Trendon Washington v. State of Maryland, No. 5, September Term, 2016, Opinion by
Adkins, J.

MARYLAND CODE (2001, 2008 REPL. VOL., 2016 SUPP.), § 8-201 OF THE
CRIMINAL PROCEDURE ARTICLE (“CP”) — STANDING TO FILE PETITION:
Conspiracy to commit murder is not a petition-eligible offense under Maryland’s
postconviction DNA testing statute, Maryland Code (2001, 2008 Repl. Vol., 2016
Supp.), § 8-201 of the Criminal Procedure Article.

MARYLAND CODE (2001, 2008 REPL. VOL., 2016 SUPP.), § 8-201 OF THE
CRIMINAL PROCEDURE ARTICLE (“CP”) — CONSTITUTIONAL LAW —
DUE PROCESS – POSTCONVICTION RELIEF: Maryland’s postconviction DNA
testing statute, Maryland Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the
Criminal Procedure Article, provides sufficient procedural due process such that it does
not violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution
or Article 24 of the Maryland Declaration of Rights.

MARYLAND CODE (2001, 2008 REPL. VOL., 2016 SUPP.), § 8-201 OF THE
CRIMINAL PROCEDURE ARTICLE (“CP”) — CONSTITUTIONAL LAW —
EQUAL PROTECTION: Maryland’s postconviction DNA testing statute, Maryland
Code (2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article, does
not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution or Article 24 of the Maryland Declaration of Rights because individuals
convicted of conspiracy to commit murder are not similarly situated to individuals
convicted of first-degree and attempted first-degree murder for the purpose of the statute.
Even if persons convicted of conspiracy were similarly situated, the State has a rational
basis for distinguishing between these groups.
Circuit Court for Baltimore City
Case No.: 107164029
Argued: September 1, 2016


                                   IN THE COURT OF APPEALS

                                        OF MARYLAND



                                              No. 5

                                      September Term, 2016



                                    TRENDON WASHINGTON

                                                v.

                                     STATE OF MARYLAND




                                       Barbera, C.J.
                                       Greene
                                       Adkins
                                       McDonald
                                       Watts
                                       Hotten
                                       Getty,

                                             JJ.



                                      Opinion by Adkins, J.



                                       Filed: November 1, 2016
       Appellant Trendon Washington is serving a life sentence for conspiracy to commit

murder. He filed a petition for postconviction DNA testing pursuant to Maryland Code

(2001, 2008 Repl. Vol., 2016 Supp.), § 8-201 of the Criminal Procedure Article (“CP”).1

The postconviction court dismissed his petition because he was not convicted of a crime

of violence and is therefore not eligible for postconviction relief under the statute. We

affirm the postconviction court’s dismissal of Washington’s petition, and hold that a person

convicted of conspiracy to commit murder is not eligible to file a petition for

postconviction DNA testing under CP § 8-201(b). We further hold that Maryland’s

postconviction DNA testing statute does not violate due process or equal protection rights

accorded by the U.S. Constitution or the Maryland Declaration of Rights.

                        FACTS AND LEGAL PROCEEDINGS

       Washington was charged with conspiracy to commit murder, first-degree murder,

second-degree murder, and handgun offenses in connection with the death of Ricardo

Paige. On March 20, 2007, Ricardo Paige was found dead at 502 East 43 rd Street in

Baltimore, Maryland. He had been shot six times. The police recovered two .45 caliber

shell casings from the scene along with a bloody broom and dust pan that appeared to have

been used to sweep up spent shell casings. The broom and the dust pan tested positive for

blood, but the items were not tested for DNA. On January 21, 2009, a jury convicted



       1
         Although Washington filed his petition two months before it went into effect, at
the State’s suggestion, and without objection by Washington, the postconviction court
applied the October 1, 2015 version of the statute. The bulk of Washington’s arguments
are based on the 2015 version of the statute, but, as addressed infra, he advances one
argument based on the earlier version.
Washington of conspiracy to commit murder but could not reach a unanimous verdict on

the remaining charges. Washington was sentenced to life imprisonment.

       On August 6, 2015, Washington filed a petition, pro se, in the Circuit Court for

Baltimore City requesting postconviction DNA testing of the broom and dust pan. The

Circuit Court dismissed the petition without a hearing on December 14, 2015 because it

concluded that Washington did not have standing to file a petition under CP § 8-201(b).2

The court reasoned that in order to qualify for relief under this statute, a person must be

convicted of a crime of violence under Maryland Code (1957, 2012 Repl. Vol.), § 14-101

of the Criminal Law Article (“CR”). Because Washington had been convicted only of

conspiracy to commit murder, which is not defined as a crime of violence in CR § 14-101,

he lacked standing to pursue the remedies under the statute.

       Washington noted a direct appeal to this Court pursuant to CP § 8-201(k)(6).

Arrington v. State, 411 Md. 524, 544 (2009). He presented the following questions for our

review:

              1. Whether a person convicted of conspiracy to commit first
                 degree murder and sentenced to incarceration for life is
                 eligible to file a petition for postconviction DNA testing of
                 scientific identification evidence pursuant to § 8-201 of the
                 Criminal Procedure Article?

              2. Whether a person convicted of conspiracy to murder and
                 sentenced to incarceration for life has a residual, core
                 liberty interest protected by the [Due Process Clause] of the
                 Fourteenth Amendment and Article 24 that in limited


       2
         Maryland Rule 4-709 governs whether a hearing is required. It provides, in
relevant part: “The court shall deny the petition without a hearing if it finds that: (A) the
petitioner has no standing to request DNA testing[.]” Md. Rule 4-709(b)(1) (2016).

