Blake v. State

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In the Circu it Court for B altimore C ity Case No. 18123007-08 IN THE COURT OF APPEALS OF MARYLAND No. 88 September Term, 2005 GEORGE E. BLAKE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: October 24, 2006 George E. Blake was convicted in 1982 of first degree rape and first degree sexual offense. On December 1, 2004, he filed a petition in the Circuit C ourt for B altimore C ity pursuant to Md. Code (2001, 2006 C um. Supp.) § 8-201 of the Criminal Procedure Article,1 requesting an evidentiary hearing and DN A testing o f scientific ev idence use d by the State at his trial in January 1982. On May 17, 2005, the Circuit Court summarily dismissed the petition. This case requires us to address th e procedures a circuit cou rt must follow befo re it denies a petition for postconviction DNA testing pursuant to § 8-201 on grounds that the evidence the petitioner has asked to be tested no longer exists. We shall reverse. I. In January 1982, Blake was tried and convicted in the Circuit Court for Baltimore City on the charges of first degree rape and first degree sexual offense. He was sentenced to two consecutive life terms w ithout the po ssibility of parole. Ev idence co llected from the victim included pubic hair samples and combings, vaginal swabs, and a blood sample . An examination by the Maryland crime laboratory revealed intact, non-m otile spermatozoa on the vaginal swab samples. On Decembe r 1, 2004, app ellant, Geor ge E. Blak e, filed this petition in the Circu it Court for Baltimore City pursuant to § 8-201, requesting DNA testing of evidence used by the State at his trial in January 1982. On January 21, 2005, the State filed a motion to dismiss 1 All subsequent statutory references herein shall be to the Criminal Procedure Article, Md. Code (2001, 2006 Cum. Supp.), unless otherwise indicated. the petition and, on May 17, 2005, file d a supplemental motion to dismiss, stating that the evidence had been destroyed w ell before October 1, 2001. The State s certificate of service of the supplemental motion to dismiss was also dated M ay 17, 2005. The supplemental motion included two attachments. The first was a letter from the Assistant State s Attorney to Lt. Sandra Joyce of the Baltimore City Police Department, Special Investigations, requesting the officer consult with the Evidenc e Control U nit of the Baltimore City Police Department and determine w hether there was any evidence preserved relating to Blake s case. The second attachment was a memorandum directed to Major Frederick Taber from Sgt. Charles Morgan, stating that [t]he Evidence Control Section was checked by the unders igned, a nd ther e was n o Evid ence f ound f or that ca se. On May 17, 2005, the same day the State filed the supplemental motion to dismiss, the trial court summarily dismissed appellant s petition without holding a hearing or otherwise giving app ellant an opportunity to respond to the State s dispositive motion. Appellant then noted an application for leave to appeal to the Court of Special Appeals, which transferred the appeal to this Court pursuant to Md. Rule 8-132 on grounds that the appeal sho uld have b een noted directly to this Co urt. 2 2 Section 8-201(j)(6) provides f or a direct appeal to the Co urt of Appeals fro m an order entered under su bsection (c), (h)(2), or (j)(4). -2- II. Appellant raises three issues on appeal. First, he argues that the trial court dismissed his petition impr operly becau se it did not have an adequate factual record before it from which to conclude that the State no longer possessed the evidence appellant asked to be tested, and further that he was entitled to a hearing to resolve the factual dispute over the existence of the evidence. Second, appellant alleges that the Circuit Court erred in denying him appointed counsel for proceedings related to his post-conviction petition for DNA testing.3 Finally, appellant contends that the two mandatory life sentences without parole he received a re illegal. The State conte nds that an e videntiary hear ing is not req uired beca use the plain language of § 8-201 does not require an evidentiary hearing, and therefore, the Circuit Court was permitted under the statu te to dism iss appe llant s pe tition w ithout h olding a hearin g. As to the right to co unsel, the Sta te contend s that there is no right to counsel under § 8-201. Finally, on the illegal sentence issue, the State argues that we should not address this issue because it w as previou sly litigated and ab andoned by appellant o n his direct ap peal. 3 Appellant requested that an attorney be appointed to represent him in these proceedin gs. The record is unclear, however, whether appellant had assistance of counsel because in his petition he stated that Now comes the Petitioner, George Blake, Pro-Se, and through his assigned c ounsel, M r. Patrick Ke nt, Supervisor of Forensic Division at the Office of the Public Defender, 1 N. Calvert Street, 16th floor, B altimore , Md. 2 1202. -3- III. Maryland is among the many states in this country that have enacted post-conviction DNA testing statutes.4 Section 8-201 was enacted in Maryland in 2001, in line with a nationwide trend to adopt postconviction DNA testing statutes designed to provide an avenue for the exoneration of the a ctually innocent. In 1994, New York w as the first state to adopt a postconviction DNA testing statute. N.Y. Crim. Pro c. Law § 440.30(1 -a) (2006). Illino is soon followed in 1998. See 725 Ill. Comp. Stat. 5/116-3(c)(1) (2006) (pe rmitting testing only if the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant s assertion of actual innocence . . . (emphasis added)). Within three years after the enactment of § 8-201, Maryland was one of thirty-two states to h ave en acted sta tutes pro viding for som e form of pos tconvic tion DN A testin g. 4 See Ariz. Rev. Stat. Ann. § 13-4240 (2001); Ark. Code Ann. § 16-112-202 (20 06); Cal. Penal Code § 1405 (West 2000 & Supp. 2006); Conn. Gen. Stat. Ann. § 52-582 (200 5); Del. Code Ann. tit. 11, § 4504 (2001); D.C. Code § 22-4133 (2001 & Supp. 20 06); Fla. Stat. Ann. § 925.11 (West 2001 & Supp. 2006); Idaho Code Ann. § 19-4902 (Michie 2004); Ind. Code Ann. § 35- 38 -7-1 to 3 5-38-7 -19 (Le xisNe xis 199 8 & S upp. 20 06); K an. Stat. A nn. § 21-2512 (1995 & Supp. 2004); La. Code Crim. Proc. Ann. art. 926.1 (1997 & Supp. 2006); Me. Rev. Stat. Ann. tit. 15, § 2138 (2003 & Supp. 2005); Mich. Comp. Laws Ann. § 770.16 (West 2000 & S upp. 2006); Minn. Stat. Ann. § 590.01 (West 2000 & Supp. 2006); Mo. Ann. Stat. § 547.035 (West 2002 & Supp. 2006); Neb. Rev. Stat. § 29-4120 (1995 & Su pp. 2004); N.J. Stat. Ann. § 2A:84A -32a (W est 1994 & Supp. 20 06); N.M . Stat. Ann. § 31-1A-2 (Michie 2005); N.C. Gen. Stat. §§ 15A- 269 to - 270 (2 005); O kla. Stat. A nn. tit. 22 , §§ 137 1-137 1.2 (West 2003 & Supp. 2006); Or. Rev. Stat. §§ 138.255, 138.261 (2005); 42 Pa. Cons. Stat. Ann. § 9543.1 (West 1998 & Supp. 20 06); R.I. Gen. Law s § 10-9.1-12 (1997 & Supp. 20 05); Tenn. Code Ann. § 40-30 -301 to 40-30 -313 (2 003 & Supp . 