Lead Opinion
These consolidated cases present us with our first opportunity to interpret Maryland Code (2001, 2008 Repl. Vol., 2010 Supp.), § 8-301 of the Criminal Procedure Article (“C.P.”),
I. Is an order denying a petition for writ of actual innocence without a hearing an automatically appealable order?
II. Did [the trial court] erroneously deny [Douglas’s and Curtis’s] petitions for writ of actual innocence without hearings in violation of § 8-301 of the Criminal Procedure title of the Maryland Code?
For the reasons that follow, we hold that the denial of a petition for writ of actual innocence is an immediately appealable order, regardless of whether the trial court held a hearing before denying the petition. We also hold that C.P. § 8-301 imposes a burden of pleading, such that a petitioner is entitled to a hearing on the merits of the petition, provided the petition sufficiently pleads grounds for relief under the statute, includes a request for a hearing, and complies with the filing requirements of C.P. § 8-301(b). As a consequence of these holdings, we reverse the order denying Douglas’s petition and affirm the order denying Curtis’s petition. We remand Douglas’s case for further proceedings not inconsistent with this opinion.
I. Background
A. Appellant Douglas
Douglas’s underlying convictions — for attempted murder in the second degree, assault, and related handgun offenses— arose out of an altercation on January 26, 1990, between Douglas and several Baltimore City police officers outside a bar in Baltimore City. One police officer saw Douglas sorting through what appeared to be packages of heroin or cocaine, approached
When Douglas turned to flee, the officer noticed a .22 caliber handgun tucked into the small of Douglas’s back. The officer successfully retrieved the weapon. A struggle quickly ensued as other officers arrived on the scene. Douglas then pulled a .380 caliber handgun from his front waistband and fired four shots. One bullet struck an officer in the upper thigh and three other bullets struck another officer: one hit just below the knee, one severed his police radio cord, and one lodged itself in his utility belt.
At trial, Douglas appeared pro se after he knowingly and voluntarily waived his right to an attorney and fired his public defender. Seven police officers involved in the altercation testified. Additionally, two ballistics experts, Joseph Reese and Joseph Kopera, testified regarding the ballistic evidence. Reese testified that he had examined the bullet removed from one officer’s leg and positively identified it as being fired from the .380 caliber handgun taken from Douglas. Kopera testified that he examined the bullet recovered from the other officer’s utility belt several months after the incident and positively identified it as having been fired from the same .380 caliber gun.
The jury convicted Douglas of five counts of attempted second degree murder, five- counts of assault, five counts of using a handgun in the commission of a crime of violence, and two counts of unlawfully wearing, carrying, and transporting a handgun. The Court of Special Appeals, in an unreported per curiam opinion, affirmed Douglas’s convictions. Douglas then filed two postconviction petitions, both of which were denied.
In 2009, Douglas filed pro se in the Circuit Court for Baltimore City the present petition for writ of actual innocence pursuant to then-newly enacted C.P. § 8-301. Douglas alleged that the trial court had committed several errors. He further alleged that there was new evidence regarding the officer-witnesses who testified at his trial. Specifically, he asserted:
[0]n or about September of 1994, Accuser-Witness: Officer Graham Sylvester was involved in another police shooting case ... and ... this time, Officer Sylvester’ fellows, police officers did not go along with Officer Sylvester’ story and Officer Sylvester was forced to retire from the Baltimore City Police Department. [Also,] on or about March 22, 1996, Police Officer Brian Bacon, who was an accuser-witness against Douglas at the Circuit Court For Baltimore City, appeared in the United States District Court For The District of Maryland and was exposed as an perjurer ... by changing his ... testimony. [Finally,] on or about March 9, 2007, the Sunpaper’s Newpaper’ Reporter Jennifer McMenamin wrote an News Article “that exposed Joseph Kopera, Head of the Maryland State Police Firearm Unit, as an perjurer; ... and he help to denied Douglas a Fair Jury Trial, with his perjurer’ testimony.... [Sic].
