William Todd Jamison v. State of Maryland, No. 6, Sept. Term, 2016 Opinion by
Battaglia, J.

CRIMINAL PROCEDURE – OTHER POSTCONVICTION REVIEW – DNA
EVIDENCE—POSTCONVICTION REVIEW– MD. CODE ANN., CRIM. PROC.
§ 8-201 (2008 Repl. Vol., 2009 Supp.) – Court of Appeals held that the Petition for DNA
testing, under Section 8-201 of the Criminal Procedure Article, was not available to an
individual who earlier entered an Alford plea, considered a guilty plea, to the same
offense.
Circuit Court for Baltimore County,
Maryland
Criminal Case No. 90 CR 3657
Argued: September 9, 2016

                                            IN THE COURT OF APPEALS

                                                   OF MARYLAND

                                                         No. 6

                                                September Term, 2016
                                      ______________________________________

                                             WILLIAM TODD JAMISON
                                                           v.
                                              STATE OF MARYLAND
                                      ______________________________________

                                           Barbera, C.J.,
                                           Greene,
                                           Adkins,
                                           McDonald,
                                           Hotten,
                                           Getty
                                           Battaglia, Lynne A. (Retired, Specially
                                           Assigned),

                                                        JJ.
                                      ______________________________________

                                                 Opinion by Battaglia, J.
                                        Barbera, C.J. and McDonald, J., concur in
                                                        judgment.

                                      ______________________________________


                                               Filed: November 15, 2016
       William Todd Jamison, Petitioner, was indicted in 1990 in Baltimore County on

fifteen charges related to a sexual assault; the charges included: first degree rape, second

degree rape, kidnapping, false imprisonment, first degree sexual offense, second degree

sexual offense, third degree sexual offense, attempted murder, robbery, theft, assault,

battery, and impersonating a police officer. Jamison, thereafter, entered an Alford plea1 to

first degree rape and kidnapping and was sentenced to life imprisonment plus 30 years.

       In 2008, Jamison filed a Petition for DNA Testing, alleging that newly discovered

slides containing cellular material from swabs taken from the victim’s vulva, vagina, and

endocervix needed to be tested:

       41. The Slides constitute “scientific identification evidence” under Maryland Code
       of Criminal Procedure Section 8-201. The sperm on the Slides was apparently
       deposited by the sole suspect in this matter. A DNA test that excludes Mr. Jamison
       as the source of the sperm would compel the conclusion that he is innocent of the
       crimes for which he has been convicted and is incarcerated. Accordingly, the
       evidence in this case meets the standards for court-ordered DNA testing pursuant
       to Maryland Code of Criminal Procedure Section 8-201.

Judge Patrick Cavanaugh of the Circuit Court for Baltimore County granted Jamison’s

motion, and Orchid Cellmark of Dallas, Texas conducted the testing. Jamison, thereafter,

filed a Motion to Vacate Conviction pursuant to Section 8-201 of the Criminal Procedure

Article of the Maryland Code (2008 Repl. Vol, 2009 Supp.).2 He contemporaneously


1
  An Alford plea “lies somewhere between a plea of guilty and a plea of nolo contendere”
and “[l]ike a guilty plea and nolo plea, the Alford plea waives challenges to adverse
rulings on pretrial motions and all procedural objections, constitutional or otherwise,
limiting appeals to jurisdictional defects and challenges based on the propriety of the trial
court’s acceptance of the plea.” Bishop v. State, 417 Md. 1, 19-20 (2010) (internal
citations omitted). See also North Carolina v. Alford, 400 U.S. 25 (1970).
2
  Section 8-201 of the Criminal Procedure Article provides, in relevant part:
                                                                           (continued . . . )

                                             1
( . . . continued)

       (a) Definitions. —
                                      *      *      *      *
               (2) “Biological evidence” includes, but is not limited to, any blood, hair,
               saliva, semen, epithelial cells, buccal cells, or other bodily substances from
               which genetic marker groupings may be obtained.
                                      *       *     *      *
               (5) “Scientific identification evidence” means evidence that:
                       (i) is related to an investigation or prosecution that resulted in a
                       judgment of conviction;
                       (ii) is in the actual or constructive possession of a law enforcement
                       agency or agent of a law enforcement agency; and
                       (iii) contains biological evidence from which DNA may be
                       recovered that may produce exculpatory or mitigating evidence
                       relevant to a claim of a convicted person of wrongful conviction or
                       sentencing if subject to DNA testing
       (b) Filing of petition. —Notwithstanding any other law governing postconviction
       relief, a person who is convicted of a violation of § 2–201, § 2–204, § 2–207, or
       §§ 3–303 through 3–306 of the Criminal Law Article may file a petition:
               (1) for DNA testing of scientific identification evidence that the State
               possesses as provided in subsection (j) of this section and that is related to
               the judgment of conviction; or
               (2) for a search by a law enforcement agency of a law enforcement data
               base or log for the purpose of identifying the source of physical evidence
               used for DNA testing.
       (c) New trial. — A petitioner may move for a new trial under this section on the
       grounds that the conviction was based on unreliable scientific identification
       evidence and a substantial possibility exists that the petitioner would not have
       been convicted without the evidence.
       (d) Findings requiring DNA testing. — (1) Subject to subsection (e) of this
       section, a court shall order DNA testing if the court finds that:
                       (i) a reasonable probability exists that the DNA testing has the
                       scientific potential to produce exculpatory or mitigating evidence
                       relevant to a claim of wrongful conviction or sentencing; and
                       (ii) the requested DNA test employs a method of testing generally
                       accepted within the relevant scientific community.
               (2) A court shall order a data base search by a law enforcement agency if
               the court finds that a reasonable probability exists that the data base search
               will produce exculpatory or mitigating evidence relevant to a claim of
               wrongful conviction or sentencing.
                                                                              (continued . . . )
                                               2
filed a Petition for Writ of Actual Innocence pursuant to Section 8-301 of the Criminal