2005) ; Tex. C ode C rim. Proc. Ann. art. 64.01 to 64.05 (Vernon 1979 & Supp. 2006); Utah Code An n. § 78-35a-301 (2 002); Va. Code Ann. § 19.2- 327.1 (2004 & Supp. 2006); Wash. Rev. Code § 10.73.170 (West 2000 & S upp. 2001); W is. Stat. Ann. § 974.07 (199 8 & Supp . 2005). -4- Continuing this trend Congress enacted the Innocence Protection Act of 2004, Pub. L. 108 -405, T itle IV, § 401 et seq. (2004), which provides for postconviction DNA testing of prisoners convicted under federal an d certain state law s. See 18 U.S.C. § 3600(a). Aside from the title, the Innoce nce Protec tion Act m akes clear th at its principal pu rpose is exoneration of the actually innocent by requiring an applicant for postconviction DNA testing to assert under penalties of perjury that the he or she is actually innocent of the conviction challen ged thr ough D NA te sting. See id. A broad approach to the future of DNA evidence and recommendations for handling postconviction DNA testing requests were addressed in a report by the National Commission on the Future of DNA Evidence, a commission created in 1998 by the National Institute of Justice ( NIJ )5 at the request of Attorney General Janet Reno. The National Commission on the Future of DNA Evidence was chaired by Chief Justice Shirley S. Abrahamson of the Wiscon sin Supreme Court, and its members included a number of prominent f orensic scientists, legal acade mics, law e nforcem ent officials, e lected pub lic officials, and legal practitioners. The report from the Commission, entitled P OSTCONVICTION DNA T ESTING: R ECOMMENDATIONS FOR H ANDLING R EQUESTS, National Institute of Justice, National 5 NIJ is a federal executive agency within the United States Department of Justice. See 42 U.S .C. § 37 22(a) (e stablish ing NI J). NIJ s mission , as spec ified by sta tute, inter alia, is to provide for and encourage res earch a nd dem onstratio n effo rts for th e purpo se of . . . improving Federal, State, and local criminal justice systems and re lated aspec ts of the civil justice system . . . 42 U.S.C. § 3721(1 ). -5- Commission on the Future of DNA Evidence, S e p t e mb e r 1999, ( 1999 N IJ Report ), set out proposed guidelines for analyzing cas es in whic h DNA evidence is presented . As a back drop to our discussion, it is helpful to look briefly at some of the relevant recommendations contained within the report. The report groups requests for post-conviction DNA testing into five broad categories and sets out a framework for analyzing requests of DNA testing as follows: Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing. Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retestin g, exclusionary results would support the petitioner s claim of innocence, but reasonable persons might disagree as to wheth er the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence. Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclusive. Future developments may cause such a cas e to be reass igned to a dif fere nt ca tego ry. Category 4. These are cases in which biological evidence was never collecte d, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible. -6- Category 5. These a re cases in which a request for DNA testing is frivolous. In these cases, prosecutors and defense counsel should genera lly agree th at no tes ting is w arrante d. Id. at xiii-xiv . The Commission recognized that [f]inding the eviden ce is the mo st difficult part of t he proc ess, id. at 45, and cautioned prosecutors against concluding too hastily that evidence sought by an inmate no longer exists. The report notes that [m]a ny times all parties believe that the evidence has been destroyed, when in fact it has not. Id. The report states as follows: If, from initial contact with the investigating officer or review of case files, it appears tha t evidence s uitable for D NA an alysis was never colle cted, or has s ince been destroyed, it may prove impossible to continue with the res t of this guide line. . . . Howeve r, no final decision or notification should be mad e until it has been carefully verified that evidence did not or does not still exist. Id. at 36 (emphasis adde d). The report recommends that the searcher for evidence should ch eck the m ost likely places where the evidence may be found, and suggests the following locations: Police departm ent evid ence o r prope rty rooms . Evidence is often found here if the evidence was never tested or it was sent to the State crim e laboratory, w hich then re turned it. Prosecutor s office. Evidence is often found here when it has been introd uced at trial. State and local crime laboratories will often retain slides or other pieces of eviden ce after conducting testing. L aboratories w ill usually return to the police department the clothing and vaginal swabs tha t are introduc ed as exh ibits at trial. -7- Hospitals, clinics, or doc tors offices where se xual assau lt kits are prepared. Defense investigators. Courthouse property/evidence rooms. Offices of defen se counse l in jurisdictions that require p arties to preserve e xhibits prod uced at trial. Independent crime laboratories. Clerks of court. Court r eporter s. Id. at 46. IV. We address first the issue of whether the Circuit Court erred in summarily dismissing appellant s petition for postconviction DNA testing. We hold that the court erred in dismissing the petition without giving appellant an opportunity to respond to the State s assertion that the evidence at issue no longer was in its possession. Subsections (b), (c), and (d) of § 8-201, which address the prerequisites for entering a DNA testing order, provide as follows: (b) Filing of petition. Notwithstanding any other law governing postconviction relief, a person who is convicted of a violation of § 2-201, § 2-204, § 2-207, or §§ 3-303 through 