The Circuit Court denied Douglas’s petition without a hearing by Order dated November 5, 2009. The substance of the Order reads in full:
The court ha[s] reviewed all submissions and ha[s] considered all facts in the case, and ha[s] found that the Petitioner fails to show that there is newly discovered evidence, which could not have been discovered in time to move for a new trial, that creates a substantial or significant possibility that the results of his trial may have been different.
Douglas immediately filed in the Court of Special Appeals a “Notice of Application for Leave to Appeal” the Circuit Court’s Order. In June 2010, the Court of Special Appeals ordered that Douglas’s application be treated like a notice of appeal from the circuit court’s decision. On our initiative, we issued a writ of certiorari prior to arguments in the Court of Special Appeals.
B. Appellant Curtis
Curtis’s underlying convictions — attempted murder in the first degree, assault, and related handgun offenses — arose out of the shooting of James Sanders on the evening of November 22, 1994. On that night, Sanders was “hacking”
During a “turn-up” at Curtis’s last known address, an officer spoke with Curtis’s grandmother, Margaret Adkinson. He wrote her name on his report, as well as the name “Margaret Eri.”
Among other witnesses, Wayne Miles testified for the defense as an eyewitness.
The State impeached Miles’s credibility by asking how he came to testify in the case. Miles responded that the day after the shooting, “a friend of mine named Aaron came ... [and] asked me did I know anything about [the shooting, and] I told him I seen [sic] the whole thing.”
On the last day of trial, during rebuttal, the State asked a detective about someone named “Airy.” The detective responded: “The name came up in a turn up ... at [Curtis’s grandmother’s address]. Margaret Airy. The name was written on the report when they tried to do the turn up.”
During deliberation, the jury asked two questions: “1) Can we have clarification on who [Miles] said came to his house to talk to him about the shooting? 2) Who is MARGARET ERI?” The court denied the defense’s request to play back the videotape of Miles’s testimony because the jury had to rely on its own memory. The court allowed each party one minute to argue to the jury a theory as to the identity of “Margaret Eri.”
The jury ultimately convicted Curtis, and the Court of Special Appeals, in an unreported per curiam opinion, affirmed the convictions.
In 2010, Curtis filed a pro se petition for writ of actual innocence under C.P. § 8-301. Curtis argued that the newly discovered evidence was an affidavit of his grandmother, Margaret Adkinson, in which she swore that she had never mentioned the name of “Airy,” or “Eri,” to the police. Curtis asserted that this affidavit created a substantial or significant possibility that the outcome of his trial would have been different. Curtis also asserted that his grandmother’s testimony did not become relevant until the end of the trial. Additionally, he argued that the evidence was unavailable to him within the ten-day period during which he could have filed for a new trial because his grandmother had fallen ill from the shock of Curtis’s conviction and could not give an affidavit, and his imprisonment left him “lost, confused and bewilder[ed] of what options he had.”
The Circuit Court denied Curtis’s petition for writ of actual innocence without a hearing, by order dated April 9, 2010. The court provided the identical reasoning given in Douglas’s case:
The Court ha[s] reviewed all submissions and ha[s] considered all of the facts in the case, and ha[s] found that the Petitioner fails to show that there is newly discovered evidence which could not have been discovered in time to move for a new trial that creates a substantial or significant possibility that the result of his trial may have been different.
Subsequently, Curtis filed a notice of appeal in the Court of Special Appeals. On our initiative, we issued a writ of certiorari in Curtis’s case prior to arguments in the Court of Special Appeals.
II. Right to Appeal?
A. Statutory Right to Appeal Final Judgments
The State has filed a motion to dismiss both of the consolidated appeals on the ground that the denial of an order entered pursuant to C.P. § 8-301 is not appealable. For the reasons that follow, we hold that such rulings are appealable. We therefore deny the State’s motion.