( . . . continued)
         (e) Notification of petition; response. — (1) A petitioner shall notify the State in
         writing of the filing of a petition under this section.
                 (2) The State may file a response to the petition within 15 days after notice
                 of the filing or within the time that the court orders.
                                               *       *     *
          (g) Timeliness of testing. — (1) Except as provided in paragraph (2) of this
         subsection, DNA testing ordered under subsection (d) of this section shall be
         conducted as soon as practicable.
                 (2) Based on a finding of necessity, the court may order the DNA testing
                 to be completed by a date that the court provides.
         (h) Payment of costs. — (1) Except as provided in paragraph (2) of this
         subsection, the petitioner shall pay the cost of DNA testing ordered under
         subsection (d) of this section.
                 (2) If the results of the DNA testing that the court orders under this section
                 are favorable to the petitioner, the court shall order the State to pay the
                 costs of the testing.
         (i) Disposition upon receipt of results. — (1) If the results of the postconviction
         DNA testing are unfavorable to the petitioner, the court shall dismiss the petition.
                 (2) If the results of the postconviction DNA testing are favorable to the
                 petitioner, the court shall:
                         (i) if no postconviction proceeding has been previously initiated by
                         the petitioner under § 7–102 of this article, open a postconviction
                         proceeding under § 7–102 of this article;
                         (ii) if a postconviction proceeding has been previously initiated by
                         the petitioner under § 7–102 of this article, reopen a postconviction
                         proceeding under § 7–104 of this article; or
                         (iii) on a finding that a substantial possibility exists that the
                         petitioner would not have been convicted if the DNA testing results
                         had been known or introduced at trial, order a new trial.
         (3) If the court finds that a substantial possibility does not exist under paragraph
         (2)(iii) of this subsection, the court may order a new trial if the court determines
         that the action is in the interest of justice.
         (4) If a new trial is granted, the court may order the release of the petitioner on
         bond or on conditions that the court finds will reasonably assure the presence of
         the petitioner at trial.

                                  *      *      *     *
All references to Section 8-201 the Criminal Procedure Article are to the Maryland Code
(2008 Repl. Vol., 2009 Supp.), unless stated otherwise.

                                              3
Procedure Article of the Maryland Code (2008 Repl. Vol., 2009 Supp.).3 The State

responded on the merits but also raised the issue of Jamison’s guilty plea as a defense:

       11. In this case, the Defendant proceeded by way of a guilty plea. Even if the
       Cellmark evidence is reliable and admissible, its introduction into the guilty plea
       proceedings would not create a substantial possibility that Petitioner would not
       have been convicted based upon the overwhelming facts of guilt in this case.

       Judge Vicki Ballou-Watts of the Circuit Court for Baltimore County held a

hearing on the motions in November of 2014 and during the next year, denied them.

Jamison filed a timely notice of appeal under Section 8-201(k)(6)4 in which he raised the

following questions:

       1. Did the Circuit Court err in holding that a petitioner under Section 8-201 must
          prove that it is “more than . . . ‘likely’” that he would have been convicted but
          for new DNA evidence?
       2. Did the Circuit Court abuse its discretion when it found that the underlying
          DNA testing conducted by Cellmark was not reliable?
       3. Did the Circuit Court abuse its discretion when it found that evidence of DNA
          that matched neither the victim nor the defendant in the criminal action was not
          “favorable” to that defendant and did not produce a “substantial possibility” of
          a different result in that action?
       4. Did the Circuit Court err when it rejected Dr. Perlin’s probabilistic genotyping
          analysis of Appellant’s expert as irrelevant and not generally accepted in the
          scientific community?
       5. Did the Circuit Court consider improper factors in determining whether a new
          trial was warranted “in the interest of justice” under Maryland Code of
          Criminal Procedure Section 8-201(i)(3)?




3
  Jamison subsequently withdrew his Petition for Writ of Actual Innocence in 2016
following our decision in Yonga v. State, 446 Md. 183 (2016) in which we held that relief
under Section 8-301 is not available to a person who has pled guilty.
4
  Section 8-201(k)(6) of the Criminal Procedure Article allows for direct appeals to this
Court: “An appeal to the court of appeals may be taken from an order entered under this
section.”

                                             4
Before us, the State not only responds on the merits, but also asserts that Jamison cannot

avail himself of a Petition for DNA testing because he entered a plea rather than going to

trial. We agree.

       Section 8-201 permits post-conviction petitions for DNA testing of “scientific

identification evidence,” which is described in Section 8-201(a)(5) as evidence that:

           (i)   is related to an investigation or prosecution that resulted in a judgment of
                 conviction;
           (ii) is in the actual or constructive possession of a law enforcement agency or
                 agent of a law enforcement agency; and
           (iii) contains biological evidence from which DNA may be recovered that may
                 produce exculpatory or mitigating evidence relevant to a claim of a
                 convicted person of wrongful conviction or sentencing if subject to DNA
                 testing.

Section 8-201(d) articulates those findings that a court must make before ordering DNA

testing:

           (d) Findings requiring DNA testing. – (1) Subject to subsection (e) of this
           section, a court shall order DNA testing if the court finds that:
                 (i) a reasonable probability exists that the DNA testing has the scientific
                 potential to produce exculpatory or mitigating evidence relevant to a claim
                 of wrongful conviction or sentencing; and
                 (ii) the requested DNA test employs a method of testing generally accepted
                 within the relevant scientific community.

If the results of the DNA testing are unfavorable or favorable, Section 8-201(i) defines

the consequences:

       (i) Disposition upon receipt of results. – (1) If the results of the postconviction
       DNA testing are unfavorable to the petitioner, the court shall dismiss the petition.
           (2) If the results of the postconviction DNA testing are favorable to the
           petitioner, the court shall:




                                               5
                (i) if no postconviction proceeding has been previously initiated by the
                petitioner under § 7-102[5] of this article, open a postconviction
                proceeding under § 7-102 of this article;
                (ii) if a postconviction proceeding has been previously initiated by the
                petitioner under § 7-102 of this article, reopen a postconviction
                proceeding under § 7-104[6] of this article; or
                (iii) on a finding that a substantial possibility exists that the petitioner
                would not have been convicted if the DNA testing results had been
                known or introduced at trial, order a new trial.
           (3) If the court finds that a substantial possibility does not exist under
           paragraph (2)(iii) of this subsection, the court may order a new trial if the
           court determines that the action is in the interest of justice.
           (4) If a new trial is granted, the court may order the release of the petitioner on
           bond or on conditions that the court finds will reasonably assure the presence
           of the petitioner at trial.

       We acknowledge from the start that Section 8-201 is silent regarding whether a

person who has pled guilty is permitted or prohibited from pursuing a post-conviction

5
  Section 7-102 of the Criminal Procedure Article of the Maryland Code (2001, 2008
Repl. Vol.) provides:
       (a) In general. – Subject to subsection (b) of this section, §§ 7-103 and 7-104 of
       this subtitle and Subtitle 2 of this title, a convicted person may begin a proceeding
       under this title in the circuit court for the county in which the conviction took
       place at any time if the person claims that:
                (1) the sentence or judgment was imposed in violation of the Constitution
                of the United States or the Constitution or laws of the State;
                (2) the court lacked jurisdiction to impose the sentence;
                (3) the sentence exceeds the maximum allowed by law; or
                (4) the sentence is otherwise subject to collateral attack on a ground of
                alleged error that would otherwise be available under a writ of habeas
                corpus, writ of coram nobis, or other common law or statutory remedy.
       (b) Requirements to begin proceeding. – A person may begin a proceeding under
       this title if:
                (1) the person seeks to set aside or correct the judgment or sentence; and
                (2) the alleged error has not been previously and finally litigated or waived
                in the proceeding resulting in the conviction or in any other proceeding that
                the person has taken to secure relief from the person’s conviction.
6
  Section 7-104 of the Criminal Procedure Article of the Maryland Code (2001, 2008
Repl. Vol.) allows the court to “reopen a postconviction proceeding that was previously
concluded if the court determines that the action is in the interests of justice.”