3-306 of the Criminal Law Article may file a petition for DNA testing of scientific identification evidence that the State -8- possesses as provide d in subsection (i) of this section and that is related to the judgment of conviction. (c) Findings requiring DNA testing. Subject to subsection (d) of this section, a court shall order DNA testing if the court finds that: (1) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and (2) the requested DNA test employs a method of testing generally accepted within the relevant scientifi c com mun ity. (d) Notification of petition; response. (1) A petitioner shall notify the State in writing of the filing of a petition under this section. (2) The State may file a response to the petition within 15 days after n otice of the f iling or within the time that the c ourt ord ers. None of these subsections address expressly the procedures which must be followed when the State represents that the evidence no longer exists, or where there is a factual dispute over the existence of evidence a petitioner seeks to have tested. Furthermore, no provision in the Maryland Rules applies explicitly to proceedings under § 8-201. The Maryland statute mandates that the State shall preserve scientific identification evidence that the State has reason to kno w contain s DNA material and is secured in connection with a conviction under § 2-201, § 2-204, §2-207 or §§ 3-303 through 3-306 of the Criminal Law Article.6 § 8-20 1(i). The statute, as drafted, presumes that the evidence 6 Section 8-201(j)(1) sets out the procedure that the State must follow to dispose of (contin ued...) -9- a petitioner requests to be tested in fact exists, and does not, on its fac e, contemp late circumstances where the evidence has been destroyed before the adoption of the statute, or where there is a factual dispute over the existence of DNA testing e videnc e. See §8-201(b). The question w e must address is wh ether Blake was e ntitled to notice of the State s motion to dismiss his petition for DNA testing on the grounds that the evidence did not then exist, and, whether he w as entitled to an opportunity to respond before the Circuit Co urt summarily dismissed his petition.7 We look first to the language of § 8-201. We apply the well settled rules of statutory construction in interpreting the statute before us. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. See Oakland v. Mountain Lake, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the statute s apparent purpose, w e give eff ect to the statute as it is writte n. See Mackey v. Comp ass, 391 Md. 117, 141, 892 A.2d 479, 493 (2006). If the language of the statute is ambiguous, we resolve the ambig uity in light of the legislative intent, considering the legislative history, case law, and sta tutory pur pose. See Comptroller v. Phillips, 384 Md. 583 , 591, 865 A.2d 5 90, 594 (2005). W e consider both the ord inary meaning of the language of the statute and how that langua ge relates to th e overall meaning, 6 (...continued) scientific evidence before the expiration of the time period described in the statute. 7 Whethe r Blake s p etition is suffic ient to entitle him to DNA testing is not before us. -10- setting, and pu rpose o f the ac t. Deville v. Sta te, 383 M d. 217, 2 23, 858 A.2d 4 84, 487 (2004). We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with comm on sen se. Gwin v. MVA, 385 Md. 440, 462, 869 A.2d 8 22, 835 (2005). We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, mean ingless, o r nugat ory. Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 11 15 (2005). -11- Section 8-201 is silent with respect to hearings upon the filing of a petition requesting DNA testing.8 In addition, th is Court has not adopted rules implementing the statute, as have 8 A hearing is required explicitly under § 8-201(j)(4). In those instances where the State gives notice that it wishes to dispose of scientific identification evidence before the expiration of the time period set out in the statute, and a person files written o bjections to the State s notice, § 8-201(j)(4) states that the court shall hold a hearing on the proposed disposition of the evidence. . . . Other states provides explicitly for a hearing upon the filing of the petition requesting testing. See, e.g., Cal. Penal Code § 1405(e) (West 2000 & Su pp. 2006) (stating that a court, in its discretion, may order a hearing on the motion ); Ga. Code. Ann. § 5-5-41(c)(6) (1995 & Supp. 2006) (requiring a hearing if the petition for postco nviction D NA testin g is facially sufficient, and providing that [t]he petitioner and the state may present evidence by sworn and notarized affidavits or testimony ); Haw. Rev. Stat. § 844D-122 (1993 & Supp. 2005) (requiring a hearing on a motion for postconviction DNA testing unless the motion is patently frivolous because it is without a trace of support either in the record or in any materials submitted with the motion ); Ind. Code Ann. § 35-38-7-7 (West 2006) (a c ourt ma y, in its discretion, order a hearing on the petition ); Mo. Ann. Stat. § 547.035(6), (8) (West 2002 & Supp. 2006) (requiring a hearing on a motion unless the files and records of the case conc lusively show that the movant is not entitled to relief ); Neb. Rev. Stat § 294120(5) (1995 & Supp. 2004) (stating that [u]pon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion ); N.J. Stat. Ann. §2A:84A32a(a)(2)(b) (West 1994 & Supp. 2006) (stating that at its discretion, the co urt may order a hearing on the mo tion ); N.Y . Crim. Proc . § 440.30(5 ) (2006) (se tting forth circumstances requiring a hearing and those where court may summarily grant or deny the m otion); Oh io Rev. Code Ann. § 2953.73(D) (W est 2006) (stating that the court is not required to conduct an eviden tiary hearin g in con ducting its review of, and in making its determina tion as to whether to accept or reject, the application ); 42 Pa. Cons. Stat. Ann. § 9543.1(f)(2) (West 1998 & Supp. 2006) (noting that upon receipt of a petition the court shall consider the petition along with any answer filed by the Commonwealth and shall conduct a hearing thereon ); R.I. Gen. Laws § 10-9.1-12(a), (b) (1997 & Supp. 2005) (noting that mandatory and permissive DNA testing is to be considered by court [a]fter notice to the prosecution and a hearing ); Tenn. Code Ann. § 40-30-312 (2003 & Supp. 2005) (noting that if DNA analysis is favorable to a petitioner the court shall order a