In Maryland, criminal defendants do not have a constitutional right to appeal. Cubbage v. State,
Section 12-301 provides:
Right of appeal from final judgments — Generally
Except as provided in § 12-302[8 ] of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment.
“[A] final judgment” is one that “either determine[s] and conclude^] the rights of the parties involved or den[ies] a party the means to ‘prosecut[e] or defendt ] his or her rights and interests in the subject matter of the proceeding.’ ” In re Billy W.,
We conclude that the denial of a petition for writ of actual innocence is a final judgment under C.J. § 12-301. The ruling concludes a petitioner’s rights as to all claims based on the newly discovered evidence alleged in the petition. Once the court denies the petition, nothing remains pending in the case. A denial under C.P. § 8-301 also denies a petitioner “the means to ‘prosecut[e] or defend[ ] his or her rights and interest in the subject matter of the proceeding,’ ” id.,
Moreover, the final judgment requirement of C.J. § 12-301 aims to “prevent piecemeal appeals and ... the interruption of ongoing judicial proceedings.” Stephens v. State,
The State asserts that a denial of a petition for writ of actual innocence is not a final judgment because “[i]n criminal cases ... the final judgment occurs after conviction, upon the imposition of sentence.” The argument ignores the purpose of the final judgment rule set forth in C.J. § 12-301.
The State, in further support of its argument that an order denying relief under C.P. § 8-301 is not appealable, urges us to consider its legislative history. In the State’s view, the history reflects that the General Assembly did not intend such orders to be subject to appellate review. The State points in particular to action the legislature took in 2010 (after Appellant’s filed their petitions) to amend C.P. § 8-301. Among the proposed amendments was one that would have included express language conferring the right to appeal. H.B. 128, 2010 Session, First Reading January 18, 2010. That appeal provision was stricken from the amendments. See H.B. 128, 2010 Session, Third Reading File Bill, Amendment No. 2. The State interprets this action as reflecting the General Assembly’s purpose that there be no right of appeal from a denial of a petition filed pursuant to the statute. We are not so persuaded.
We have explained why the denial of a petition filed pursuant to C.P. § 8-301 is a final judgment. Given that C.J. § 12-301 expressly authorizes the right of appeal from a final judgment, explicit language to that same effect in C.P. § 8-301 would be redundant, and thus unnecessary.
We also reject, as misplaced, the State’s reliance on our decision in Fuller for the proposition that, absent an express appeal provision in C.P. § 8-301, there is none. Fuller is inapposite because we concluded in that case that the ruling sought to be appealed — the denial of a petition for commitment for substance abuse treatment pursuant to Maryland Code (1982, 2005 Repl. Vol., 2006 Supp.), § 8-507 of the Health-General Article (“H.G.”)
For all these reasons, we hold that a denial of a petition for writ of actual innocence is a final judgment under C.J. § 12-301.
B. Uniform Postconviction Procedure Act’s Express Denial?
The conclusion that C.J. § 12-301 grants a general right to appeal denials of C.P. § 8-301 petitions does not end our inquiry because C.J. § 12-301 precludes appeal where “expressly denied by law.” We must now consider the State’s assertion that the Uniform Postconviction Procedure Act (“UPPA”), codified at C.P. §§ 7-101 through 7-301, strips the right of appeal from actions brought under C.P. § 8-301.
Section 7 — 107(b)(1), the relevant section of the UPPA, provides, in pertinent part:
In a case in which a person challenges the validity of confinement under a sentence of ... imprisonment by seeking the writ of habeas corpus or the writ of coram nobis or by invoking a common law or statutory remedy other than this title, a person may not appeal to the Court of Appeals or the Court of Special Appeals.