                                             2
                 circumstances gives rise to a procedural right to access
                 forensic evidence the State previously produced at trial?

              3. Whether § 8-201 of the Criminal Procedure Article, which
                 permits only those convicted of murder to petition for
                 postconviction DNA testing, violates the [Equal Protection
                 Clause] of the Fourteenth Amendment and Article 24 as
                 applied to a person sentenced to life for conspiracy to
                 murder?

(Emphasis in original.)

                               STANDARD OF REVIEW

       In this appeal we are tasked with interpreting Maryland’s postconviction DNA

testing statute to determine if individuals convicted of conspiracy to commit murder are

eligible to file a petition for testing. This is a question of law, which we review without

deference to the postconviction court. Arrington, 411 Md. at 551 (citation omitted).

                                      DISCUSSION

       Maryland’s postconviction DNA testing statute, CP § 8-201, grants individuals

convicted of certain crimes the right to file a petition requesting postconviction DNA

testing. CP § 8-201(b). In 2015, the General Assembly amended the statute to enlarge the

class of individuals eligible to file a petition to all those convicted of crimes of violence

defined in CR § 14-101.3 Previously, only individuals convicted of first-degree murder,

second-degree murder, manslaughter, rape in the first and second degree, and first- and




       3
        The 2015 amendment expanded the list of petition-eligible crimes from 7 to 39.
Compare Md. Code (2001, 2008 Repl. Vol.), § 8-201(b) of the Criminal Procedure Article
(“CP”), with Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), CP § 8-201(b).

                                             3
second-degree sex offense were eligible to file such a petition. Md. Code (2001, 2008

Repl. Vol.), CP § 8-201(b).

       At issue is whether individuals convicted of conspiracy to commit murder are

eligible to file a petition for postconviction DNA testing under the recently-expanded list

of petition-eligible crimes.     Washington argues that, as an individual convicted of

conspiracy to commit murder and sentenced to life imprisonment, he is eligible to file a

petition based upon a reading of CP § 8-201(b) in the context of the larger statutory scheme

and purpose. Washington also asserts that denying him access to DNA evidence for testing

violates his due process rights under the U.S. Constitution and the Maryland Declaration

of Rights because it “constitutes a deprivation of his residual, core liberty interest.” Finally,

Washington contends that denying him access to DNA evidence violates the Equal

Protection Clause of the Fourteenth Amendment of the U.S. Constitution and the Maryland

Declaration of Rights because the State has no rational basis for distinguishing him, an

individual sentenced to life imprisonment, from individuals convicted of first-degree

murder or attempted first-degree murder who received the same sentence.

       To the contrary, the State urges us to affirm the dismissal of Washington’s petition

for lack of standing. Postconviction petitions for DNA testing of scientific identification

evidence, it says, are authorized by CP § 8-201(b), and are limited to those convicted of a

crime of violence as defined in CR § 14-101. The State points out that conspiracy to

commit murder is simply not listed as a crime of violence in CR § 14-101. Therefore,

Washington, who was convicted of conspiracy to commit murder, lacks standing to file a

petition. As to due process, the State avers that the procedures Maryland has in place for


                                               4
such testing go above and beyond the constitutional procedural requirements. Finally, the

State asserts that denying access to postconviction DNA testing is not a violation of the

Equal Protection Clause of the U.S. Constitution or Article 24 of the Maryland Declaration

of Rights because Washington is not similarly situated to individuals convicted of

consummated crimes of violence and, even if he is, the State has a rational basis for creating

this distinction.

                     Eligibility to File a Petition Under CP § 8-201

       The current text of CP § 8-201(b) provides:

               (b) Notwithstanding any other law governing postconviction
               relief, a person who is convicted of a crime of violence under
               § 14-101 of the Criminal Law Article may file a petition:

                     (1) for DNA testing of scientific identification evidence
                         that the State possesses 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.

(Emphasis added.)

       Section 14-101 of the Criminal Law Article, which CP § 8-201(b) incorporates to

define those eligible to file DNA testing petitions, lists crimes of violence subject to

mandatory minimum sentencing. Relevant for our purposes, CR §§ 14-101(a)(7) and (17)

define murder and attempted murder as crimes of violence.4


       4
       Maryland Code (1957, 2012 Repl. Vol.), § 14-101(a) of the Criminal Law Article
(“CR”) provides:


                                              5
(a) In this section, “crime of violence” means:
        (1) abduction;
        (2) arson in the first degree;
        (3) kidnapping;
        (4) manslaughter, except involuntary manslaughter;
        (5) mayhem;
        (6) maiming, as previously proscribed under former
             Article 27, §§ 385 and 386 of the Code;
        (7) murder;
        (8) rape;
        (9) robbery under § 3-402 or § 3-403 of this article;
        (10) carjacking;
        (11) armed carjacking;
        (12) sexual offense in the first degree;
        (13) sexual offense in the second degree;
        (14) use of a handgun in the commission of a felony or
              other crime of violence;
        (15) child abuse in the first degree under § 3-601 of this
              article;
        (16) sexual abuse of a minor under § 3-602 of this article
              if:
              (i) the victim is under the age of 13 years and the
                   offender is an adult at the time of the offense;
                   and
              (ii) the offense involved:
                   1. vaginal intercourse, as defined in § 3-301 of
                      this article;
                   2. a sexual act, as defined in § 3-301 of this
                      article;
                   3. an act in which a part of the offender’s body
                      penetrates, however slightly, into the
                      victim’s genital opening or anus; or
                   4. the intentional touching, not through the
                      clothing, of the victim’s or the offender’s
                      genital, anal, or other intimate area for
                      sexual arousal, gratification, or abuse;
        (17) an attempt to commit any of the crimes described
              in items (1) through (16) of this subsection;
        (18) continuing course of conduct with a child
              under § 3-315 of this article;
        (19) assault in the first degree;
        (20) assault with intent to murder;

                                6
       We employ Maryland’s long-settled rules of statutory construction to guide our

interpretation of CP § 8-201. “The cardinal rule of statutory construction is to ascertain

and effectuate the intent of the Legislature.” Blake v. State, 395 Md. 213, 224 (2006).