hearing, notwithstanding any provisions of law or rule of court that would bar such a hearing as untimely ); Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon 1979 & Supp. 2006) (stating that after examining DNA test results, the convicting court shall hold a hearing and make a finding as to whether, had (contin ued...) -12- some other states.9 The legislative history offers no help e ither.10 8 (...continued) the results been available during the trial of the offense, it is reasonably probable that the person would not hav e been convic ted ); U tah Co de An n. § 78-35a-303(1)(b) (2002) (noting that if a DN A test is fav orable, the s tate may stipulate to the conviction being vacated, or may request a hearing ); Va. Code Ann. § 19.2-327.1(D) (2004 & Supp. 2006) (requiring the court to set forth findings specifically as to each statutory prerequisite for DNA testing after a hearing on the motion); Wis. Stat. Ann. § 974.07(10)(a) (1998 & Supp. 2005) (stating that if DNA tests suppor t movant s claim, the co urt shall sched ule a hearin g to determine the appropriate relief to be granted ). 9 For ex ample , Florida Rule of Criminal Procedure 3.853 provides that a motion for postconviction DNA testing must include, among other things, a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime. Fla. R. Crim. Proc. 3.853(b)(3). The rule also provides that the court shall make the following findings when ruling on the motion: (A) Whether it has been shown that physical evidence that may contain DNA still exists. (B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing. (C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial. Fla. R. Crim. Proc. 3.853(c)(5). 10 Section 8-201 was en acted o riginally in 2 001. See 2001 Md. Laws, Chap. 418, S.B. 694. It was a mend ed sub sequen tly in 2002 , 2003, a nd 200 4. See 2002 Md. Laws, Chaps. 213 § 6, 465 ; 2003 M d. Law s, Chap . 240; 20 04 M d. Law s, Chap . 25. Our review of the relevant bill files reveals nothing dispositive o n the issue b efore us. T he materials in the bill file for Senate Bill 694 of 2001 do not indicate any particular concern on the part of the General Assembly with the procedure a circuit court must follow when either th e State represents that the evidence does not exist, or there is a dispute over the existence of evidence that a petitioner has requested be s ubjected to DNA testing. The o nly explicit discussion of proced ural issues in th e materials in th e bill file for S.B. 694 is found in a letter (contin ued...) -13- We turn to the statute and conclude that the court erred in several respects. First, the court should not have summarily dismissed the petition for testing before Blake had an opportun ity to respo nd to th e State s motion to dism iss. Second, the court should not have dismissed the petition based merely on the memorandum before it stating that the evidence no longer existed. Inasmuch as the statute requires that the State preserve scientific evidence, Blake was entitled to know, if such could be determined, if the evidence was destroyed before or after the ena ctmen t of the s tatute. T hird, because the evidence has been in the custody of the State , the State has the burden of establishing that it no longer exists. An 10 (...continued) from the Maryland Judicial Conference to the Senate Judicial Proceedings Com mittee. In this letter, the Maryland Judicial Conference expressed concern over the impact on caseload given the number of motions that can be anticipated, and also noted that Senate Bill 694 covers procedural details that do not need to be set forth in statute, such as service of a copy on the opposing side. Letter from the Legislative Committee of the Maryland Judicial Conference to the Senate Judicial Proceedings Committee, February 27, 2001. These comments shed little if any light on the issue before us. The legislative history of the subsequent alterations of § 8-201 has no bearing on the issue before us either. The 2 002 changes to § 8-201 principally concerned the obligations of the State to retain e vidence, ex panding th e State s ob ligation to do so. See 2002 Md. Laws chap. 465 (amending § 8-201(i)). The 2004 changes were merely technical corrections. See 2004 Md. Laws chap. 25. The 2003 changes to § 8-201 were more extensive, but none addressed the procedural issue before us. See 2003 Md. Laws, chap. 240, S.B. 363. Chapter 240 rewrote § 8-201(c) subs tanti ally, changing the findings that a circuit court must make before ordering DNA testing, and also am ending su bsection (e), g iving a circuit court more discretion to enter related orders w hen it orders DNA testing. Chapter 240 also amended subsections (i) and (j), altering the procedures that must be followed when th e State seek s to dispose o f scientific identification evidence prior to the expiration of a sentence, and specifically requiring a hearing if the State seeks to do so. Finally, Chap. 240 amended subsection (j) to provide for a direct appeal to this Court from orders entered unde r subsections (c), (h)(2), and (j)(4). -14- unsworn memorandum, stating that the State merely requested the police to look in the evidence control unit, is insufficient to establish this critical fact. Finally, the court should make some findings of fact and should set forth the underlying reasons when it dismisses a petition for testing.11 We conclude that the Circuit Court erred in dismissing the petition witho ut, at a minimum, giving appellant an opportunity to respond to the State s allegation that the DNA testing evidence was no longer in its possession. Fundamenta l fairness requ ires that a petitioner be given an opportunity to respond and to challenge the State s representation. When it is the State s position that the evidence sought to be tested no longer exists, the circuit court may no t summar ily dismiss the petition requesting DNA testing. The court must give a petitioner notice of and an opportun ity to respo nd to th e State s allegatio n. A 11 Section 8-201(c) is captioned Findings requiring DNA testing. Although the statute does not, unlike many other states postconviction DNA testing statutes, require a finding that the evide nce exists and is available for testing, the statute does req uire a finding that a reasonable probability exists that the DN A testing h as the scientif ic potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing and that the requested DNA test employs a method of testing generally accepted within the relevant scientific community. § 8-201(c)(1-2). In addition, § 8-201(j), Disposal of evidence; notification; hearing; appeals, provides for a direct appeal to this Court. § 8201(j)(6). Findings of fact facilitate appellate review. Some state statutes or rules require express findings. See e.g., Fla. Stat. Ann. § 3.853(c)(5) (West 2006); Haw. Rev. Stat. § 844D-132(d) (1993 & Supp. 2005); Me. Rev. Stat. Ann. tit. 15, § 2138(10) (2003); Mich. Comp. Laws Ann. § 770.16(4) (West 2000 & Supp. 2006); Mo. Ann. Stat. § 547.035(8) (West 2002 & Supp. 2006); N.Y. Crim. Proc. Law § 440.30(1)(a) (Consol. 