Adkins, J.
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 43rd 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 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).
Washington noted a direct appeal to this Court pursuant to CP § 8-201(k)(6). Arrington v. State ,
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 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 sentencedto 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 ,
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.
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
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
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
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. 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,
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
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 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.
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 prohibited by that statute.
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, 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 ,
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. Constitution and Article 24 of the Maryland Declaration of Rights.
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.
Similarly, in McKithen v. Brown ,
In Morrison v. Peterson ,
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 ,
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
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.
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.
We also decline to hold that Article 24 of the Maryland Declaration of Rights
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. ,
Because Washington's claim neither implicates a fundamental right nor a suspect class, we apply a rational
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 ,
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
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 ,
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 ,
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.
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 ,
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 to petition for postconviction
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 ,
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.
Notes
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.
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).
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).
Maryland Code (1957, 2012 Repl. Vol.), § 14-101(a) of the Criminal Law Article ("CR") provides:
(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;
(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.
Md. Code (1957, 2013 Repl. Vol., 2016 Supp.), § 10-402 Courts and Judicial Proceedings Article ("CJP").
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.
Black's Law Dictionary defines "violation" as "[a]n infraction or breach of the law." Violation , Black's Law Dictionary (10th ed. 2014).
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.
(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.
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.
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.
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 ,
Including Maryland, 27 states allow only individuals convicted of certain crimes to access postconviction DNA testing. See, e.g. ,
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.
Applying this rule, under Osborne , Article 24 also does not give rise to a substantive due process right to postconviction DNA testing.
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 ,