First, we examine the plain language of the statute to ascertain the Legislature’s intent. Id.

When examining the plain language, “[w]e neither add nor delete language so as to reflect

an intent not evidenced in the plain and unambiguous language of the statute, and we do

not construe a statute with ‘forced or subtle interpretations’ that limit or extend its

application.” Willis v. Montgomery Cty., 415 Md. 523, 537 (2010) (citation omitted). We

“examine the language ‘within the context of the statutory scheme to which it belongs,

considering the purpose, aim, or policy of the Legislature in enacting the statute.’” Id.

(citation omitted). To confirm our plain language reading, we may also consider a statute’s

legislative history to determine legislative intent. Moore v. State, 388 Md. 623, 635 n.4

(2005) (collecting cases). If the language of the statute is clear and unambiguous, we

presume the Legislature meant what it said. Willis, 415 Md. at 536. If the language of the

statute is ambiguous, we seek to ascertain the Legislature’s intent from the legislative

history, case law, and statutory purpose to resolve the ambiguity. Blake, 395 Md. at 224.

       As the State argues, CP § 8-201(b) permits only “a person who is convicted of a

crime of violence under § 14-101 of the Criminal Law Article” to file a petition.


                     (21) assault with intent to rape;
                     (22) assault with intent to rob;
                     (23) assault with intent to commit a sexual offense in
                          the first degree; and
                     (24) assault with intent to commit a sexual offense in
                          the second degree.

                                              7
Examination of the language of CR § 14-101 confirms this reading of CP § 8-201(b).

Conspiracy has never been included on the CR § 14-101 list. This omission does not appear

to be an oversight, moreover, considering that CR § 14-101 does expressly include one

type of inchoate crime—attempt. CR § 14-101(a) (“In this section, ‘crime of violence’

means: . . . (17) an attempt to commit any of the crimes described in items (1) through

(16) of this subsection[.]” (emphasis added)).

       This reading of CP § 8-201(b) is further supported by examining other statutes that

incorporate the CR § 14-101 definition of crimes of violence and expressly add

“conspiracy” to commit those crimes as a separate offense. For example, Maryland’s

witness-tampering statutes impose a criminal penalty for inducing false testimony or

retaliating against a witness who is offering testimony related to “the commission of a

crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to

commit such a crime.” Md. Code (1957, 2012 Repl. Vol.), CR §§ 9-302(c)(2), 9-305(c)(2)

(emphasis added); Md. Code (1957, 2012 Repl. Vol., 2016 Supp.), CR § 9-303(c)(2)

(emphasis added). Similarly, Maryland Code (1977, 2013 Repl. Vol.), § 10-407(c)(2)(iii)

of the Courts and Judicial Proceedings Article (“CJP”), provides an exception to

Maryland’s statute criminalizing wiretapping5 if, “All parties to the communication were

co-conspirators in a crime of violence as defined in [CR] § 14-101.” (Emphasis added.)

These provisions show that the Legislature knows how to include conspiracy to commit

crimes of violence in statutory provisions when it so desires. The Legislature did not do


       5
        Md. Code (1957, 2013 Repl. Vol., 2016 Supp.), § 10-402 Courts and Judicial
Proceedings Article (“CJP”).

                                             8
so in CP § 8-201(b). See Stoddard v. State, 395 Md. 653, 661 (2006) (“[T]he Legislature

is presumed to have meant what it said and said what it meant.” (citation omitted)).

Consequently, based on the plain and unambiguous language of CP § 8-201(b), we

conclude that the Legislature did not intend for individuals convicted of conspiracy to

commit the crimes of violence enumerated in CR § 14-101 to have standing to file a

petition for postconviction DNA testing.

       Although Washington concedes that CP § 8-201(b) is unambiguous and by its plain

language does not include conspiracy crimes, he urges us to find ambiguity in the broader

statutory scheme. In support of his argument, Washington points to CP § 8-201(j), which,

he contends, imposes a duty on the State to preserve evidence for DNA testing for the

duration of his life sentence. He argues that this “duty to preserve controls the ability to

test.” Washington also invokes CP § 8-201’s legislative history and remedial purpose,

which, he argues, demonstrate the General Assembly’s commitment to expanding access

to postconviction DNA testing and support his broad reading of CP § 8-201(b). He

contends that in light of the State’s duty to preserve the DNA evidence in his case and the

remedial purpose of the statute, denying him access to the evidence for testing produces an

absurd result. We disagree.

       Even if we accepted Washington’s argument that a duty to preserve triggers a right

to petition, which we do not, no CP § 8-201 duty to preserve DNA evidence postconviction

exists in this case whether CP § 8-201(j) is read in isolation or as part of the statutory

scheme.   CP § 8-201(j), which governs the State’s duty to preserve DNA evidence

postconviction,    requires    the   State    to    preserve    “scientific   identification


                                             9
evidence . . . secured in connection with a violation of § 2-201, § 2-204, § 2-207, or § 3-

303 through § 3-306 of the Criminal Law Article.” These sections are, respectively, the

statutory provisions defining first-degree murder, second-degree murder, manslaughter,

rape in the first and second degree, and first- and second-degree sex offense. Conspiracy

is not included.