                                             6
DNA test. Twenty-two states and the District of Columbia expressly permit those who

have pled guilty to seek post-conviction DNA testing,7 and one state statute expressly

prohibits those who have pled guilty from accessing post-conviction DNA testing.8 The

legislative history of Section 8-201 suggests, however, that the Legislature did not intend

for Section 8-201 to be available to those who have entered a guilty plea.

7
  Alaska Stat. § 12.73.010 (2014); Cal. Penal Code § 1405 (2001, 2016 Supp.); D.C.
Code § 22–4133 (2016); Fla. Stat. § 925.11 (2001, 2016 Supp.); Haw. Rev. Stat. § 844D–
130(a) (2005); Idaho Code Ann. § 19–4902 (2004, 2016 Supp.); 725 Ill. Comp. Stat.
5/116–3 (2009, 2016 Supp.); Iowa Code § 81.10 (2009); Ky. Rev. Stat. Ann. § 422.285
(2006, 2016 Supp.); La. Code Crim. Proc. Ann. art. 926.1 (2008, 2016 Supp.); Mass.
Gen. Laws ch. 278A, § 3 (2015); Miss. Code Ann. § 99–39–5 (2015); N.H. Rev. Stat.
Ann. § 651–D:2 (2016); N.M. Stat. § 31–1A–2 (2016); N.Y. Crim. Proc. Law §
440.30 (2012); N.C. Gen. Stat. § 15A–268 (2015); Okla. Stat. tit. 22, § 1373.2 (2003,
2016 Supp.); S.C. Code Ann., § 17–28–30 (2014); Tex. Code Crim. Proc. Ann. art. 64.03
(2007, 2016 Supp.); Utah Code Ann. § § 78B–9–301, 78B–9–402 (2010); Vt. Stat. Ann.
tit. 13 § 5570(a) (2009); W. Va. Code § 15–2B–14 (2014); Wyo. Stat. Ann. § 7–12–312
(2015).
        Some states have made judicial determinations that those who have entered a
guilty plea are not barred from accessing post-conviction DNA testing. See State v.
Winslow, 740 N.W.2d 794, 799 (Neb. 2007) (explaining that the statute contained broad
language that “wrongfully convicted persons have an opportunity to establish their
innocence through [DNA] testing,” Neb. Rev. Stat. § § 29-4117 (2009), and that absent
limiting language, the statute could not be construed to apply to only those convicted
pursuant to a trial); State v. Smith, 119 P.3d 679, 683-84 (Kan. 2005) (determining that a
person who pleads guilty is entitled to relief under its post-conviction DNA statute
because the legislature was capable of limiting the availability of the statute if it had
intended to, but the statute did not contain language denying post-conviction DNA testing
to people who have pled guilty); Weeks v. State, 140 S.W.3d 39, 45 (Mo. 2004)
(interpreting statutory language that referenced a guilty plea, “the clerk shall notify the
court reporter to prepare and file the transcript of the trial or the movant’s guilty plea and
sentencing hearing if the transcript has not been prepared or filed,” Mo. Rev. Stat. § §
547.035.5 (2002), as indicating legislative intent that those who have pled guilty are
entitled to file a petition under the statute).
8
   Ohio’s post-conviction DNA statute contains a provision that denies post-conviction
DNA testing to those who have pled guilty. Ohio Rev. Code Ann. § 2953.72 (c)(2)
(2015) (“An offender is not an eligible offender under division (C)(1) of this section
regarding any offense to which the offender pleaded guilty or no contest.”).

                                              7
       Before we forage into the woods of legislative intent,9 however, we must explore

whether Jamison’s Alford plea can be considered a guilty plea. We previously have

concluded that an Alford plea equates to a guilty plea. In Bishop v. State, 417 Md. 1, 20

(2010), we recognized that, “an Alford plea is the functional equivalent of a guilty plea”

because “[l]ike a guilty plea and nolo [contendere] plea, the Alford plea waives

challenges to adverse rulings on pretrial motions and all procedural objections,

constitutional or otherwise, limiting appeals to jurisdictional defects and challenges based

on the propriety of the trial court’s acceptance of the plea.” Bishop, 417 Md. at 20 (citing

Ward v. State, 83 Md. App. 474, 480 (1990)). In Ward, cited in Bishop, the Court of




9
 In Blake v. State, 395 Md. 213, 224-25 (2006), we reviewed the standard that applies
when ascertaining legislative intent:
      We look first to the language of § 8–201. We apply the well settled rules of
      statutory construction in interpreting the statute before us. The cardinal rule of
      statutory construction is to ascertain and effectuate the intent of the
      Legislature. See Oakland v. Mountain Lake, 392 Md. 301, 316, 896 A.2d 1036,
      1045 (2006). In ascertaining legislative intent, we first examine the plain language
      of the statute, and if the plain language of the statute is unambiguous and
      consistent with the statute’s apparent purpose, we give effect to the statute as it is
      written. See Mackey v. Compass, 391 Md. 117, 141, 892 A.2d 479, 493 (2006). If
      the language of the statute is ambiguous, we resolve the ambiguity in light of the
      legislative intent, considering the legislative history, case law, and statutory
      purpose. See Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594
      (2005). We consider both the ordinary meaning of the language of the statute and
      how that language relates to the overall meaning, setting, and purpose of the
      act. Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004). We avoid a
      construction of the statute that is unreasonable, illogical, or inconsistent with
      common sense. Gwin v. MVA, 385 Md. 440, 462, 869 A.2d 822, 835 (2005). We
      construe a statute as a whole so that no word, clause, sentence, or phrase is
      rendered surplusage, superfluous, meaningless, or nugatory. Moore v. State, 388
      Md. 446, 453, 879 A.2d 1111, 1115 (2005).

                                             8
Special Appeals recognized that, “we do not see how an Alford plea could be construed

as anything short of a guilty plea.” Ward, 83 Md. App. at 479.