(emphasis added). The State argues that § 7-107(b)(l) of the UPPA expressly denies the right to appeal a denial under C.P. § 8-301. Appellants respond that the UPPA does not apply to C.P. § 8-301, because claims of newly discovered evidence made pursuant to that statute are not cognizable under the UPPA, and C.P. § 7-107(b) was intended only to deny appeals in matters that could have been heard under the UPPA. We conclude that Appellants have the better part of the argument.
The purpose of the UPPA was to streamline “into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are ... presently] available for challenging the validity of a sentence.” State v. Zimmerman,
It is settled that questions of guilt or innocence cannot be raised in petitions for postconviction relief. See, e.g., Thornton v. Md. Penitentiary,
Furthermore, the legislative history of C.P. § 8-301 reflects a legislative purpose that the statute extend the right to seek a new trial on the basis of newly discovered evidence beyond that afforded a convicted defendant under Maryland Rule 4-331(c). The Fiscal and Policy Note that accompanied Senate Bill 486, which became C.P. § 8-301 in 2009, included the statement that the then-current law afforded a defendant relief under “Rule 4-331 ... if newly discovered evidence exist[ed] that could not have been discovered by due diligence in time to move for a new trial within 10 days after the verdict.” The Note also stated that defendants had one year within which to file Rule 4-331 motions based on newly discovered evidence. Id. The Note mentioned, too, that Virginia law provided defendants the opportunity to present newly discovered evidence within 21 days after sentencing, which right the Virginia legislature “expanded ... in 2004 to allow felons to submit new evidence other than DNA tests.” Id.
C.P. § 8-301, as originally enacted,
A convicted person, at any time, may file a petition for writ of actual innocence ... 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.
2009 Md. Laws ch. 744. C.P. § 8-301 by its language embodies the apparent intention of the General Assembly to enact in Maryland (similar to the Virginia enactment) a broader claim of actual innocence, based on newly discovered evidence, than that provided under Md. Rule 4-331(e).
We are persuaded that the remedy afforded under C.P. § 8-301, like the similar (albeit more restricted) remedy provided by a motion for new trial, see Patuxent Inst.,
C.
In sum, we hold that the denial of a petition under C.P. § 8-301 is a final judgment and may be appealed pursuant to C.J. § 12-301. Furthermore, the UPPA appeal-stripping provision does not apply to C.P. § 8-301. Accordingly, the State’s Motion to dismiss is denied.
III. The Merits of Appellants’ Claims
A. The hearing requirement
Both Appellants contend that the Circuit Court erred in denying their C.P. § 8-301 petitions, without affording them a hearing. Appellants contend generally that the statute establishes a pleading requirement that, if met, automatically triggers a hearing, provided one was requested. The State responds that the express language of the statute allows the trial court to deny a petition for writ of actual innocence without a hearing, even if the petition has met the procedural pleading requirements, “if the court finds that the petition fails to assert grounds on which relief may be granted.”
To determine whether C.P. § 8-301 mandates a hearing before the trial court may dismiss the petitions and, if so, under what circumstances, we turn to our rules of statutory interpretation:
In statutory interpretation, our primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules. We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Occasionally we see fit to examine extrinsic sources of legislative intent merely as a check of our reading of a statute’s plain language. In such instances, we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments.
Evans v. State,
Section 8-301(e) provides:
(1) Except as provided in paragraph (2) of this subsection, the court shall hold a hearing on a petition filed under this section if the petition satisfies the requirements of subsection (b) of this section and a hearing was requested.
(2) The court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted.
Section 8-301(b), in turn, provides:
(b) Requirements. — A petition filed under this section shall:
(1) be in writing;
(2) state in detail the grounds on which the petition is based;
(3) describe the newly discovered evidence;
(4) contain or be accompanied by a request for a hearing if a hearing is sought; and
(5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.
The statute also defines “grounds”:
(a) Grounds. — A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:
(1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and
(2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.
C.P. § 8-301(a).