1996 & Supp. 2006). -15- petitioner has a right to notice and opportunity to contest the State s representation that the evidence is unavailable. The evidence preservation provisions in § 8-201 support our conclusion. Section 8201(i) provides, in relevant part, as follows: (1) The S tate shall prese rve scientific identification evidence that: (i) the State has reason to know contains DNA material; and (ii) is secured in connection with an offense described in subsection (b) of this section. (2) The State shall preserve scientific identification evidence described in paragraph (1) of this subsection for the time of the sentence, including any consecutive sentence imposed in connection with the offense. Section 8-201(j), although it permits the State to dispose of evidence it would otherwise be required to retain as required by § 8-201(i), only allows the State to do so if it notifies . . . the person who is incarcerated in connection with the case, any attorney of record for such a person, an d the public defende r. § 8-201(j)(1 ). Once no tice has bee n provide d, the inmate and the other parties have 120 days to file an objection to the proposed disposal of the evidence, and are the n entitled to a hearing as to whether the propo sed dispos al is appropriate. § 8-201(j)(3)-(4). The Maryland Rules that address notice and opportun ity to be heard in other types of proceedings also provide support for our holding. The rules allow the party opposing a motion, at a minimum, to respond, particularly to a dispositive m otion. See Md. Rule 2311(b) (applicable to civil actions in circ uit court, prov iding an op portunity for a party -16- against whom a motion is d irected to file a response); Md. Rule 2-311(e)-(f) (in a civil case, a court may not grant a motion for judgment notwithstanding the verdict, for a new trial, or a motion to amend the judgment without a hearing on the motion, and may not rule on a dispositive motion without a hearing if the oppo sing party has requested a hearing ); Md. R ule 4-252(f) (applying to motions filed in criminal proceedings in circuit court, and providing the opposing party an opportunity to respond); Md. Rule 4-406 (applicable in proceedings under the Uniform Post Conviction Procedure Act, and requiring a hearing on a petition under the Act). The pervasive philosophy in our Rules of Procedure that a party is entitled to notice should apply to dispositive motions under § 8-201.12 Due process considerations bear also on our conclusion that appellan t was entitled to an opportunity to respond to the State s motion. Appellant was afforded no notice of the 12 Writing for the Court in Phillips v. Venker, 316 Md. 21 2, 557 A.2d 13 38 (1989), Judge John F. McAuliffe discussed due process concerns and the types of hearings which may be required. He noted as follows: In some instances, even a temporary deprivation of a property interest followed by a right to a full hearing has been held to violate due process unless a pretermination hearing is provided. In other circumstances, a paper hearing , i.e. the right to be heard through the filing of documents and written arguments, may suffice. As the Supreme Co urt has s aid, [d] ue proc ess, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place an d circums tances. Ra ther, it is flexible and calls for such procedural pro tections as the particular situation deman ds. Id. at 218, 557 A.2d at 1 341 (internal citations omitted). Having held that the C ircuit Court e rred by failing to give appe llant an opp ortunity to respond to the State s motion to dismiss the petition, we do n ot reach the issue of w hether, and if so un der wh at circum stances , a § 8-201 petitioner is entitled to an oral hearing. The type of hearing to which appellant m ay be entitled in th e instant ma tter will depend upon the particular circumstances. -17- State s motion to d ismiss his petition, and no notice of the C ircuit Court s intent to dismiss his petition based solely on the representations in the State s motion. Appellant had a liberty interest at stake, and was, at a m inimum, e ntitled to notice of the imp ending ac tion, even if he did not have th e right to an oral h earing. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 90 2, 47 L .Ed.2d 18 (19 76). Conseq uently, the failure o f the Circu it Court to provide any notice to ap pellant that the State had filed the motion to dismiss and that the court intended to rule upon it, and its dismissal of the petition without affording appellant any opportunity to respond, violated his rights to due process. This Court addressed a party s due proc ess right to notice and opportun ity to be heard prior to a court ruling o n a dispositiv e motion in Phillips v. Venker, 316 Md. 212, 557 A.2d 1338 (1989). While a summary judgment motion by the defendants in a negligence action was pending before the trial court, the judge scheduled a telephone conference call between the parti es. Id. at 213-15, 557 A.2d at 1338-39. The stated purpose of the conferen ce call was to discuss plaintiffs request for a continuance of a hearing that was scheduled on th e summary judgm ent mo tion. Id. at 215, 557 A.2d at 1339. Nonetheless, after the call had begun, the trial judge decided to conduct the summary judgment hearing during the conference call, even tho ugh plaintif fs counse l told him that he did not have his file at hand and had not reviewed his file prior to the call. Id. After allow ing plaintiffs counsel to retrieve his case file, the trial judge heard approximately twenty to twenty-five minutes of argument from th e parties on the s umm ary judgm ent mo tion. Id. The judge then granted the -18- defendants motion . Id. We held that the trial court vio lated the plain tiffs due pr ocess rights by failing to give them adequate notice that it intended to conduct the