          The colloquy conducted in 1990 by Judge Barbara Kerr Howe of the Circuit Court

for Baltimore County, when she took Jamison’s Alford plea, reflects a rights’ advisement

for a guilty plea:

          THE COURT: You understand that by pleading guilty you’re giving up
          constitutional rights to which you would otherwise be entitled?
          THE DEFENDANT: Yes
                                               *      *      *
          THE COURT: You understand that by speaking today and entering the guilty plea
          that you are, in all respects, indicating that you are guilty?
          THE DEFENDANT: Yes
          [DEFENSE COUNSEL]: He understands that, your Honor, but he - - yeah.
          THE COURT: I understand.

Judge Howe then explained to Jamison that, by pleading guilty, he was waiving various

rights:

          THE COURT: Do you understand that you are limited in your right to take an
          appeal from finding of guilt by this Court to four grounds? They can be whether or
          not this Court has proper jurisdiction; whether or not you’re entering a plea
          voluntarily today; whether or not you would receive an illegal sentence from the
          Court and whether or not you have a competent attorney representing you. Do you
          plead guilty today of your own free will and without condition?
          THE DEFENDANT: Yes.
          THE COURT: Are you pleading guilty because you believe that the evidence
          against you is very strong and that a guilty plea is in your best interests?
          THE DEFENDANT: Yes.
                                             *       *      *
          THE COURT: All right. Where did this offense take place?
          [DEFENSE COUNSEL]: Baltimore County, your Honor.
          THE COURT: In Baltimore County, sir?
          THE DEFENDANT: Yes.
          THE COURT: You understand that if the State proves that the offense took place -
          -
          [DEFENSE COUNSEL]: (Nodding head yes.)


                                              9
       THE COURT: -- any petition that you would make for right of appeal on that
       ground would probably not be particularly effective since Baltimore County would
       have been -- proved to the satisfaction of any Court to have been the proper
       jurisdiction in which this case should be tried?
       THE DEFENDANT: (Nodding head yes.)
       THE COURT: You understand that?
       THE DEFENDANT: Yes.
       THE COURT: You understand that unless I sentence you to an illegal sentence
       that you could not use that as a grounds to petition any court for an appeal?
       THE DEFENDANT: (Nodding head yes.)
       THE COURT: And you understand that the, the other grounds, the voluntariness
       of the plea, which we’ve just gone over, would -- the fourth and remaining ground
       for you to finally petition for a right to take an appeal? You understand?
       THE DEFENDANT: (Nodding head yes.)
       THE COURT: Are you pleading guilty today of your own free will?
       THE DEFENDANT: Yes.

Judge Howe also acknowledged on the record that Jamison had signed a document

entitled “Defendant’s Waiver of Constitutional Right on Plea of Guilty”:

       THE COURT: All right. In fact, you have actually signed Defendant’s waiver of
       constitutional rights on a plea of guilt[y]; is that correct?
       THE DEFENDANT: Yes.
       THE COURT: You acknowledge your signature on this document?
       THE DEFENDANT: Yes.
       THE COURT: All right. And in that plea agreement you’ve indicated that other
       than those discussions that you’ve had with the State about a nol pros being
       entered by the State to any remaining counts in this case, 90-CR-3567 and all of
       the counts in 90-CR-3961, that those were the only negotiations that you had with
       the State --
       THE DEFENDANT: (Nodding head yes.)

Judge Howe then accepted Jamison’s plea, after hearing the State’s recitation of the facts:

       All right. I find the Statement of Facts sufficient to find this Defendant, William
       Jamison, in Case No. 90-CR-3657 guilty beyond a reasonable doubt and to a
       moral certainty of Count One, rape in the first degree under Article 27, Section
       462 and guilty beyond a reasonable doubt and to a moral certainty of kidnapping
       under Article 27, Section 337, which is the third count of Case No. 90-CR-3657.




                                            10
Certainly, our jurisprudence, as well as the logistics of Jamison’s plea, support equating

his Alford plea with a guilty plea. 10

       Turning now to Section 8-201, the statute’s origins, before codification embodied

in Chapter 418 of the 2001 Maryland Laws, are found in Senate Bill 694 (“S.B. 694”),

Senate Bill 699 (“S.B. 699”), Senate Bill 15 (“S.B. 15”), and Senate Bill 84 (“S.B. 84”).

S.B. 699 limited post-conviction DNA testing to those persons who were sentenced to

death11 and contained various requirements for a court to grant a petition for post-

conviction DNA testing:

       (C) SUBJECT TO SUBSECTION (D) OF THIS SECTION, A COURT SHALL
       ORDER DNA TESTING IF THE COURT FINDS THAT:
             (1)   (I) THE EVIDENCE WAS NOT PREVIOUSLY SUBJECTED TO
             THE DNA TESTING THAT IS REQUESTED FOR REASONS BEYOND
             THE CONTROL OF THE PETITIONER; OR
                   (II) THE TYPE OF DNA TEST BEING REQUESTED IS
                   DIFFERENT FROM TESTS PREVIOUSLY CONDUCTED AND
                   WOULD HAVE A REASONABLE LIKELIHOOD OF
                   PROVIDING A MORE PROBATIVE RESULT THAN TESTS
                   PREVIOUSLY CONDUCTED;
             (2) THE EVIDENCE CONTAINING DNA WAS SECURED IN
             RELATION TO THE CRIME FOR WHICH THE PETITIONER WAS
             CONVICTED;

10
   In Jackson v. State, 448 Md. 387 (2016), we affirmed the denial of a new trial under
the post-conviction DNA statute after Jackson also had entered an Alford plea. In
Jackson, the issue of whether an Alford plea barred access to post-conviction DNA
testing, however, was not before us.
11
    S.B. 699 contained a provision that expressly limited the availability of the post-
conviction DNA testing statute to those who were serving death sentences:
        (B)    NOTWITHSTANDING             ANY       OTHER        LAW       GOVERNING
        POSTCONVICTION RELIEF, A PERSON WHO IS CONFINED UNDER
        SENTENCE OF DEATH MAY FILE A PETITION FOR DNA TESTING OF
        EVIDENCE THAT THE STATE POSSESSES AND THAT IS RELATED TO
        THE JUDGMENT OF CONVICTION.