C.P. § 8 — 301(e)(2) grants the court the authority to dismiss a petition that, although compliant with the procedural requirements of subsection (b), does not assert grounds upon which relief could be granted. The language of the statute is key. It requires that a petition “assert” grounds for relief; it does not require the petitioner to satisfy the burden of proving those grounds in the papers submitted. Additionally, the plain language of the statute declares that a petitioner has the requisite grounds if he “claims that there is newly discovered evidence that: (1) creates a substantial or significant possibility that the result may have been different ...; and (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.” C.P. § 8-301(a) (emphasis added). Nothing in the language of the statute requires more than that a petitioner plead those assertions before the hearing requirement is triggered. We are prohibited by our rules of construction from reading into a statute a construction not reflected by its plain language, Price v. State,
We therefore hold that the statute establishes only a burden of pleading grounds for relief, not of proving them, and that a trial court may dismiss a petition without a hearing when one was requested, pursuant to C.P. § 8-301(e)(2), only when a’ petitioner fails to satisfy the pleading requirement. The pleading requirement mandates that the trial court determine whether the allegations could afford a petitioner relief, if those allegations would be proven at a hearing, assuming the facts in the light most favorable to the petitioner and accepting all reasonable inferences that can be drawn from the petition. That is, when determining whether to dismiss a petition for writ of actual innocence without a hearing pursuant to C.P. § 8-301(e)(2), provided the petition comports with the procedural requirements under C.P. § 8-301 (b), the trial court must consider whether the allegations, if proven, consist of newly discovered evidence that “could not have been discovered in time to move for a new trial under Maryland Rule 4-331” and whether that evidence “creates a substantial or significant possibility that the result [of the trial] may have been different.” C.P. § 8-301(a).
This standard does not require that a trial court take impossibilities as truths. For example, if a petition asserts, as “newly discovered,” evidence that was
In Jackson we recognized the persuasive value of a hearing.
[The right to a hearing] represents an assessment by us of the significance of the matter under consideration, at least to the parties, and, given that significance, of their right, if they choose to exercise it, to present directly to the court, viva, voce, the reasons why they should prevail. It is a recognition that personal, vocal communication with the judge may not only itself be a more effective means of persuasion than written documents that may be read hurriedly and not fully appreciated or understood, but that a hearing offers at least a limited opportunity for dialogue, allowing for clarification, for greater precision, for addressing concerns harbored and expressed by the judge. It is a right that, ordinarily, may be waived, but when not waived, we are loathe, in the absence of extraordinary circumstances, to find its denial harmless. It would often be a matter of pure speculation whether prejudice ensued— whether, had the party been given the opportunity to make his or her “pitch” at a hearing, the result may have been different — and that is much more likely the case when the decision may rest upon the resolution of factual disputes or the exercise of discretion and judgment.
Id.,
We also have recognized the importance of holding a hearing even when one is neither mandated by statute nor by Article 24 of the Maryland Declaration of Rights. In Arey v. State,
given the purpose underlying the statute, which is to provide a means for incarcerated persons to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing, and notwithstanding that [the statute] is silent on the issue of hearings, if the court determines that there is a genuine factual dispute as to whether the evidence exists, ordinarily the court should hold a hearing.
Id. at 507,
B. Sufficiency of the Petitions in the Cases at Bar
We begin by noting that both Douglas and Curtis filed their petitions pro se. It
1. Douglas’s Petition
Douglas asserts that he was entitled to a hearing before the court denied his petition because he satisfied all of the procedural requirements of C.P. § 8 — 301(b). The State, though, contends that Douglas’s petition does not comport with the statute’s procedural requirements, including that he did not request a hearing. Specifically, the State asserts, inter alia, that the claims are procedural, not evidentiary; the petition does not indicate that the evidence was newly discovered and could not have been discovered earlier; and the petition does not assert the materiality of the evidence. We disagree. Construing Douglas’s petition liberally, we conclude that the petition satisfies the statute’s pleading requirements.