hearing on the summary judgment motion during the c onferenc e call and tha t they were e ntitled to adequate notice of the time, place, and nature of that hearing, so that they cou ld adequa tely prepare. Id. at 222, 557 A.2d at 1 343 (internal citations omitted). Other courts have concluded that due process rights are implicated when courts make dispositive ru lings on po stconviction DNA testing reque sts without a hearing.13 In People v. Sanchez, the court he ld that the inmate s due process rights were violated when a trial court dismissed a petition for postconviction DNA testing on the basis of the State s allegation in an ex parte hearing that it no longer possessed the evidence the petitioner sought to be tested . People v. Sanchez, 842 N.E.2d 1246, 1254 (Ill. App. Ct. 2006). At a purported status conferen ce, the State advised the court that it could not locate the testing evidence. Id. at 1253. Upon being so informed by the State, the trial court dismissed the testing petition even though the issue of the existence of the evidence had not been previously raised by the State, and despite the abs ence o f the de fenda nt from the hea ring. Id. at 1253-54. The 13 Several Florida intermediate appellate courts have reversed trial court dismissals of postconviction DNA testing petitions where a petitioner was not afforded an oppo rtunity to respond to allegations by the State that te sting eviden ce no long er existed. See Carter v. State, 913 So. 2d 701, 702 (Fla. Dist. Ct. App. 2005) (holding that, under Florida postconviction DNA testing statute, [w]here a defendant claims that DNA evidence exists, but the state denies the claim, a f actual dispu te results and a n evidentia ry hearing is required ); Merson v. State, 876 So. 2 d 641, 64 2 (Fla. Dist. C t. App. 200 4); Marsh v. State, 852 So. 2d 94 5, 946 (Fla Dist. Ct. Ap p. 2003). -19- Sanchez court reasoned that the trial court s dismissal under these circumstances denied the defendant procedural due process [b]ecause [he] had no notice o r opportun ity to contest the State s representations, and because the State s representations formed the basis of the trial court s denial. Id. at 1254. We address next the State s representation in this case that the evide nce does not exist. Merely stating in an unsworn, unverified memorandum directed to Major Frederick Taber from Sgt. Charles Morgan, that [t]he Evidence Control Section was checked by the undersign ed, and the re was no Evidenc e found f or that case is insufficien t. Although the statute is silent as to which p arty has the burden to establish whether the evidence still exists and is available for testing, we conclude that the burden is on the State to establish that it is no longer in possession of the DNA testing evidence requested by a petitioner when it seeks to have the court dismiss a DNA testing petition on such grounds. It is only logical that this burden is upon the State, as the State gathered the evidence and was the custodian of the evidence. The information as to the location of the evidence and the manner of its destruction would not be within the knowledge of an inmate. This approach is supported by relevant au thority from other jurisdictions. In People v. Pitts, 828 N.E .2d 67 (N .Y. 2005) , the New York C ourt of A ppeals addressed a similar issue that arose under New York s postconviction DNA testing s tatute. See N.Y. Crim. Proc. § 440.30(2006). In Pitts, the court reversed the Appellate Division holding that the New York postconv iction DN A testing sta tute placed the burden on the defendant to establish that -20- the evidence the defendant asked to be tested stil l exists. Id. at 71-7 2. The court held that the lower co urt erred in interpreting [ the statute] . . . to place on d efendan ts the burde n to establish the loca tion and status of the evid ence th ey seek to be tested . Id. The interm ediate appellate court er red, the Court of Appeals reasoned, because it is the People, as the gatekeeper of the evid ence, wh o must sho w wha t evidence e xists and whether the evidence is available for testing. Id. at 72. See also P eople v. Tra vis, 771 N.E.2d 489, 493 (Ill. App. Ct. 2002) (observing that when there is a factual dispute as to whether evidence has been subjected to a proper chain of custody, as required by statu te, the trial court sh ould perm it limited discovery on this issue, because [i]t asks too much to require petitioning defendant[s] in these cases to plead and prove proper chain of custody at the outset, for the evidence at issue will und oubtedly have been w ithin the safekeeping of the State ). As the 1999 NIJ Report suggests, when an inmate files a petition for postconviction DNA testing, th e State s hould m ake an extens ive sear ch for th e evide nce. See 1999 NIJ Report at 36. Simply asking a police officer to check an evidence unit locker is not sufficient. There are many other likely places where the evidence may have been stored. The report urges prosecutors to search for evidence in nontradition al sources, an d to [c]onsider the possibility of testing items not traditionally thought to contain DNA evidence, such as slides taken by medical personnel during sexual assault examinations and paraffinimbedded tissue samples taken at the time of an autopsy. Id. The Report cautions prosecutors against concluding too hastily that evidence that an inmate has asked to be tested -21- no longer exists. Id. (noting that no final decision or notification should be made until it has been carefully verified that evidenc e did not or does no t still exist ). The motion to d ismiss in this case is analo gous to a su mmary judg ment mo tion in a civil case. At a minimum, a motion to dismiss a postconviction DNA testing petition on grounds that testing evidence does not exist should be supported by an affidavit before the court may grant the motion. This conclusion is sup ported by authority from other ju risdictions. Fo r instance, in Pitts, discussed supra, the New York C ourt of A ppeals reve rsed an interm ediate appe llate court ruling affirming a trial court s dismissal of a motion for postconviction DNA testing. Pitts, 828 N.E.2d 67, 72. There, in denying a motion for postconviction DNA testing, the court held that it was improper for the trial court to rely merely on the People s conclusory assertion that the evidence in question no longer exists. Id. Florida cou rts have held consistently that a dispute over