                                            11
              (3) THE EVIDENCE TO BE TESTED HAS BEEN SUBJECT TO A
              CHAIN OF CUSTODY SUFFICIENT TO ESTABLISH THAT IT HAS
              NOT BEEN SUBSTITUTED,TAMPERED WITH, REPLACED, OR
              ALTERED IN ANY MATERIAL ASPECT;
              (4) IDENTITY WAS AN ISSUE IN THE TRIAL THAT RESULTED IN
              THE PETITIONER'S CONVICTION;
              (5) A REASONABLE PROBABILITY EXISTS THAT THE DNA
              TESTING HAS THE SCIENTIFIC POTENTIAL TO PRODUCE
              RESULTS MATERIALLY RELEVANT TO THE PETITIONER’S
              ASSERTION OF INNOCENCE; AND
              (6) THE REQUESTED DNA TEST EMPLOYS A METHOD OF
              TESTING GENERALLY ACCEPTED WITHIN THE RELEVANT
              SCIENTIFIC COMMUNITY.

S.B. 15 was similar to S.B. 699, albeit differing in its application to those convicted of a

felony and its requirement of the testing requirements contained in S.B. 699.12 S.B. 84

combined aspects of both S.B. 15 and S.B. 699, because it would have permitted those



12
     S.B. 15 provided in relevant part:
          (B)    NOTWITHSTANDING        ANY  OTHER    LAW    GOVERNING
          POSTCONVICTION RELIEF, A PERSON WHO WAS CONVICTED OF AND
          SENTENCED FOR A FELONY MAY FILE A PETITION FOR THE DNA
          TESTING OF EVIDENCE THAT THE STATE POSSESSES AND THAT IS
          RELATED TO THE JUDGMENT OF CONVICTION.
          (C) SUBJECT TO SUBSECTION (D) OF THIS SECTION, A COURT SHALL
          ORDER DNA TESTING IF THE COURT FINDS THAT:
                (1) THE EVIDENCE TO BE TESTED WAS NEVER PREVIOUSLY
                SUBJECTED TO THE DNA TESTING THAT IS REQUESTED
                BECAUSE THE TECHNOLOGY FOR SUCH TESTING WAS NOT
                AVAILABLE TO THE PETITIONER AT THE TRIAL;
                (2) THE EVIDENCE CONTAINING DNA WAS SECURED IN
                RELATION TO THE CRIME FOR WHICH THE PETITIONER WAS
                CONVICTED;
                (3) IDENTITY WAS AN ISSUE IN THE TRIAL THAT RESULTED IN
                THE PETITIONER'S CONVICTION; AND
                (4) A REASONABLE PROBABILITY EXISTS THAT THE DNA
                TESTING WILL PRODUCE RESULTS MATERIALLY RELEVANT TO
                THE PETITIONER'S ASSERTION OF INNOCENCE.

                                             12
convicted of a felony to petition for post-conviction DNA testing and required all six of

the testing requirements that S.B. 699 contained.13

        S.B. 694 would have applied to persons convicted of a crime punishable by a term

of imprisonment of more than a year, but did not contain the six testing requirements of



13
     S.B. 84, as introduced, provided, in relevant part:
          (B)     NOTWITHSTANDING              ANY       OTHER LAW GOVERNING
          POSTCONVICTION RELIEF, A PERSON WHO WAS CONVICTED OF AND
          SENTENCED FOR A FELONY MAY FILE A PETITION FOR DNA TESTING
          OF EVIDENCE THAT THE STATE POSSESSES AND THAT IS RELATED
          TO THE JUDGMENT OF CONVICTION.
          (C) SUBJECT TO SUBSECTION (D) OF THIS SECTION, A COURT SHALL
          ORDER DNA TESTING IF THE COURT FINDS THAT:
                 (1)     (I) THE EVIDENCE WAS NOT PREVIOUSLY SUBJECTED TO
                 THE DNA TESTING THAT IS REQUESTED FOR REASONS BEYOND
                 THE CONTROL OF THE PETITIONER; OR
                        (II) THE TYPE OF DNA TEST BEING REQUESTED IS
                        DIFFERENT FROM TESTS PREVIOUSLY CONDUCTED AND
                        WOULD HAVE A REASONABLE LIKELIHOOD OF
                        PROVIDING A MORE PROBATIVE RESULT THAN TESTS
                        PREVIOUSLY CONDUCTED;
                 (2) THE EVIDENCE CONTAINING DNA WAS SECURED IN
                 RELATION TO THE CRIME FOR WHICH THE PETITIONER WAS
                 CONVICTED;
                 (3) THE EVIDENCE TO BE TESTED HAS BEEN SUBJECT TO A
                 CHAIN OF CUSTODY SUFFICIENT TO ESTABLISH THAT IT HAS
                 NOT BEEN SUBSTITUTED, TAMPERED WITH, REPLACED, OR
                 ALTERED IN ANY MATERIAL ASPECT;
                 (4) IDENTITY WAS AN ISSUE IN THE TRIAL THAT RESULTED IN
                 THE PETITIONER’S CONVICTION;
                 (5) A REASONABLE PROBABILITY EXISTS THAT THE DNA
                 TESTING HAS THE SCIENTIFIC POTENTIAL TO PRODUCE
                 RESULTS MATERIALLY RELEVANT TO THE PETITIONER'S
                 ASSERTION OF INNOCENCE; AND
                 (6) THE REQUESTED DNA TEST EMPLOYS A METHOD OF
                 TESTING GENERALLY ACCEPTED WITHIN THE RELEVANT
                 SCIENTIFIC COMMUNITY.

                                            13
S.B. 699. S.B. 694 was enacted, however, and did contain the six testing requirements

included in the three other Senate bills, specifically:

       (c) Subject to subsection (d) of this section, a court shall order DNA testing if the
       court finds that:
         (1) (i) The scientific identification evidence was not previously subjected to the
               DNA testing that is requested for reasons beyond the control of the
               petitioner; or
               (ii) The type of DNA test being requested is different from tests previously
               conducted and would have a reasonable likelihood of providing a more
               probative result than tests previously conducted;
       (2) The scientific identification evidence was secured as provided in subsection (i)
       of this section, in relation to the crime for which the petitioner was convicted;
       (3) The scientific identification evidence to be tested has been subject to a chain of
       custody as provided under subsection (i) of this section that is sufficient to
       establish that it has not been substituted, tampered with, replaced, or altered in any
       material aspect;
       (4) Identity was an issue in the trial that resulted in the petitioner's conviction;
       (5) A reasonable probability exists that the DNA testing has the scientific potential
       to produce results materially relevant to the petitioner’s assertion of innocence;
       and
       (6) The requested DNA test employs a method of testing generally accepted within
       the relevant scientific community.

Testing requirement number four, “Identity was an issue in the trial that resulted in the

petitioner’s conviction,” is of importance because some of our sister states have

interpreted similar language in post-conviction DNA statute cases to prohibit a person

who has pled guilty from obtaining such testing.

