on the ground of newly
      discovered evidence, which, by due diligence, could not have been
      discovered in time to move for a new trial pursuant to section a of this Rule.

Rule 770 (1978).

      When the rules were subsequently renumbered in 1984, Rule 4-331 replaced Rule

770, and the motion for new trial based on newly discovered evidence was shifted to

paragraph (c), which permitted the filing of the motion when the evidence was not

discoverable by due diligence in time to file within the time limitation specified under



                                           25
paragraph (a).21 Rule 4-331 (1985). Rule 4-331(c)(1), in its current form, provides for

filing a motion for a new trial based on newly discovered evidence within one year from

the date of the sentence or mandate. Rule 4-331(c)(1) provides:

         (c) Newly Discovered Evidence. The court may grant a new trial or other
         appropriate relief on the ground of newly discovered evidence which could
         not have been discovered by due diligence in time to move for a new trial
         pursuant to section (a) of this Rule:

            (1) on motion filed within one year after the later of (A) the date the
            court imposed sentence or (B) the date the court received a mandate
            issued by the final appellate court to consider a direct appeal from the
            judgment or a belated appeal permitted as post conviction relief[.]


21
     Rule 4-331 initially provided, in relevant part:
         (a) Within Ten Days of Verdict. – On motion of the defendant filed within
         ten days after a verdict, the court, in the interest of justice, may order a new
         trial.

         (b) Revisory Power. – The court has revisory power and control over the
         judgment to set aside an unjust or improper verdict and grant a new trial:
            (1) in the District Court, on motion filed within 90 days after its
            imposition of sentence if an appeal has not been perfected;
            (2) in the circuit courts, on motion filed within 90 days after its
            imposition of sentence.

         Thereafter, the court has revisory power and control over the judgment in
         case of fraud, mistake, or irregularity.

      (c) Newly Discovered Evidence. – The court may grant a new trial or other
      appropriate relief on the ground of newly discovered evidence which could
      not have been discovered by due diligence in time to move for a new trial
      pursuant to section (a) of this Rule:
         (1) in the District Court, on motion filed within one year after its
         imposition of sentence if an appeal has not been perfected;
         (2) in the circuit courts, on motion filed within one year after its
         imposition of sentence or its receipt of a mandate issued by the Court
         of Appeals or the Court of Special Appeals, whichever is later.
Rule 4-331 (1985).


                                                26
Rule 4-331 (2013).

       No case has been located, nor have the parties provided a citation to any, in which

a motion for new trial under Rule 4-331(c)(1) has been asserted when the proponent pled

guilty. In every case found, the opinion grappled with whether there was a substantial

possibility that a different result would have occurred in the trial, whether jury or bench,

as a result of the newly discovered evidence. See Grandison v. State, 425 Md. 34, 38

A.3d 352 (2012); Evans v. State, 382 Md. 248, 855 A.2d 291 (2004); Campbell, 373 Md.

at 637, 821 A.2d at 1; Argyrou v. State, 349 Md. 587, 709 A.2d 1194 (1998); Wiggins v.

State, 324 Md. 551, 597 A.2d 1359 (1991); Yorke, 315 Md. at 578, 556 A.2d at 230;

Stevenson v. State, 299 Md. 297, 473 A.2d 450 (1984) (motion for a new trial under then

Rule 770 b); Crippen v. State, 207 Md. App. 236, 52 A.3d 111 (2012); Ramirez v. State,

178 Md. App. 257, 941 A.2d 1141 (2008); Fields v. State, 168 Md. App. 22, 895 A.2d

339 (2006); Mack v. State, 166 Md. App. 670, 891 A.2d 369 (2006); Jackson, 164 Md.

App. at 679, 884 A.2d at 694; Gravely v. State, 164 Md. App. 76, 882 A.2d 889 (2005);

Newman v. State, 156 Md. App. 20, 845 A.2d 71, rev’d, 384 Md. 285, 863 A.2d 321

(2004); Berringer v. Steele, 133 Md. App. 442, 758 A.2d 574 (2000); Love, 95 Md. App.

at 420, 621 A.2d at 910; Bloodsworth v. State, 76 Md. App. 23, 543 A.2d 382 (1988).