whether testing evidence exists creates a factual dispute that must be resolved in an evidentiary hearing. See, e.g., Ca rter v. State, 913 So. 2d 701, 702-03 (Fla. Dist. Ct. App. 2005 ). Postconviction DNA testing statutes in some states require a court entertaining a testing petition to either conduct an evidentiary hearing or to consider affidavits submitted to the court prior to deciding whether to order DN A testing. For examp le, Nebraska s postconviction DNA testing statute permits postconviction DNA testing of any biological material that, among other conditions, [i]s in the actual or constructive possession or -22- control of the state o r is in the possession or control o f others un der circum stances likely to safeguard the integrity of the biological material s original physical composition. Neb. Rev. Stat § 29-4120(1)(b) (1995 & Supp. 2004). The statute provides as follows: Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that such testing was effectively not available at the time of trial, that the biological material has been retain ed under circumstan ces likely to safeguard the integrity of its original physical composition, and that such testing may produce non cumulative, exculpatory evidence relevant to the claim that the person was wr ongfully convic ted or se ntence d. Neb. Rev. Stat § 29-4120(5) (1995 & Supp. 2004) (emphas is added). Postconviction DNA testing s tatutes in other sta tes con tain sim ilar prov isions. See supra note 8. V. For purposes of guidance on remand, we now turn to the second issue whether an indigent has any con stitutional or statu tory right to appo inted coun sel at State expense to pursue a petition for postconv iction DN A testing u nder § 8-2 01. We h old that there is no such right to appointed counsel u nder § 8-2 01, either statu tory or constitution al. There is no federal constitutional right to counsel in a postconviction collateral attack on a crimin al conv iction. See Pen nsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed. 2d 539 (198 7); Trimble v . State, 157 Md. A pp. 73, 78, 849 A .2d 83, 85-86 (200 4) (citing Finley for the proposition that a defendant has no righ t to appointed counsel when attacking -23- a conviction that has long since become final upon ex haustion o f the appe llate proces s ). See also State v. Poe, 717 N.W.2d 463, 469 (Neb. 2006) (stating that because Nebraska s postconviction DNA testing act enables petitioners to engage in a collateral attack on a conviction . . . there is not a constitution al right to app ointment o f counse l ); People v. Love, 727 N.E.2d 6 80, 683 (Ill. C t. App. 200 0) (noting th at because the constitutio nal right to counsel applies only during a defendant s trial and first appeal of right, wh ere the defendant moved for foren sic testing long afte r the reso lution o f his trial a nd first a ppeal o f right . . . he had no con stitutiona l right to c ounse l on his m otion ) . Appellant fares no better under the Maryland Constitution. The Maryland Constitution has not hitherto been interpreted to provide a right to counsel in collateral proceedings challengin g a crimina l conviction. Article 21 of the Maryland Declaration of Rights provides th at in all criminal prosecutions, every man hath a right . . . to be allowed counsel . . . This Cou rt has held that Article 21 of the Maryland Declaration of Rights does not afford an y right to couns el which is m ore expan sive than tha t afforded by the Sixth Amen dment. See State v. C ampbe ll, 385 Md. 616, 626 n.3, 870 A.2d 217, 223 n.3 (2005) (stating that the right to counsel provisions in Article 21 are in para m ateria with Sixth Amendm ent); State v. Tichn ell, 306 Md. 428, 440, 509 A.2d 1179, 1185 (1986) (holding that [t]here is no distinction between the right to co unsel gua ranteed by the Sixth Amendment and Art. 21 of the M aryland Declaration of R ights ). -24- Any right to counsel appellant may have under the DNA testing statute must be found in § 8-201. Appellant concedes that § 8-201, the section under which he filed his petition for DNA testing, does not provide explicitly for assistance o f counse l. His sole arg ument is that as an indigent, he is entitled to the appo intment of counsel b ecause of the scientific complex ity of DNA evidence analysis and that the legal procedures authorized by § 8-201 are to o dif ficu lt for a laym an to navigate succ essf ully. The Court of Special Appeals considered a petitioner s right to counsel under the DNA testing statute in Trimble v . State, 157 Md. A pp. 73, 849 A.2d 83 (2004). The c ourt held that no langua ge in the Pu blic Defe nder Ac t, Md. Co de (1957 , 2003 Re pl. Vol.), Art. 27A or in § 8-201 extends the right to counsel to indigent petitioners requesting postconviction DNA testing under Title 8, Subtitle 2 of the Criminal Procedure Article. Trimble , 157 Md. App. at 81, 849 A.2d at 87-88. We agree. The Public Defender Act, Md. Code (1957, 2003 R epl. Vol., 200 6 Cum . Supp.), A rt. 27A § 1 et seq., deta ils the statutory obligations of the Offic e of the Pu blic Defe nder to provide legal representation to indigent persons. In particular, Art. 27A § 4, Duty to Provide Legal Representation, provides in relevant part as follows: (b) Included Proceedings. Legal representation shall be provided indigent defendants or parties in the following proceedings: (1) Any criminal or juvenile proceeding constitutiona lly requiring the presence of counsel prior to presentment before a commissioner or judge; -25- (2) Criminal or juvenile proceedings, where the defendant is charged w ith a serious crime, before the District Court of Maryland, the various circuit courts within the State of Maryland, and the C ourt of Special Appeals; (3) Postconv iction proceedings, when the defendant has a right to coun sel pursuan t to Title 7 of the Criminal Procedure Article; (4) Any other proce eding w here possib le incarceration pursuant to a judicial commitment of individuals in institutions of a public or p rivate nature may result; and (5) As to a parent, a hearing in connection with guardians hip or adoption under Title 5, Subtitle 3, Part II or Part III o f the Fa mily Law Article. Section 7-108 of the Uniform Post Conviction Procedure Act, Right to Counsel and Hearing, provides as follows: (a) In general. Except as provided in subsectio n (b) of this section, a person is entitled to assistance of counsel and a hearing on a petition filed under this