       Pennsylvania’s statute, for example, requires that identity had to have been an

issue in the proceedings in order for a court to grant post-conviction DNA testing:

“identity of or the participation in the crime by the perpetrator was at issue in the

proceedings that resulted in the applicant’s conviction and sentencing.” 42 Pa. Consol.

Stat. Ann. § 9543.1(c)(3)(i)(2007). In Williams v. Erie County District Attorney’s Office,


                                              14
848 A.2d 967, 972 (Pa. Super. Ct. 2004), the court determined that a person who pled

guilty could not avail himself of the post-conviction DNA testing statute because of the

identity requirement:

       In light of this language, we are constrained to interpret § 9543.1 to preclude
       application to an applicant who has pleaded guilty. Subsection 9543.1(c)(3)
       requires the applicant to demonstrate that the “identity of or the participation in the
       crime by the perpetrator was at issue in the proceedings that resulted in the
       applicant’s conviction.” Id. § 9543.1(c)(3)(i). We fail to see how this mandatory
       element of an applicant’s prima facie case can be demonstrated where he pleaded
       guilty, thus nullifying any subsequent claim that the “identity of or the
       participation in the crime by the perpetrator was at issue.” Cf. [Commonwealth v.]
       Guth, 735 A.2d [709] at 711 n. 3 [Pa. Super. Ct. 1999]. Indeed, on the plain
       language of the statute, such a claim also must fail because we do not read the
       statute’s use of “proceedings” to encompass negotiations between the prosecution
       and the defense regarding plea bargains.

       The Arkansas Supreme Court arrived at the same conclusion when interpreting its

own statutory requirement that identity be at issue at trial as precluding those who have

pled guilty from accessing the post-conviction DNA testing statute. In Graham v. State,

188 S.W.3d 893 (Ark. 2004), Graham had pled guilty to capital murder; thereafter he

filed a petition for post-conviction DNA testing. Under the Arkansas statute in 2004, a

person may file a motion for post-conviction DNA testing if, among other requirements,

identity was an issue in the trial. Ark. Code Ann. § 16-112-202(b)(1) (2001). As a result,

the court concluded that: ‘[i]n entering his plea of guilty, appellant admitted that he

committed the offense. His identity was thus not in question.” Graham, 188 S.W.3d at

896.

       The implications of barring one who has pled guilty from accessing the post-

conviction DNA testing by the inclusion of the identity language was iterated by Ronald


                                             15
Weich, Counsel to The Justice Project, before the Maryland Senate Committee on

Judicial Procedures Regarding Post-Conviction DNA Testing, when he testified on the

four Senate bills:

       [T]here are documented cases in which innocent men, often those suffering from
       mental retardation or mental illness, actually confess and plead guilty to crimes
       they did not commit. Recent examples of such cases in the news include the Chris
       Ochoa case in Texas and the Earl Washington case in Virginia. These defendants
       could not claim that “identity was at issue” in their trials, yet access to post-
       conviction DNA testing exonerated them and freed them from prison.

The requirement of identity at issue was enacted, nevertheless, in 2001.

       In 2003, the Legislature clarified the definition of “scientific identification

evidence” and “biological evidence,” as well as clarified “under what circumstances a

court may order DNA testing” when Senate Bill 363 (“S.B. 363”) was enacted, which

subsequently became Chapter 240 of the Laws of 2003. The 2003 amendment, when

enacted, became Section 8-201(c)(1) and (2), which continues to pertain to the present

day:

       (c) Subject to subsection (d)[14] of this subtitle, a court shall order DNA testing if
       the court finds that:
              (1) a reasonable probability exists that the DNA testing has the scientific
              potential to produce exculpatory or mitigating evidence relevant to a claim
              of wrongful conviction or sentencing; and
              (2) the requested DNA test employs a method of testing generally accepted
              within the relevant scientific community.15



14
  Subsection (d) remained the same as it had been in 2001.
15
  Amendments to Section 8-201 enacted in 2008 shifted the then-existing Section 8-
201(c) to the current 8-201(d), which appears as follows:
         (d) Findings requiring DNA testing. – (1) Subject to subsection (e) of this
         section, a court shall order DNA testing if the court finds that:
                                                                           (continued . . . )
                                              16
       When juxtaposed against the 2001 statute, the relevant language of Section 8-

201(c) in 2003 reflects the following:




( . . . continued)
                      (i) a reasonable probability exists that the DNA testing has the
                      scientific potential to produce exculpatory or mitigating evidence
                      relevant to a claim of wrongful conviction or sentencing.
                      (ii) the requested DNA test employs a method of testing generally
                      accepted within the relevant scientific community.
               (2) A court shall order a data base search by a law enforcement agency if
               the court finds that a reasonable probability exists that the data base search
               will produce exculpatory or mitigating evidence relevant to a claim of
               wrongful conviction or sentencing.

                                             17
          Section 8-201(c) (2001)                          Section 8-201(c) (2003)
(c) Subject to subsection (d) of this             (c) Subject to subsection (d) of this
section, a court shall order DNA testing if       subtitle, a court shall order DNA testing if
the court finds that                              the court finds that:
(1) (i) the scientific identification evidence    (1) a reasonable probability exists that the
was not previously subjected to the DNA           DNA testing has the scientific potential to
testing that is requested for reasons             produce exculpatory or mitigating
beyond the control of the petitioner; or          evidence relevant to a claim of wrongful
(ii) the type of DNA test being requested         conviction or sentencing; and
is different from tests previously                (2) the requested DNA test employs a
conducted and would have a reasonable             method of testing generally accepted
likelihood of providing a more probative          within the relevant scientific community.
result than tests previously conducted;
(2) the scientific identification evidence
was secured as provided in subsection (i)
of this section, in relation to the crime for
which the petitioner was convicted;
(3) the scientific identification evidence to
be tested has been subject to a chain of
custody as provided under subsection (i)
of this section that is sufficient to establish
that it has not been substituted, tampered
with, replaced, or altered in any material
aspect;
(4) identity was an issue in the trial that
resulted in the petitioner’s conviction;
(5) a reasonable probability exists that the
DNA testing has the scientific potential to
produce results materially relevant to the
petitioner’s assertion of innocence; and
(6) the requested DNA test employs a
method of testing generally accepted
within the relevant scientific community.