       In Campbell, for example, we reiterated the importance of the trial judge’s role in

weighing that which was newly discovered against evidence presented during the earlier

trial, noting that, “This Court long has recognized that a new trial may be granted by the

judge in a criminal case tried to a jury.” 373 Md. at 655, 821 A.2d at 12 (emphasis

added). In affirming Campbell’s conviction, we recognized that, “The trial judge in the


                                            27
present matter weighed the newly discovered evidence and considered its significance in

relation to the evidence already presented at trial.” Id. at 670, 821 A.2d 20 (emphasis

added). We concluded in that case that the trial judge did not “exceed” his discretion in

determining the newly discovered evidence was unlikely to have led to a different result:

       The trial judge “felt the pulse of the trial” and was entitled to rely on his
       own impressions to determine, without exceeding the limits of his
       discretion, that the new evidence bearing on [the witness’s] trustworthiness
       was not substantially likely to tip the balance in favor of [the defendant].

Id. at 672, 821 A.2d at 21.

       Yonga, though, asserts one of our recent cases, State v. Matthews, 415 Md. 286,

999 A.2d 1050 (2010), undermines the conclusion that to invoke Section 8-301 one must

have been convicted after trial. In the case, Matthews had pled guilty to second degree

murder and use of a handgun in the commission of a felony or crime of violence.

Following a string of unsuccessful motions and petitions for post-conviction relief that

consumed six years, Matthews filed a motion for a new trial based on newly discovered

evidence, which was denied without a hearing. Matthews appealed, arguing that under

Rule 4-331(c)(1) he was entitled to a hearing on his motion. Our intermediate appellate

court agreed with Matthews, and we granted certiorari to address whether a hearing was

required under 4-331(c)(1).

       We held that because Section 8-301 had been enacted while the case was pending

and there was a dearth of “rules of procedure to guide the process” Matthews’s motion

for a new trial, untimely under Rule 4-331(c)(1), could be treated as a Petition for Writ of




                                            28
Actual Innocence and we left the issue of whether the petition met the requirements of

the statute for the circuit court to address:

       Consequently, we shall vacate the judgment of the Court of Special
       Appeals, with instructions to vacate the judgment of the Circuit Court and
       to remand, so that the Circuit Court may consider Matthews's motion as a
       Petition for Writ of Actual Innocence. Whether the alleged newly
       discovered evidence “could not have been discovered in time to move for a
       new trial under Maryland Rule 4–331,” Section 8–301(a)(2) of the Criminal
       Procedure Article, whether Matthews's motion satisfies the requirements of
       Section 8–301(b), whether a hearing is required under Section 8–301(e),
       and whether counsel should be appointed, we leave for the Circuit Court to
       address.

Id., 415 Md. at 298, 999 A.2d at 1057. We, therefore, did not decide, as Yonga suggests,

that Matthews was entitled to proceed on a Writ of Actual Innocence.

       Why, though, is a trial the appropriate vehicle against which we measure the

“substantial or significant possibility that the result may have been different”? Judge

Moylan, writing for the Court of Special Appeals, eloquently described the reasons why

trials present the essential paradigm in the weighing process against which the

“substantial or significant possibility” standard manifest in Rule 4-331(c)(1) and a

bedrock of 8-301 is measured:

       There is, however, no way to compare the trial that was with the trial that
       might have been when there was no trial that was. Where there was no trial,
       it would be utter speculation to attempt to construct what the imaginary trial
       might have consisted of. We may not hypothesize a mythical trial. The
       statement of facts offered in support of the guilty plea is only minimalist. A
       State's Attorney's Office going before a jury would almost certainly opt for
       a more maximal case of guilt. We do not know, therefore, what witnesses
       would have been called or what, under direct and cross-examination, they
       might have said. We do not know whether the appellant would or would not
       have testified and, if he did testify, how his testimony would have held up.
       We do not know what medical reports might have been submitted. There
       would be self-evidently no way to make the prescribed comparison. Newly


                                                29
       discovered evidence simply cannot be measured in the case of a conviction
       based on a guilty plea. With what cast of characters, moreover, would we
       people our hypothetical testing? Do we ask whether the hypothetical jury
       that might have rendered a guilty verdict after a hypothetical trial would
       probably have rendered a different verdict? Or do we ask, as in this case,
       whether Judge Levitz would still have accepted the guilty plea? These are
       very different questions. The criteria for rendering a trial verdict and the
       criteria for accepting a guilty plea are not remotely the same.