        At oral argument, Washington argued that the phrase “in connection with a violation

of [CR] § 2-201” in CP § 8-201(j) encompasses conspiracy to commit murder because it

requires the State to preserve DNA evidence used in the investigation and prosecution of

his underlying first-degree murder charge.6 In essence, Washington argues that “violation”

means “charged,” and his first-degree murder charge triggered the State’s CP § 8-201 duty

to preserve DNA evidence in his case. And this duty to preserve, Washington contends,

grants him a corresponding ability to test the evidence. Washington’s argument misses the

mark.

        The term “violation” does not include merely being charged with a crime. A

“violation” of a statutory provision in this context quite plainly means taking action




        6
         In his briefs, Washington advanced an argument based on the language of CP § 8-
201(b) prior to the 2015 amendment, which defined the eligible class of persons as
including those “convicted of a violation of § 2-201 . . . .” (murder in the first degree). He
argued that because the mens rea and maximum allowable sentence for first-degree murder
are the same as conspiracy to commit murder, CP § 8-201(b) encompassed conspiracy to
commit murder. This argument fails for two reasons. As we said above, “violation” plainly
means failure to comply with a statute’s provisions. So, being charged with murder, but
not convicted, did not trigger the right to petition for relief under CP § 8-201. Second, as
with the current version of CP § 8-201(b), the Legislature failed to include “conspiracy” in
the earlier version of CP § 8-201(b), and we assume such omission was intentional.

                                             10
prohibited by that statute.7 Thus, to give rise to CP § 8-201’s duty to preserve, Washington

had to be convicted of murder. CR § 2-201 defines acts that constitute murder in the first

degree, deems the crime a felony, and prescribes penalties for violating the provision—life

imprisonment or life without the possibility of parole.8 CR § 2-201 makes no mention of


       7
        Black’s Law Dictionary defines “violation” as “[a]n infraction or breach of the
law.” Violation, Black’s Law Dictionary (10th ed. 2014).
       8
         Maryland Code, (1957, 2012 Repl. Vol., 2016 Supp.), § 2-201 of the Criminal Law
Article provides:

              (a) A murder is in the first degree if it is:
                     (1) a deliberate, premeditated, and willful killing;
                     (2) committed by lying in wait;
                     (3) committed by poison; or
                     (4) committed in the perpetration of or an attempt to
                          perpetrate:
                           (i) arson in the first degree;
                           (ii) burning a barn, stable, tobacco house,
                                warehouse, or other outbuilding that:
                                1. is not parcel to a dwelling; and
                                2. contains cattle, goods, wares, merchandise,
                                   horses, grain, hay, or tobacco;
                           (iii) burglary in the first, second, or third degree;
                           (iv) carjacking or armed carjacking;
                           (v) escape in the first degree from a State
                                correctional facility or a local correctional
                                facility;
                           (vi) kidnapping under § 3-502 or § 3-503(a)(2) of
                                 this article;
                           (vii) mayhem;
                           (viii) rape;
                           (ix) robbery under § 3-402 or § 3-403 of this
                                  article;
                           (x) sexual offense in the first or second degree;
                           (xi) sodomy; or
                           (xii) a violation of § 4-503 of this article
                                  concerning destructive devices.


                                             11
conspiracy to commit murder, which, by contrast, is a common-law misdemeanor that is

not defined by statute.9 Johnson v. State, 362 Md. 525, 528 (2001). Washington was only

convicted of conspiracy to commit murder, not of murder itself. Thus, the State’s duty to

preserve DNA evidence postconviction under CP § 8-201(j) was never implicated.

       Washington also points to CP § 8-201(a)(5)(i)’s definition of the term, “scientific

identification evidence,” to support his argument. Scientific identification evidence is

defined, in relevant part, as evidence that “is related to an investigation or prosecution that

resulted in a judgment of conviction.” CP § 8-201(a)(5)(i). Washington emphasizes the

phrase “related to an investigation and prosecution” of first-degree murder, which, he

asserts, creates a pre-conviction duty to preserve. Certainly, the State must preserve DNA

evidence while the investigation and trial are pending—some of it may be exculpatory.

But CP § 8-201(a)(5)(i), which kicks in upon conviction, does not accord Washington the

relief he seeks. As indicated above, the State had no duty under this section to preserve

DNA evidence after the trial because the jury failed to convict him of murder. Moreover,


              (b) Penalty. — (1) A person who commits a murder in the first
              degree is guilty of a felony and on conviction shall be
              sentenced to:
                           (i) imprisonment for life without the possibility of
                                parole; or
                           (ii) imprisonment for life.
                      (2) Unless a sentence of imprisonment for life without
              the possibility of parole is imposed in compliance with § 2-203
              of this subtitle and § 2-304 of this title, the sentence shall be
              imprisonment for life.
       9
        The Legislature has limited by statute the maximum punishment for a conspiracy
crime to “the maximum punishment for the crime that the person conspired to commit.”
Md. Code (1957, 2008 Repl. Vol.), CR § 1-202.

                                              12
this definition of scientific identification evidence merely reiterates CP § 8-201(j)’s

requirement of a conviction before the State has a duty to preserve. CP § 8-201(j) by its

plain language requires the State to preserve all DNA evidence in cases where there has

been a first-degree murder conviction, not a conspiracy conviction.