The first requirement is easily satisfied because Douglas submitted his petition in writing. The petition also satisfies the second requirement, that Douglas “state in detail the grounds on which the petition is based.” C.P. § 8-301(b)(2). The petition includes several detailed allegations of error committed by the trial judge in addition to several items of evidence that were discovered years after Douglas’s trial and sentencing. Douglas also includes a blanket assertion that
That Statement Of Facts with Exhibits in Support of Statement Of The Case is of great importance, which will show “that Douglas was an continual to be an Victim of Miscarriage Of Justice, caused by these Police Officers, Assistant State’s Attorney Schenker and Judge Johnson actions and/or lack of actions and perjury’ testimonies by witnesses and Douglas is actual innocence. [Sic.]
We also conclude that Douglas’s petition satisfied the third procedural requirement, that Douglas “describe the newly discovered evidence.” C.P. § 8 — 301(b)(3). As mentioned above, Douglas made several allegations. Among them he alleged that, on March 9, 2007, an article was published that “exposed Joseph Kopera ... as an perjurer.’ [Sic.]” Officer Kopera was one of the expert witnesses who had testified for the State during Douglas’s trial. This allegation, viewed in the light most favorable to Douglas, could be proven to be newly discovered evidence.
Douglas also satisfied the fourth requirement under C.P. § 8 — 301(b)(4), which requires that the petition request a hearing if one is sought. Although Douglas did not expressly state “I request a hearing,” we are persuaded that the petition, liberally construed, reflects Douglas’s indicated desire for a hearing.
Douglas also has satisfied C.P. § 8 — 301(b)(5), that he “distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.” We have said that a petitioner may not file multiple petitions based on the same claim, but that does not prevent a petitioner from filing subsequent petitions asserting grounds of different newly discovered evidence. The possibility of filing multiple petitions asserting different grounds gives context to the requirement that a petitioner distinguish the evidence in the instant petition from claims in prior petitions. Douglas asserts that the phrase “prior petitions” does not refer to every prior filing.
It remains for us to consider whether the court, nonetheless, could dismiss the petition without a hearing because Douglas “fail[ed] to assert grounds on which relief may be granted,” pursuant to C.P. § 8-301(e)(2). We discussed above that C.P. § 8-301(e)(2) authorizes the trial court to dismiss a petition for writ of actual innocence without a hearing even though one was requested, if the court concludes that the allegations, if proven, could not entitle a petitioner to relief. In this regard, the court erred in summarily denying the petition.
Douglas alleged grounds that, if proven, could entitle him to relief. Douglas asserted that there was newly discovered evidence that Officer Kopera, who had testified at Douglas’s trial, had falsified his credentials. Douglas submitted as an exhibit with his petition a newspaper article explaining his allegation of newly discovered evidence. Dated March 9, 2007, the article reported that “Joseph Kopera, head of the Maryland State Police firearms unit, claimed on witness stands to have degrees that he never earned____ Questions regarding the longtime firearms and toolmarks examiner’s credentials were raised several weeks ago by state public defenders working with the Innocence Project.” The article explained that “the chief attorney with the ... Innocence Project ... became concerned about Kopera’s qualifications while reviewing transcripts” and noting inconsistencies regarding the credentials he testified he had earned. Given that there were “hundreds of people he helped convict” and that Kopera had worked for “21 years in the Baltimore Police Department’s crime laboratory before he was lured away in 1991 to join the
Further, Douglas’s petition asserted that Kopera “help to denied Douglas a Fair Jury Trial, with his perjurer’ testimony at Douglas’ Jury Trial. [Sic.]” These allegations assert a basis that the newly discovered evidence “creates a substantial or significant possibility that the result [of Douglas’s trial] may have been different.” C.P. § 8-301(a)(l).
In short, Douglas’s petition satisfied the procedural requirements of C.P. § 8 — 301(a)(1). He is entitled to the hearing on the petition he requested. We emphasize that, although Douglas has satisfied the pleading requirement to assert grounds for relief, it does not follow automatically that he can prove his claim.