Yonga, 221 Md. App. at 68-69, 108 A.3d at 462. As a result of the different criteria

utilized at trial and a guilty plea, the test of the persuasive weight of the newly discovered

evidence contained in 8-301(a)(1), with its foundation in 4-331(c)(1), would not be

applicable where the defendant had pled guilty:

       The acid test is to ask whether, if that jury had had the benefit of the newly
       discovered evidence as well as the evidence that was before them, would
       there be “a substantial or significant possibility that the result would have
       been different?” There is no way that such a test can be applied, however,
       to a conviction based on a guilty plea rather than upon a trial. The
       minimalist statement of facts offered in factual support of a guilty plea is no
       equivalent of or substitute for an actual trial. It was never intended to be.

       Generally speaking, we have no firm idea what the proof of guilt might
       have been that the jury might have heard because there was no jury and
       there was no trial. Would the State have mounted an “all out” strong
       prosecution or simply have put on an adequate prosecution? That could
       make a big difference. The answer might, of course, depend not simply on
       the availability of the evidence but upon such other imponderables as the
       adequacy of the staffing of the State's Attorney's Office at a given moment,
       the depth of the State's Attorney's budget at a given moment, or upon how
       busy or unbusy the Office was with other cases on its agenda at a given
       moment. Might the State, in a case such as this, have mounted a full-scale
       effort and hired expert computer technicians to retrieve the text of the
       chatting between Yonga and his victim? Such a text may not have been
       critical to the actus reus of rape, which may have been interrupted in the
       nick of time by the victim's mother. It could have been both revealing and
       devastating, on the other hand, as to Yonga's mens rea. It is not unheard of,
       moreover, where the actus reus is ambiguous enough that it could
       reasonably tilt in either direction, that a damning mens rea could nudge an
       unsympathetic jury in a given direction.


                                             30
       At such a purely hypothetical trial, moreover, might Yonga have invoked
       his right to silence? Under the facts of this case, such silence could have
       been fatal, whatever the Fifth Amendment instruction might be about not
       using his silence against him. Or if Yonga had taken the stand, how might
       he have stood up against rigorous and sustained cross-examination? We
       cannot know any of this and that is why the newly discovered evidence
       cannot possibly be measured against an unknown antecedent. Guilty pleas
       simply do not lend themselves to newly discovered evidence analysis. We
       would have no standard to measure the newly discovered evidence against.
       Q.E.D.

Id. at 69-70, 108 A.3d at 462-63. Thus, the weighing mechanism required by the

“substantial or significant possibility” standard adopted in Section 8-301(a)(1), and

judicially determined through Rule 4-331(c)(1), can only be utilized after a jury or bench

trial resulting in conviction has occurred. See Argyrou v. State, 349 Md. 587, 600, 709

A.2d 1194, 1200 (1998) (“It may be said that the breadth of a trial judge’s discretion to

grant or deny a new trial is not fixed and immutable, it will expand or contract depending

upon the nature of the factors being considered, and the extent to which its exercise

depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely

on his or her own impressions in determining questions of fairness and justice.”).

       In contrast, a guilty plea contains none of the facets of a trial, evidence production

and credibility determinations, for example, that informs the court when evaluating

whether the proffered newly discovered evidence had a substantial or significant

possibility that a different result would have occurred. When an individual pleads guilty,

credibility determinations are not tested, reliability and validity are not challenged, and

relevance is not an issue. The gravamen of a guilty plea is whether it was undertaken by

the accused “voluntarily, knowingly, and intelligently, with sufficient awareness of the


                                             31
relevant circumstances and likely consequences.” Bradshaw v. Stumpf, 545 U.S. 175,

183, 125 S. Ct. 2398, 2405, 162 L. Ed. 2d 143, 153 (2005) (internal quotation omitted). A

trial judge, in accepting a guilty plea, is primarily concerned with insuring its validity, not

with the weight of the evidence.