       In determining whether the 2003 amendment which omitted reference to “identity

was at issue,” was intended to permit a person who has pled guilty to access the DNA

post-conviction statute, we are mindful of the fact that the purpose of the legislative

                                                  18
amendment was for “clarifying the definition of ‘biological evidence’; clarifying the

definition of ‘scientific identification evidence’; [and] clarifying under what

circumstances a court may order DNA testing.” In Chesek v. Jones, 406 Md. 446, 462

(2008), we considered the implications of clarifying language when we addressed

whether a special committee created by the Legislative Policy Committee, a bi-partisan

committee of the Maryland General Assembly, had the same power as the Legislative

Policy Committee to issue subpoenas. We determined where the subsequent amendment

was passed for the purpose of “clarifying that the Legislative Policy Committee may

delegate its authority to issue subpoenas . . . to any committee created by the [Legislative

Policy Committee],” the “clarifying” purpose was indicative of the legislative intent,

which was not to create a new power but to acknowledge one that already existed. Id.

       In Western Security Bank v. Superior Court, 933 P.2d 507 (Cal. 1997), the

Supreme Court of California evaluated whether an amendment to its anti-deficiency

statute for real property foreclosure actions, which was enacted as an emergency measure

to abrogate a California Court of Appeal’s decision, meant what it said when the

amendment’s stated purpose was “to confirm and clarify the law.” The California

Supreme Court emphasized that the use of the term “clarify” meant that the “true

meaning of the statute remains the same”:

       We assume the Legislature amends a statute for a purpose, but that purpose need
       not necessarily be to change the law. (Cf. Williams v. Garcetti (1993) 5 Cal.4th
       561, 568, 20 Cal.Rptr.2d 341, 853 P.2d 507.) Our consideration of the surrounding
       circumstances can indicate that the Legislature made material changes in statutory
       language in an effort only to clarify a statute’s true meaning. (Martin v. California
       Mut. B. & L. Assn. (1941) 18 Cal.2d 478, 484, 116 P.2d 71; GTE Sprint
       Communications Corp. v. State Bd. of Equalization (1991) 1 Cal.App.4th 827,

                                             19
       833, 2 Cal.Rptr.2d 441; see Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d
       821, 828, fn. 8, 114 Cal.Rptr. 589, 523 P.2d 629.) Such a legislative act has no
       retrospective effect because the true meaning of the statute remains the
       same. (Stockton Sav. & Loan Bank v. Massanet (1941) 18 Cal.2d 200, 204, 114
       P.2d592; In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1440, 28 Cal.Rpt
       r.2d 726; Tyler v. State of California (1982) 134 Cal.App.3d 973, 976–977, 185
       Cal. Rptr. 49.)

Id. at 514.

       In the present case, the legislative purpose in 2003 was to clarify the definition of

“scientific identification evidence” and “biological evidence,” as well as clarify “under

what circumstances a court may order DNA testing.” The removal of the language that

identity be at issue at trial, thus, was not an indication that the Legislature intended to

permit those who have pled guilty to file for post-conviction DNA testing.

       The second basis for our holding that someone who has pled guilty may not avail

himself of post-conviction DNA testing is found in the 2008 amendments to Section 8-

201(i), 16 which added the following language to what a court can do after favorable



16
  The 2008 amendments to Section 8-201, embodied in Chapter 337 of the Laws of 2008
reflected (where brackets indicate deleted language and CAPITALS indicate added
language):
       [(h)] (I) (1) If the results of the postconviction DNA testing are unfavorable to the
       petitioner, the court shall dismiss the petition.
               (2) If the results of the postconviction DNA testing are favorable to the
               petitioner, the court shall:
                       (i) if no postconviction proceeding has been previously initiated by
                       the petitioner under § 7–102 of this article, open a postconviction
                       proceeding under § 7–102 of this article; [or]
                       (ii) if a postconviction proceeding has been previously initiated by
                       the petitioner under § 7–102 of this article, reopen a postconviction
                       proceeding under § 7–104 of this article; OR
                                                                             (continued . . . )
                                              20
results are gleaned: “(iii) on a finding that a substantial possibility exists that the

petitioner would not have been convicted if the DNA testing results had been known or

introduced at trial, order a new trial.” The added language includes two components, the

first being an evaluative component requiring that the petitioner show a “substantial

possibility exists that the petitioner would not have been convicted if the DNA testing

results had been known or introduced,” and the second is a trial.

       Similar components were the subject of our analysis in Yonga v. State, 446 Md.

183 (2016), in which we held that someone who had pled guilty could not avail himself

or herself of Writ of Actual Innocence, when the pertinent language of Section 8-301(a)

of the Criminal Procedure Article of the Maryland Code (2008 Repl. Vol. 2013 Supp.),17



( . . . continued)
                      (III) ON A FINDING THAT A SUBSTANTIAL POSSIBILITY
                      EXISTS THAT THE PETITIONER WOULD NOT HAVE BEEN
                      CONVICTED IF THE DNA TESTING RESULTS HAD BEEN
                      KNOWN OR INTRODUCED AT TRIAL, ORDER A NEW
                      TRIAL.
               (3) IF THE COURT FINDS THAT A SUBSTANTIAL POSSIBILITY
               DOES NOT EXIST UNDER PARAGRAPH (2)(III) OF THIS
               SUBSECTION, THE COURT MAY ORDER A NEW TRIAL IF THE
               COURT DETERMINES THAT THE ACTION IS IN THE INTEREST OF
               JUSTICE.
               (4) IF A NEW TRIAL IS GRANTED, THE COURT MAY ORDER THE
               RELEASE OF THE PETITIONER ON BOND OR ON CONDITIONS
               THAT THE COURT FINDS WILL REASONABLY ASSURE THE
               PRESENCE OF THE PETITIONER AT TRIAL.
17
   Section 8-301(a) of the Criminal Procedure Article of the Maryland Code (2008 Repl.
Vol. 2013 Supp.) provided:
       (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
                                                                             (continued . . . )
                                               21
was considered against the backdrop of Maryland Rule 4-331(c)(1) (2013).18 Section 8-

301(a) was in issue in Yonga, the pertinent language of which allows a person convicted

of a crime in circuit court to petition for writ of actual innocence based on a claim of

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.” We emphasized the evaluative component of the standard of “substantial or

significant possibility that the result may have been different” and determined that the

standard required an analysis of the evidence presented during a trial, a conclusion which

was bulwarked by the reference in the statute to a new trial. We cited extensively to

Judge Charles E. Moylan Jr.’s opinion for the Court of Special Appeals in Yonga v.

State, 221 Md. App. 45, 68–70 (2015) in which he ably defined the process of

determining “substantial or significant possibility”:

( . . . continued)
         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.
18
   Maryland Rule 4-331(c)(1) (2013) provides, in relevant part:
         (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[.]

                                             22
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 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.

In every newly discovered evidence case, including newly discovered DNA
evidence or other newly discovered evidence of actual innocence, there is a
universally recognized procedure for measuring the persuasive weight of such
newly discovered evidence. That is the “before and after” test. We first look at the
evidence of guilt before the jury at the trial that led to the conviction. We then
look at the newly discovered evidence. 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

                                      23
       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.