2. Curtis’s Petition
We now turn to the merits of Appellant Curtis’s appeal. Unlike Douglas’s petition, Curtis’s petition for writ of actual innocence contains only one claim of newly discovered evidence: an affidavit from his grandmother, indicating that she is willing to testify in court that she never mentioned the name “Airy,” or “Eri,” to the police. The State contends that Curtis’s petition fails because he did not assert that the affidavit could not have been obtained within one year after the mandate from the Court of Special Appeals and, moreover, the affidavit is not newly discovered evidence because Curtis indicates in his petition that he was aware of the information after his conviction. The State further contends that, even if the affidavit was newly discovered evidence, the grandmother’s testimony would be unlikely to create a significant or substantial possibility that Curtis would be found not guilty because the affidavit does not undermine the victim’s unequivocal testimony that Curtis shot him. Curtis counters that his grandmother’s testimony would create a substantial or significant possibility that a jury would find him not guilty because, as evidenced by the jury’s interest in the identity of “Airy,” or “Eri” during their deliberations, the theory that Curtis coerced witnesses factored heavily into Curtis’s conviction.
We agree with the State that the Circuit Court properly denied Curtis’s petition because the evidence of his grandmother’s affidavit is not “newly discovered evidence.” We therefore need not consider whether Curtis has satisfied the other requirements that might entitle him to a hearing on the petition. In Argyrou v. State, we explained that, “[ejxculpatory evidence known ... prior to the expiration of the time for filing a motion for a new trial, though unavailable, in fact, is not newly discovered evidence.”
IV.
In summary, we hold that denials of petitions filed under C.P. § 8-301 are subject to appeal as final judgments. We also hold that C.P. § 8-301(e)(2) establishes a burden of pleading for a petitioner. If that burden is satisfied, and if the petition
Applying these holdings to the cases at bar, we conclude that Douglas is entitled to a hearing on his petition for writ of actual innocence. We further conclude that the Circuit Court’s denial of Curtis’s petition must stand. We note that an amendment to C.P. § 8-301, providing for an opportunity for the State to respond within 90 days of the receipt of petitioner’s written notice of the petition, was enacted after Douglas’s petition was denied. Therefore, on remand, the State shall have an opportunity to submit a written response to Doúglas’s petition. We make no conclusions regarding the underlying merits of Douglas’s petition and we recognize that decisions on the merits of requests for new trials based on newly discovered evidence, whether filed pursuant to Rule 4-331 or the C.P. § 8-301, are committed to the hearing court’s sound discretion.
ORDER OF THE CIRCUIT COURT FOR BALTIMORE CITY DENYING APPELLANT DOUGLAS’S PETITION FOR WRIT OF ACTUAL INNOCENCE VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
ORDER OF THE CIRCUIT COURT FOR BALTIMORE CITY DENYING APPELLANT CURTIS’S PETITION FOR WRIT OF ACTUAL INNOCENCE AFFIRMED; COSTS TO BE PAID BY APPELLANT CURTIS.
HARRELL, BATTAGLIA, and ADKINS, JJ., dissent.
Notes
. Section 8-301 was amended in 2010. Because none of the amendments affect our analysis, we cite the current version of the statute. Section 8-310, “Petition for writ of actual innocence,” provides:
(a) Grounds. — A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:
(1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and
(2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.
(b) Requirements. — A petition filed under this section shall:
(1) be in writing;
(2) state in detail the grounds on which the petition is based;
(3) describe the newly discovered evidence;
(4) contain or be accompanied by a request for hearing if a hearing is sought; and
(5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.
(e) Hearing. — (1) Except as provided in paragraph (2) of this subsection, the court shall hold a hearing on a petition filed under this section if the petition satisfies the requirements of subsection (b) of this section and a hearing was requested.
(2) The court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted.