       Although the postconviction DNA testing statute is remedial, Gregg v. State, 409

Md. 698, 715 (2009), and must be construed liberally, this does not grant us license to

redraft the statute “beyond its clear meaning and the legislature’s intent.” Emps.’ Ret. Sys.

of City of Balt. v. Dorsey, 430 Md. 100, 113 (2013) (citation omitted). Therefore, we do

not “add provisions or tailor existing ones to change the mandatory nature of the statute’s

language in order to favor the [petitioner].” Id. (citation omitted). As discussed previously,

the Legislature knows how to draft legislation that includes conspiracy along with statutory

offenses. It has declined to do so here.10

                                    Due Process Clause

       Washington argues that he has a procedural due process right to test the evidence

used to convict him for DNA under both the Fourteenth Amendment of the U.S.




       10
          Washington asserted for the first time at oral argument that he should have access
to the DNA evidence the State has the duty to preserve in his co-defendant’s case. In
Washington’s case, his co-defendant was convicted of first-degree murder and conspiracy
to commit murder, but Washington was only convicted of conspiracy to commit murder.
Washington argues, in essence, that the State’s duty to preserve DNA evidence in his co-
defendant’s case grants him the right to petition for postconviction testing of this evidence
in his own case. We disagree. The mere obligation to preserve evidence relating to a
murder conviction of another person does not, without legislative authorization, entitle
Washington to petition under CP § 8-201(b). He has no statutory or common law right to
such relief, and, as we explain infra, no constitutional right.

                                             13
Constitution and Article 24 of the Maryland Declaration of Rights.11 Under the Fourteenth

Amendment, “No State shall . . . deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. This requires states to follow certain

procedures before restricting or taking away an individual’s liberty interest. Dist. Atty’s

Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67 (2009). The Supreme Court

has recognized a limited liberty interest in postconviction relief when a state provides

procedures for convicted defendants to demonstrate their innocence with new evidence.

Id. at 68.   Relying on Osborne, Washington argues that by denying him access to

postconviction DNA testing, the State has unconstitutionally denied him the opportunity

to pursue postconviction relief under Maryland law.

       The Supreme Court has held that criminal defendants who have been convicted have

“only a limited interest in postconviction relief” based on newly discovered evidence

because they have already received a fair trial. Id. at 69. Once the government has proven

its case beyond a reasonable doubt, “the criminal defendant has been constitutionally

deprived of his liberty.” Id. (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458,

464 (1981)). “The State accordingly has more flexibility in deciding what procedures are



       11
          Washington suggests that he is also asserting a substantive due process right to
postconviction DNA testing. The Supreme Court has squarely rejected that argument.
Dist. Atty’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009). In
Osborne, the Court noted that “[e]stablishing a freestanding right to access DNA evidence
for testing would force [courts] to act as policymakers,” and concluded that determining
who can access DNA evidence postconviction is a decision best left to the states. Id. at
73–74. Notably, the Court expressed concern that if it recognized a substantive due process
right to postconviction DNA testing it might “soon have to decide if there is a constitutional
obligation to preserve forensic evidence that might later be tested.” Id. at 74.

                                             14
needed in the context of postconviction relief.” Id. Therefore, the State only fails to

provide adequate process under the Due Process Clause of the Fourteenth Amendment if

its procedures for postconviction relief “offend[ ] some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental.” Id. (citation

omitted). A state’s procedures for postconviction relief can also violate the Due Process

Clause if they “transgress[ ] any recognized principle of fundamental fairness in operation.”

Id. (quoting Medina v. California, 505 U.S. 437, 448 (1992)). Washington, however, bears

the burden of demonstrating the procedural inadequacy of Maryland’s postconviction DNA

testing statute. See id. at 71. In determining whether the statute meets this standard, it is

helpful to review how courts have applied it to other states’ postconviction relief

procedures.

       In Osborne, the Supreme Court upheld Alaska’s procedures for postconviction relief

under this standard. Id. at 69–70. An Alaska statute provided for relief if the defendant

made a “clear and convincing” showing of new evidence—including new DNA analysis—

establishing innocence. Id. at 64 (quoting Alaska Stat. § 12.72.020(b)(2) (2004)). The new

evidence must have been newly available, diligently pursued, and sufficiently material for

the court to consider granting relief. Id. at 70 (citing § 12.72.020(b)(2)). Additionally,

Alaska courts recognized a right to DNA testing under the state constitution when (1) a

defendant’s conviction rested primarily on eyewitness identification, (2) there was

demonstrable doubt as to the defendant’s guilt, and (3) DNA evidence “would likely be

conclusive” on the issue. Id. at 65 (quoting Osborne v. State, 110 P.3d 986, 995 (Alaska

Ct. App. 2005)). Because these procedures exempted petitioners from otherwise applicable


                                             15
time limits for filing for relief, provided for discovery in postconviction proceedings, and

were “similar to those provided for DNA evidence by federal law and the law of other

[s]tates, see, e.g., 18 U.S.C. § 3600(a),” the Supreme Court held that they were “not

inconsistent with the ‘traditions and conscience of our people’ or with ‘any recognized

principle of fundamental fairness.’” Osborne, 557 U.S. at 70 (citation omitted).

       Similarly, in McKithen v. Brown, 626 F.3d 143 (2d Cir. 2010), the United States

Court of Appeals for the Second Circuit held that New York’s postconviction relief statute

was adequate to protect a convicted criminal defendant’s limited liberty interest in

demonstrating his innocence with new evidence. Id. at 154. To obtain relief under New

York’s statute, a defendant must show that had the DNA testing been performed for use at

trial, “there exists a reasonable probability that the verdict would have been more favorable

to the [petitioner].” Id. at 153 (quoting N.Y. Crim. Proc. Law § 440.30(1–a(a)) (1994)).