       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.

Yonga, 221 Md. App. at 68–70. Our conclusion in Yonga followed; only after a trial can

the substantial or significant possibility standard be applied:

   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 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.

                                             24
Yonga, 446 Md. at 212-13.

       Such is the same result here. Section 8-201(i)(2)(iii) requires “a finding that a

substantial possibility exists that the petitioner would not have been convicted if the DNA

testing results had been known or introduced at trial.” Only subsequent to a conviction

after trial can the “substantial possibility” standard be applied.

       Jamison, however, asserts that Yonga should not pertain to the instant case for

numerous reasons, one of which was that the DNA proceedings themselves constituted a

trial, which ostensibly could be the subject of an evaluation. The DNA hearing, even if

considered a trial, is not a proceeding against which the standard applies. Jamison was

convicted after entering an Alford plea, not after a trial on the merits.

       Jamison also asserts that the Strickland v. Washington, 466 U.S. 668 (1984)19

standard of “reasonable probability” is evaluative, and is applicable to guilty pleas. The

reasonable probability of attorney incompetence can be measured against errors that may

arise in guilty pleas, whereas here there is insufficient evidence against which a

“substantial possibility exists that the petitioner would not have been convicted if the

DNA testing results had been known or introduced at trial” can be applied.



19
  Ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668
(1984) involve a reasonableness prong in which “[w]hen a convicted defendant
complains of the ineffectiveness of counsel’s assistance, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness,” id. at 687-
88, and a prejudice prong in which, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694

                                              25
       We, therefore, hold that a person who has pled guilty cannot avail himself of post-

conviction DNA testing under Section 8-201. In so doing, we are mindful that legislative

action may be more appropriate, should the Legislature choose to act, because of the

numerous variables that need to be considered to define the boundaries of post-conviction

DNA testing, were the petitioner to have pled guilty. In New York, a Justice Task Force,

considering whether to change a New York statute similar to ours, discussed the efficacy

of the application of a statute of limitations in any prospective statute, a limit on post-

conviction DNA testing after a guilty plea to certain offenses, and a consideration of

whether the petitioner had a prior opportunity for testing, among other issues. New York

State Justice Task Force, Recommendations Regarding Post-Conviction Access to DNA

Testing and Databank Comparisons (Jan. 2012), available at: https://perma.cc/T8UB-

M2GV.


                                                   JUDGMENT OF THE CIRCUIT
                                                   COURT FOR BALTIMORE
                                                   COUNTY AFFIRMED. COSTS TO
                                                   BE PAID BY APPELLANT.




                                              26
Circuit Court for Baltimore County
Case No. 03-K-90-003657
Argued: September 9, 2016


                                     IN THE COURT OF APPEALS
                                          OF MARYLAND


                                               No. 6
                                        September Term, 2016


                                     WILLIAM TODD JAMISON

                                                   v.

                                       STATE OF MARYLAND


                                             Barbera, C.J.
                                             Greene
                                             Adkins
                                             McDonald
                                             Hotten
                                             Getty
                                             Battaglia, Lynne A.
                                             (Retired,
                                             Specially Assigned)

                                                    JJ.


                                       Opinion by McDonald, J.,
                                       which Barbera, C.J., joins,
                                      concurring in the judgment.
                                                   .

                                        Filed: November 15, 2016
       I join the judgment in this case, but not the Court’s opinion. The Circuit Court

held that Mr. Jamison is not entitled to relief under the post-conviction DNA testing

statute, Maryland Code, Criminal Procedure Article (“CP”), §8-201, because the results

of the DNA testing were not favorable to him. The Majority opinion affirms the Circuit

Court judgment without opining on the merits of that decision. It does so by holding that

Mr. Jamison may not seek relief under the post-conviction DNA testing statute because

his conviction resulted from an Alford plea.

       Unlike the Majority opinion, I would not take this occasion to extend the holding

of Yonga – which essentially disqualifies one who has entered a guilty plea from pursuing

a writ of actual innocence – to a defendant convicted as a result of an Alford plea. In an

Alford plea, the defendant maintains his or her innocence, but acknowledges that the

State’s evidence, if believed by the factfinder, would result in the defendant’s conviction.

See North Carolina v. Alford, 400 U.S. 25, 37 (1970).

       An Alford plea results in a criminal conviction, but it does not always carry the

same collateral consequences as an admission of guilt.1 For example, in Rudman v. State

Board of Physicians, 414 Md. 243 (2010), a physician accused of assaulting a patient had

       1
        The Majority cites Bishop v. State, 417 Md. 1, 20 (2010) for the proposition that
an Alford plea is the “functional equivalent” of a guilty plea. In holding that an Alford
plea waives challenges to adverse rulings on pretrial motions and procedural objections,
the Bishop opinion quoted that language from an earlier opinion of the Court of Special
Appeals that held only that, like a guilty plea, an Alford plea waives a direct appeal in a
criminal case. See Ward v. State, 83 Md. App. 474, 480 (1990). Neither Bishop nor
Ward drew any conclusions about collateral consequences. Indeed, more recently, in
Jackson v. State, 448 Md. 387, 391 n.3 (2016), this Court stated that a defendant who
enters an Alford plea while contesting the admissibility of evidence “retains appellate
review of the suppression decision.”
entered an Alford plea and was convicted of second degree assault. The question before

this Court was whether the Board of Physicians had properly revoked the physician’s

license, without a hearing, under an expedited procedure for licensees convicted of

crimes involving moral turpitude. This Court concluded “because Petitioner has not been

found guilty of a crime of moral turpitude and has never admitted that he has committed

any criminal offense, the Board does not have authority to revoke [his] license without

giving him the opportunity for a hearing …” 414 Md. at 262.

         As with a guilty plea, there is no trial when a defendant enters an Alford plea.

That may make the assessment of prejudice – i.e., whether there is a “substantial

possibility … that the petitioner would not have been convicted if the DNA testing results

had been known”2 – more difficult, but not impossible. As the Supreme Court has noted,

the assessment of a claim of ineffective assistance of counsel for failure to discover

exculpatory evidence in a case involving a guilty plea “will depend in large part on a

prediction whether the evidence likely would have changed the outcome of a trial.” Hill

v. Lockhart, 474 U.S. 52, 59 (1985). A court that is capable of assessing the effect of

evidence on the outcome of a hypothetical trial for one purpose can surely do it for the

other.

         In sum, I would affirm the Circuit Court judgment, but not for the reason adopted

by the Majority opinion.

         Chief Judge Barbera advises that she joins this opinion.


         2
             CP §8-201(i)(2)(iii).

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