(b Ruling. — (1) In ruling on a petition filed under this section, the court may set aside the verdict, resentence, grant a new trial, or correct the sentence, as the court considers appropriate.
(2) The court shall state the reasons for its ruling on the record, (g) Burden of proof. — A petitioner in a proceeding under this section has the burden of proof.
. Douglas actually filed an application for leave to appeal, but in June 2010, the Court of Special Appeals ordered that Douglas’s filing be treated like a notice of appeal from the Circuit Court's decision.
. The third bullet was not recovered from the officer's utility belt until approximately two months after the incident, when the officer noticed the bullet lodged in his belt as he prepared to return to duty after recovering from his injury. He immediately notified his supervisor and the bullet was collected and processed by forensic analyst Joseph Kopera.
. "Hacking'’ is the term used to describe the act of unlawfully working as a taxi driver.
. The record before us does not indicate whether the victim’s identification of the shooter as Tony created conflict with the indictment of Curtis. We assume the lack of dispute arises from the probability that Curtis, whose middle name is Anthony, may have gone by the nickname Tony. This is supported by the fact that Curtis’s last known residence was his grandmother’s house on Richwood Avenue.
. Curtis produced two other defense witnesses at trial: Anthony Jones, who testified that Sanders did not tell him that Curtis was the shooter, and Charlene Wise, who testified that Curtis was home with her the night of the shooting.
. As indicated below, the identity (or identities) of "Aaron,” "Eri” and "Airy” is/are disputed. Our use of one name over the other simply reflects the spelling of the name in the trial transcript.
. Section 12-302 provides specific exemptions from applicability of the appeal right granted by § 12-301, such as contempt proceedings and decisions from appellate review of District Court decisions. Section 12-302 also provides for specific instances in which the State may appeal in criminal cases. None of those provisions apply in the matter sub judice.
. The current volume of the Health-General Article is Maryland Code (2000, 2009 Repl. Vol.). No amendment since Fuller affects our analysis here.
. We reasoned in Fuller that a motion under H.G. § 8-507 was more akin to a habeas corpus action than a motion to modify sentence under Maryland Rule 4-345 — which we noted could possibly be appealed— because relief under H.G. § 8-507 "does not affect the length of a sentence!)] • •. initiates a statutory cause of action separate from the conviction, and may be filed repeatedly 'at any other time the defendant voluntarily agrees to participate in treatment.’ ” Fuller v. State, 397 Md. 372, 389,
. We do not mean to intimate that a convicted defendant is limited to filing only one petition, pursuant to C.P. § 8-301; we do mean that a convicted defendant is limited to raising only once, under the statute, a claim that a particular item of evidence is newly discovered.
. The statute was amended in 2010. Section 8-301(a) now provides: A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:
(1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and
(2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.
. Subsection (c) was modified in 2010, but none of the amendments are material to our analysis here.
. We recognize that new Rule 4-332 became effective October 1, 2011, and applies to actions commenced on or after that date, "and, insofar as practicable, to all actions then pending[.]” 38 Md. Reg. 1195 (September 23, 2011).
. The State argues that liberal construction in this case is inappropriate because requesting a hearing is procedural and this Court, like federal courts, requires that pro se petitioners follow the same rules and procedures as lawyers. However, as we noted in Simms v. State,
. Douglas filed two postconviction petitions and a motion to reopen his closed postconviction proceeding, which, like the petitions, was also denied. Upon each denial, Douglas sought leave to appeal. The Court of Special Appeals denied each request.
Dissenting Opinion
dissenting, in which BATTAGLIA and ADKINS, JJ., join.
I dissent. The State’s motion to dismiss these appeals, as not allowed by law, should be granted.
The Majority opinion concedes, at op. 170-71,
The Majority opinion, stepping into this void in the specific statute in play here, supplies that which the Legislature chose
Judge BATTAGLIA and Judge ADKINS authorize me to state that they join the views expressed in this dissent.