Comparing New York’s statute to Alaska’s, the court reasoned that this standard was less

stringent than Alaska’s requirement that DNA evidence would “clearly and convincingly”

or “conclusively” establish the petitioner’s innocence. Id. at 153–54. Therefore, it

concluded, New York’s statute neither offended principles of justice nor was

fundamentally unfair. Id.

       In Morrison v. Peterson, 809 F.3d 1059 (9th Cir. 2015), the United States Court of

Appeals for the Ninth Circuit upheld two aspects of California’s postconviction DNA

statute under the Osborne standard. Id. at 1069. It held that neither the statute’s reasonable

probability requirement—like New York’s—nor its chain of custody provision violated the

Due Process Clause. Id. The court rejected the petitioner’s argument that California’s


                                             16
reasonable probability requirement was more stringent than Alaska’s requirement that the

new evidence be material or “conclusive.” Id. at 1068–69. California’s postconviction

DNA statute also requires petitioners to show that “[t]he evidence to be tested has been

subject to a chain of custody sufficient to establish it has not been substituted, tampered

with, replaced or altered in any material aspect.” Id. at 1069 (quoting Cal. Penal Code §

1405(f)(2) (West 2005)). Because a petitioner might make a prima facie showing of lack

of tampering by pointing to the State’s duty to preserve all biological evidence related to a

criminal case, the court concluded that this requirement did not “transgress[ ] any

recognized principle of fundamental fairness in operation.” Id. (quoting Osborne, 557

U.S. at 69).

       The United States Court of Appeals for the Eleventh Circuit used the same

comparative approach in Cunningham v. District Attorney’s Office for Escambia County,

592 F.3d 1237 (11th Cir. 2010), to uphold Alabama’s postconviction DNA testing statute

under the Due Process Clause. Id. at 1263 (“Alabama’s procedures pass muster if they

compare favorably with Alaska’s.”). The court observed that both Alabama and Alaska

allow a defendant to initiate postconviction proceedings when he can show newly

discovered material facts that require that his conviction be vacated. Id. Furthermore, it

found that in one respect Alabama’s procedures were more petitioner-friendly than

Alaska’s. To obtain a new trial, Alaska requires the petitioner to demonstrate innocence

by clear and convincing evidence, while Alabama only requires a preponderance of the

evidence. Id. at 1263–64. Therefore, the court concluded that the statute’s procedures met

the constitutional standard.


                                             17
       Maryland offers individuals convicted of designated crimes a robust process by

which to seek postconviction DNA testing, and its procedures overlap significantly with

those found to be constitutionally adequate by other courts. Like New York’s statute,

Maryland’s postconviction DNA law directs courts to order DNA testing if “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.” CP § 8-

201(d)(1)(i) (emphasis added). Like the Alaska statute at issue in Osborne, there is no time

period within which a petitioner must file a petition for postconviction testing. Compare

CP § 8-201(b), with Alaska Stat. § 12.72.020. Furthermore, CP § 8-201 does not require

petitioners to swear under oath that they are actually innocent, which makes relief more

accessible than the federal DNA postconviction statute. Compare CP § 8-201, with 18

U.S.C. § 3600(a)(1) (2012). The statute also gives courts the broad authority to grant a

new trial due to postconviction DNA test results whenever doing so is “in the interest of

justice.” CP § 8-201(i)(3). Lastly, the statute gives petitioners the right of direct appeal to

this Court. CP § 8-201(k)(6). These procedures are neither offensive to our traditional

principles of justice nor fundamentally unfair.

       Although no court has specifically addressed a state’s limitation on access to DNA

testing based on the petitioner’s type of crime under the Due Process Clause, we do not

consider this aspect of the Maryland statute to deprive Washington of due process.12 The


       12
          Including Maryland, 27 states allow only individuals convicted of certain crimes
to access postconviction DNA testing. See, e.g., Alaska Stat. § 12.73.010 (2014) (limiting
petitions for testing to individuals “convicted of a felony against a person”); S.C. Code
Ann. § 17-28-30 (2014) (limiting petitions for testing to 24 enumerated crimes, including

                                              18
Legislature has made a policy determination as to when the severity of an individual’s

conviction and the relevance of new DNA evidence outweighs the administrative costs of

preserving DNA evidence and producing it on demand. This Court sees no reason to

disturb that determination, even if the law allowed us to do so.

       In making our decision, we bear in mind that, in addition to relief available under

the Maryland Uniform Postconviction Procedure Act, Md. Code (2001, 2008 Repl. Vol.,

2013 Supp.) §§ 7-101 through 7-109, persons convicted of “a crime triable in circuit court”

may also at any time, file a “petition for writ of actual innocence” if the person claims that

there is newly discovered evidence that “creates a substantial or significant possibility that

the result may have been different.” CP § 8-301(a)(1) (2009, 2008 Repl. Vol., 2016 Supp.).

Additionally, Washington had the opportunity to obtain DNA testing of the evidence

against him at the time of his trial, and he failed to do so. Therefore, we decline to hold

that Maryland’s postconviction DNA testing procedures are constitutionally inadequate to

protect Washington’s limited liberty interest in postconviction relief.




murder, criminal sexual conduct, and armed robbery); Ky. Rev. Stat. Ann. § 422.285
(LexisNexis 2005, 2016 Supp.) (limiting petitions for testing to individuals convicted of a
capital offense, a Class A or B felony, or 10 other enumerated crimes); see also National
Conference of State Legislatures, Post Conviction DNA Testing (2013),
http://www.ncsl.org/Documents/cj/PostConvictionDNATesting.pdf
[https://perma.cc/3DED-Q3E9].

                                             19
       We also decline to hold that Article 24 of the Maryland Declaration of Rights13

grants individuals who have been convicted of a crime a due process right to DNA testing.