       We agree, then, with our brethren on the Court of Special Appeals that only a

conviction garnered after a bench or jury trial can provide the fodder against which the

standard in Section 8-301(a)(1) can be measured. Our conclusion has been well

articulated by one of our former members, Judge Alan Wilner, now retired, who as chair

of the Standing Committee on Rules of Practice and Procedure presented to this Court

Rule 4-332 to implement Section 8-301.22 During a discussion on all fours with the issue



22
  Subsequent to the enactment of Section 8-301 and our decision in Matthews, Rule 4-
332 was implemented in October 2011, adopting the standard provided under Section 8-
301(a)(1) and embodied in Rule 4-331(c)(1) (emphasis added):

       (a) Scope. This Rule applies to an action seeking a writ of actual innocence
       as provided by Code, Criminal Procedure Article, § 8-301.

       (b) Filing; Caption. An action for a writ of actual innocence is commenced
       by the filing of a petition in the court where the conviction took place. The
       caption of the petition shall state the number of the criminal case to which
       the petition relates. If practicable, the petition shall be filed in the criminal
       action.

       (c) Timing. A petition under this Rule may be filed at any time.

       (d) Content of Petition. The petition shall be in writing, shall be signed by
       the petitioner or the petitioner's attorney, and shall state:

          (1) the court in which the indictment or criminal information was filed
          and the file number of that case;
                                                                           (continued . . .)

                                              32
(. . . continued)
            (2) if the case was removed to another court for trial, the identity of
            that court;
            (3) each offense of which the petitioner was convicted, the date of the
            judgment of conviction, and the sentence imposed;
            (4) if the judgment was appealed, the case number in the appellate
            court, a concise description of the issues raised in the appeal, the
            result, and the date of the appellate court's mandate;
            (5) for each motion or petition for post-judgment relief, the court in
            which the motion or petition was filed, the case number assigned to
            each proceeding, a concise description of the issues raised, the result,
            and the date of disposition;
            (6) that the request for relief is based on newly discovered evidence
            which, with due diligence, could not have been discovered in time to
            move for a new trial pursuant to Rule 4-331;
            (7) a description of the newly discovered evidence, how and when it
            was discovered, why it could not have been discovered earlier, and, if
            the issue of whether the evidence could have been discovered in time
            to move for a new trial pursuant to Rule 4-331 was raised or decided
            in any earlier appeal or post-judgment proceeding, the identity of the
            appeal or proceeding and the decision on that issue;
            (8) that the newly discovered evidence creates a substantial or
            significant possibility, as that standard has been judicially
            determined, that the result may have been different, and the basis for
            that statement;
            (9) that the conviction sought to be vacated is based on an offense that
            the petitioner did not commit;
            (10) if the petitioner is not already represented by counsel, whether
            the petitioner desires to have counsel appointed by the court and, if so,
            facts establishing indigency;
            (11) that a copy of the petition, together with all attachments, was
            mailed to the State's Attorney of the county in which the petition was
            filed;
            (12) the relief requested; and
            (13) whether a hearing is requested.

       (e) Notices.
          (1) To State's Attorney. The petitioner shall send a copy of the
          petition with all attachments to the State's Attorney of the county in
          which the petition was filed.
                                                                          (continued . . .)

                                              33
(. . . continued)
            (2) To Victim or Victim's Representative. Upon receipt of the petition,
            the State's Attorney shall notify any victim or victim's representative
            of the filing of the petition, as provided by Code, Criminal Procedure
            Article, § 11-104 or § 11-503.
            (3) To Public Defender. If the petitioner has requested an attorney and
            has alleged inability to employ one, the court shall send a copy of the
            petition and attachments to the Collateral Review Division of the
            Office of the Public Defender.

       (f) Response by State's Attorney. Within 90 days after receipt of the
       petition and attachments, the State's Attorney shall file a response, serve a
       copy on the petitioner, and, if indigency is alleged, send a copy to the
       Collateral Review Division of the Office of the Public Defender.

       (g) Response by Public Defender. Within 30 days after the State files its
       response, or, if no response is timely filed, the expiration of the time
       allowed for the State's response in section (f) of this Rule, the Office of the
       Public Defender shall (1) enter its appearance, (2) notify the court in
       writing that it declines to provide representation to the petitioner, or (3)
       request from the court an extension of the time for deciding whether to
       provide representation to the petitioner and state a specific reason for the
       request.

       (h) Amendments. Amendments to the petition shall be freely allowed in
       order to do substantial justice. If an amendment is made, the court shall
       allow the State a reasonable opportunity to respond to the amendment.