title. (b) Exceptions. (1) If a person seeks to reopen a postconviction proceeding under § 7-104 of this subtitle, the court shall determine whether assistance from counsel or a hearing should be granted. (2) If an appeal has been taken from the judgment of conviction to the Court of Special Appeals, until the judgment of conviction becomes final in the Court of Special Appeals, the court ne ed not: (i) appoint co unsel; (ii) hold a hearing; or (iii) act on the petitio n. It is apparent from the plain language of A rt. 27A § 4(b) and the related statutory provisions that the Public Defender Act does not create a s tatutory right to appointed counsel -26- for proceedings under § 8-201. The only provision in Art 27A § 4 arguably applicable is subsection (b)(3), requiring the provision of counsel in postconviction proceedings when the defendant has a right to counsel pursuant to Title 7 of the C riminal Procedure Article. Section 7-108(a) limits the right to c ounse l granted by it to petitio ns file d unde r this title, i.e., petitions filed u nder Title 7 of the C riminal Proc edure A rticle. The righ t to file a petition for postconviction DNA testing, however, is granted by § 8-201(b), located in Title 8 of the Criminal Procedu re Article, no t Title 7. Therefore, we conclude that the Public Defender Act does not provide any right to appointed counsel to pursue a petition for postconviction DNA testing under § 8-201. It is clear that nothing in § 8-201 g rants a petitioner a rig ht to appoin ted couns el to pursue a petition for postconviction DNA testing. How ever appe aling appe llant s argum ents are from a policy perspective, they are unavailing with respe ct to the issue of statutory construction before us. As we have often stated, the cardinal rule of statutory construction is to ascertain and give effect to the intention o f the L egislatu re. See Mackey, 391 Md. at 141, 892 A.2 d at 493; Melton v . State, 379 Md. 471, 476, 842 A.2d 743, 746 (2004). When the language is plain and unambiguous, we give effect to that statute as written, and neither add nor del ete wo rds. Melton, 379 Md. at 477, 842 A.2d at 746. Appellant s remedy is with the Legisla ture, not with this Court. 14 14 In contrast to § 8-201 , many postconviction DNA testing statutes in other jurisdictions provide, in some form, for assistance of counsel. Congress enacted the federal (contin ued...) -27- VI. Appellant s request that we order the Circuit Court to correct his sentence is not properly before this Court, a nd we therefo re declin e to reac h it. A petition for DNA testing under § 8-201 is plainly an inappropriate vehicle to raise an illegal sentence issue. See § 8201(c), (e); Thomp son v. State , ___ Md. ___, ___ A.2d ___, No. 88, S ept. Term 2 005, slip 14 (...continued) Innocence Protection Act of 2004, Pub. L. 108-405, Title IV, § 401 et seq. (2004), providing for postconviction DNA testing for prisoners convicted under federal law and certain state law convictions. See 18 U.S.C. § 3600(a). The Innocence Protection Act contains the following provision relating the appointment of counsel for indigents: Appointment of counsel. The court may appoint counsel for an indigent applicant under this section in the same manner as in a pro ceedin g unde r section 3006A (a)(2)(B ). 18 U.S .C. § 3600(b)(3). 18 U.S.C. § 3006A(a)(2)(B), in turn, provides for appointment of counsel for federal habeas petitioners when a federal court or federal magistrate judge determ ines tha t the inter ests of ju stice so r equire. In addition , man y state post convicti on D NA testin g statutes prov ide e xplicitly for assistance of counsel, either as a matter of righ t or at the discretio n of the court. See Ariz. Rev. Stat. Ann. § 13-4240(E) (2001) (discretionary); Cal. Penal Code § 1405(b)(3) (West 2000 & Supp. 2006) (mandatory if counsel has not previously been appointed under statute, otherwise discretionary); D.C. Code § 22-4 133(e)(2) (2001 & Supp. 2006) (discretion ary); Fla. R. Crim. P. 3.853(c)(4) (discretionary if hearing is held); Haw. Rev. Stat. § 844D-124 (1998 & Supp. 2005) (discretionary at any time in proceed ings, mandatory if a pro se movant shows that DNA testing may be material to the defe ndant s claim of wrongfu l conviction ); Ind. Code Ann. § 35-38-7-11 (LexisNexis 1998 & Supp. 2006) (d iscretionary); Ka n. Stat. Ann. § 21-2512(e) (1995 & Supp. 2002) (discretionary); Me. Rev. Stat. Ann. tit . 15, § 2138(3) (2003 & Su pp. 200 5); Mo . Ann. Stat. § 547.035(6) (West 2002 & Supp. 2006) (mandatory if court orders hearing); N.J. Stat. Ann. §2A:84A-32a(c) (West 1994 & Supp. 2006) (mandatory); N.M. Stat. Ann. § 31-1A-2(D) (LexisN exis 2006) (m andatory, but o nly if petitioner makes initial showing required by subsection (C) of statute) ; N .C. Ge n. Stat. § 15A-269(c) (2005) (manda tory); Tenn. Code Ann. § 40-30-307 (2003) (discretionary); Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon 1979 & Supp. 2006) (mandatory); Va. Code Ann. § 19.2-327.1(H) (2004 & Supp. 2006); W. Va. Code Ann. § 1 5-2B-14 (b) (LexisN exis 2004 & Supp. 2006) (mandatory); Wis. Stat. Ann. § 974.07(11) (W est 1998 & S upp. 2005). -28- op. at ___ (filed ____ __ , 2006) (ho lding that a circ uit court, in entering a DNA testing order under § 8-201(c), is only empowered by § 8-201(e) to enter further orders relating to the DNA testing process). We reject appellant s contention that Md. Rule 4-345(a) gives us the power to order the Circuit Court to correct appellant s sentence if it is illegal. To be sure, Md. Rule 4-345(b) provides that [t]he court may correct an illegal sentence at any time. Nonetheless, the court as used in the Rule refe rs to the trial court that entered the sentence, not this Co urt. See Chertko v v. State, 335 Md. 161, 170, 642 A.2d 232, 236-37 (1994) (explaining that Rule 4-345 expanded the traditional inherent power of a trial court to modify its own judgmen t in criminal ca ses); State v. Ward, 31 Md. App. 68, 76, 354 A.2d 834, 839 (1976) (interpreting predecessor of Rule 4-345(a), and holding that [ t]he court w hich is authorized by [the Rule] to correct an illegal sentence at any time is the trial court ). In addition, appellant did not raise this issue below, and on this basis alone, we find that it is not properly before us. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPIN ION . COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. -29-
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