Generally, we have interpreted Article 24 to apply “in like manner and to the same extent

as the Fourteenth Amendment of the Federal Constitution.” Attorney General v. Waldron,

289 Md. 683, 704 (1981) (citation omitted). Indeed, when applying Article 24, “decisions

of the Supreme Court on the Fourteenth Amendment are practically direct authorities.”14

Id. at 705 (citation omitted). We have only interpreted Article 24 more broadly than the

Fourteenth Amendment when “fundamental fairness demanded that we do so.” Borchardt

v. State, 367 Md. 91, 175 (2001) (Raker, J., dissenting); see, e.g., Koshko v. Haining, 398

Md. 404, 444 (2007) (grandparent visitation statute violated Maryland Constitution

regardless of Supreme Court case law); Hook v. State, 315 Md. 25, 43–44 (1989)

(permitting the prosecution to nol pros a lesser included offense was “fundamentally unfair

under Maryland common law”). We decline to do so here. Accordingly, we hold that CP

§ 8-201 does not violate Article 24 when it denies individuals convicted of conspiracy to

commit murder access to postconviction DNA testing.




       13
            Article 24 of the Maryland Declaration of Rights provides:

                       That no man ought to be taken or imprisoned or
                disseized of his freehold, liberties or privileges, or outlawed,
                or exiled or deprived of his life, liberty or property, but by the
                judgment of his peers, or by the Law of the land.
       14
          Applying this rule, under Osborne, Article 24 also does not give rise to a
substantive due process right to postconviction DNA testing.

                                               20
                                     Equal Protection Clause

       Washington next argues that Maryland’s postconviction DNA testing statute

violates the Equal Protection Clause of the Fourteenth Amendment and Article 24 of the

Maryland Declaration of Rights. Under the Equal Protection Clause, “No State shall . . .

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. This is “essentially a direction that all persons similarly situated should

be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(citation omitted). Washington contends that because the State has granted those convicted

of first-degree murder and attempted first-degree murder the right to petition for

postconviction DNA testing, it denies him the equal protection of the law when it excludes

a person convicted of conspiracy to commit murder who has been sentenced to life from

that remedy. We disagree.

       Because Washington’s claim neither implicates a fundamental right nor a suspect

class, we apply a rational basis standard in evaluating the State’s classification.15 See Plyler



       15
          In Osborne, the Supreme Court rejected the existence of a substantive due process
right to access postconviction DNA testing. Dist. Atty’s Office for the Third Judicial Dist.
v. Osborne, 557 U.S. 52, 72 (2009). As a result, access to this relief also does not constitute
a fundamental right under the Constitution. In addition to those explicitly listed in the
Constitution, the Supreme Court has only recognized the following rights as fundamental
under the Due Process Clause: the right to marry, the right to have children and direct their
upbringing, the right to marital privacy, the right to use contraception, the right to bodily
integrity, and the right to abortion. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
The Supreme Court has also strongly suggested that there is a fundamental due process
right to refuse lifesaving medical treatment. Cruzan ex. rel. Cruzan v. Dir., Missouri Dep’t
of Health, 497 U.S. 261, 278 (1990) (“The principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions.”).

                                              21
v. Doe, 457 U.S. 202, 216–17 (1982); Neifert v. Dep’t of Env’t, 395 Md. 486, 505 (2006).

To prove an equal protection clause violation under this standard, Washington must

demonstrate that (1) the State treated him differently from a similarly situated individual,

and (2) the distinction was not rationally related to any legitimate state interest. Neifert,

395 Md. at 506.

       Washington argues that individuals convicted of first-degree murder or attempted

first-degree murder are similarly situated to him because he is subject to the same sentence

of life imprisonment. Washington relies on the Kansas Supreme Court decision State v.

Cheeks, 310 P.3d 346 (Kan. 2013), for this assertion. In Cheeks, the court held that the

state’s postconviction DNA testing statute violated the Equal Protection Clause because it

allowed individuals convicted of first-degree murder the opportunity to petition for

postconviction DNA testing, but denied that opportunity to those convicted of second-

degree murder who were sentenced to the same maximum of 15 years to life. Id. at 354.

The court reasoned that due to the identical length of their sentences, the two groups were

similarly situated for the purpose of the law, which was to “provide an opportunity for

exoneration to innocent individuals convicted of severe crimes.” Id. at 352. The Kansas

court observed that premeditation—the element that distinguishes first-degree from

second-degree murder—was not relevant to the purpose of the statute, so it did not deem

the petitioner differently situated. Id. It explained that “the relevant trait for [its] similarly

situated analysis [was] the sentence imposed by the district court and not the elements of

the crimes.” Id. The court further held that Kansas had no rational basis for its distinction

between these similarly situated individuals. Id. at 354.


                                               22
       Kansas’s postconviction DNA statute is readily distinguishable from Maryland’s.

In Cheeks, Kansas differentiated between individuals convicted of two crimes bearing the

same likelihood that the perpetrator would leave traces of DNA—they both require

physical presence.   This is not so with conspiracy.     Moreover, denying individuals

convicted of second-degree murder access to postconviction DNA testing ran contrary to

the Kansas statute’s stated purpose of providing an opportunity for exoneration to those

convicted of severe crimes, which certainly includes second-degree murder. Maryland’s

statute does not suffer from these flaws. Therefore, we decline to adopt the sentence-

focused approach of the Kansas Supreme Court, and instead focus on the nature of the

crimes at issue.