       (i) Dismissal of Petition; Appointment of Counsel.
           (1) Dismissal of Petition. Upon consideration of the petition and the
           State's response, the court may (A) dismiss the petition if it finds as a
           matter of law that the petition fails to comply substantially with the
           requirements of section (d) of this Rule or otherwise fails to assert
           grounds on which relief may be granted or (B) grant leave to amend
           the petition to correct the deficiency. If the court finds a lack of proper
           venue, the court shall transfer the petition to the court with proper
           venue.
           (2) Appointment of Counsel. If the court finds that a petitioner who
           has requested the appointment of counsel is indigent and the Office of
           the Public Defender has declined to provide representation, the court
           may appoint counsel after the State has filed its response unless (A)
                                                                                 (continued . . .)

                                               34
before us, Judge Wilner, responding directly to whether a guilty plea was an appropriate

vehicle against which an 8-301 petition could be measured, stated:

      Either version is appropriate for adoption by the Court.[23] Alternative B is
      the easier one, it simply tracks the statutory language . . . . At some point,
      or points, this Court will need to resolve them. The Court certainly can, if it
      wishes, adopt Alternative B and deal with those issues in the judicial
      context when they arise . . . . And the second [issue] is in what
      circumstances if any, if any, would it be legally possible for a court to find
      that the new evidence creates a significant possibility that the result would
      have been different if the conviction is based on a straight out guilty plea
      that was found to be knowing and voluntary and supported by a statement
      of facts that was sufficient to establish prima facie guilt . . . . Can a court
      legally conclude that the defendant did not commit the crime if, often under
      oath, the defendant knowingly and voluntarily told the judge taking a guilty
      plea that he did commit the crime. That he was pleading guilty because he

(. . . continued)
            the court denies the petition as a matter of law or (B) counsel has
            already filed an appearance to represent the petitioner.

      (j) Hearing.
          (1) When Required. Except as provided in subsection (i)(1) of this
          Rule, the court shall hold a hearing on the petition if the petition
          substantially complies with the requirements of section (d) of this
          Rule and a hearing was requested.
          (2) Right of Victim or Victim's Representative to Attend. A victim or
          victim's representative has the right to attend a hearing on the petition
          as provided under Code, Criminal Procedure Article, § 11-102.

      (k) Burden of Proof. The petitioner has the burden of proof to establish a
      right to relief.

      (l) Ruling.
          (1) Actions of Court. If the court finds that the petitioner is entitled to
          relief, it may set aside the verdict or judgment of conviction, grant a
          new trial, re-sentence the petitioner, or correct the sentence.
          (2) Reasons for Ruling. The court shall state the reasons for its ruling
          on the record.
23
   Two versions of Rule 4-332 were presented to this Court. Alternative B, which we
adopted, followed the language included in Section 8-301(a)(1).


                                            35
      was guilty. When we took this back and looked at that, one thought is there
      is just no way. It’s a direct contradiction. But, that there might be a basis for
      relief if one could imagine that the new evidence was such that it would not
      have allowed the statement of facts to be presented in the way that it was.
      But frankly, we couldn’t think of any other circumstance in which the court
      could say, well, I’m now convinced by a preponderance of the evidence
      that you didn’t commit the crime when you pled guilty and told the judge
      you were guilty.

As to whether newly discovered evidence might suggest the defendant would not have

pled guilty, had the evidence been known at the time and its relation to actual innocence,

Judge Wilner responded:

      Now obviously the defendant would know whether he committed the crime
      or not, so, but I wouldn’t have pled guilty because I could have a better shot
      at being acquitted. The only problem with that is how do you prove or
      disprove it? It’s, you either believe the defendant when he says I wouldn’t
      have pled guilty if I had known about this evidence and how does one test
      that?

We agree, as we did when we adopted Alternative B.

      In conclusion, the history of the legislation, our implementation through our Rules

as well as our understanding of what “actual innocence” means, juxtaposed against what

a guilty plea involves, support our conclusion that a person who has pled guilty may not

later avail himself or herself of the relief afforded by the Petition for a Writ of Actual

Innocence.

                                                  JUDGMENT OF THE COURT OF
                                                  SPECIAL APPEALS AFFIRMED;
                                                  COSTS TO BE PAID BY THE
                                                  PETITIONER.




                                             36