       Unlike first-degree murder or attempted first-degree murder, Washington’s

conviction of conspiracy to commit murder does not generally require physical presence at

the scene of the underlying crime. Thus, including conspiracy within the postconviction

DNA testing statute would not further the purpose of the law, which is to give access to

DNA testing when DNA evidence is most likely to remedy a wrongful conviction. To

commit conspiracy, the law only requires an individual to have entered into an agreement

with another to commit a crime, and to have actually intended for the crime to be

committed. Salzman v. State, 49 Md. App. 25, 54 (1981). This “meeting of the minds”

could take place in person, over the phone, or through the Internet. See id. (citation

omitted). First-degree murder and attempted first-degree murder, on the other hand, both

require an individual to take physical action—either the murder itself or an overt act

towards the completion of the murder. CR § 2-201; State v. Holmes, 310 Md. 260, 271–


                                           23
72 (1987). Because conspiracy to commit murder does not require physical presence,

individuals convicted of first-degree murder and attempted first-degree murder are not

similarly situated to Washington. As a result, the State does not violate the Equal

Protection Clause when it distinguishes between them.

       Even if Washington were similarly situated to individuals convicted of first-degree

murder or attempted first-degree murder, he still bears the burden of proving that the law

is not rationally related to any legitimate State interest. Heller v. Doe ex. rel. Doe, 509

U.S. 312, 320 (1993) (citation omitted). Under rational basis review, a statute is presumed

constitutional and will be upheld if there is “any reasonably conceivable state of facts that

could provide a rational basis for the classification.” FCC v. Beach Commc’ns Inc., 508

U.S. 307, 313 (1993). Washington advances three reasons to support his argument that the

State has no rational basis for its distinction. We will address each in turn.

       First, Washington claims that the State is under the same obligation to preserve

scientific evidence whether an individual is convicted of conspiracy to commit murder,

attempted first-degree murder, or first-degree murder. This is not so. As discussed supra,

under CP § 8-201(j)(1), the State is only required to preserve scientific evidence when (1)

it “has reason to know [the evidence] contains DNA material” and (2) the defendant is

convicted of first-degree murder, second-degree murder, manslaughter, first-degree rape,

or other sexual offenses. CP § 8-201 imposes no statutory obligation on the State to

preserve DNA evidence related to a conspiracy to commit murder.

       Second, Washington argues that there is no rational basis to give access to

postconviction DNA testing to those convicted of attempted first-degree murder under the


                                             24
statute, while denying access to those convicted of conspiracy to commit murder—another

inchoate crime. Unlike attempted first-degree murder, the crime of conspiracy to commit

murder does not require the defendant to take any physical action towards the commission

of a murder. In fact, there is no requirement that the murder have been attempted at all.

Therefore, it is rational for the State to conclude that DNA evidence related to a crime that

requires some physical presence is more likely to exonerate an individual than DNA

evidence related to a crime that can be completed through a mere conversation.

       Even though some conspirators may leave traces of DNA in the physical location

where they reach mental agreement—meeting in a particular room, for example—that does

not mean the State’s distinction fails under rational basis review. We have explained that

“a classification having some reasonable basis need not be made with mathematical nicety

and may result in some inequality.” Whiting-Turner Contracting Co. v. Coupard, 304 Md.

340, 352 (1985). Additionally, “the Equal Protection Clause does not require that a State

must choose between attacking every aspect of a problem or not attacking the problem at

all.” Dandridge v. Williams, 397 U.S. 471, 486–87 (1970) (citation omitted). Thus, it is

rational for the State to work to remedy wrongful convictions by providing access to

postconviction DNA testing in cases where the testing is most likely to exonerate.

       Lastly, Washington contends that fiscal concerns do not provide a rational basis for

the statutory distinction because the statute requires petitioners to pay for the DNA testing.

This argument is unpersuasive because the State is not focused on the cost of conducting

the DNA testing. Rather, it seeks to avoid the administrative costs of allowing an additional

class of individuals access to the petition process. Allowing those convicted of conspiracy


                                             25
to petition for postconviction DNA testing requires the State to preserve evidence from

these crimes and increases the judicial and prosecutorial resources spent on addressing

petitions under the statute. These fiscal concerns constitute a rational basis for the State to

distinguish among similarly situated individuals. See Dandridge, 397 U.S. at 486–87

(Maryland had a rational basis for its welfare scheme when it decided how to best allocate

limited funds.); Jefferson v. Hackney, 406 U.S. 535, 549 (1972) (“[B]udgetary constraints”

provided a rational basis for distinction between welfare recipients.).

       In short, Washington has failed to negate the State’s rationale for excluding those

convicted of conspiracy to commit murder from access to postconviction DNA testing.

Accordingly, Maryland has a rational basis for allowing individuals convicted of first-

degree murder and attempted first-degree murder to petition for postconviction DNA

testing, while disallowing those convicted of conspiracy to commit murder from doing so.

Therefore, the postconviction DNA testing statute does not violate the Equal Protection

Clause.

       Because the Maryland Constitution does not otherwise have language establishing

equal protection of the laws, it is well settled that Article 24 should be interpreted to

encompass this concept. Waldron, 289 Md. at 704. As with the Due Process Clause,

Article 24 is applied in a “like manner and to the same extent” as the Equal Protection

Clause of the Fourteenth Amendment. Id. (citation omitted). Accordingly, Washington’s

equal protection claim under the Maryland Constitution also fails.




                                              26
                                    CONCLUSION

      Because conspiracy to commit murder is not a petition-eligible offense under

CP § 8-201, Washington does not have standing to request DNA testing. In addition, the

postconviction DNA statute survives Washington’s constitutional challenges. Thus, we

affirm the Circuit Court’s order dismissing Washington’s petition.


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




                                           27
