Sam Yonga v. State

MOYLAN, J. Non-proof of guilt is by no means proof of innocence. There is a critical, albeit widely neglected, distinction in the criminal law between the status of being procedurally not guilty and the far rarer status of being factually innocent. The presumption of innocence, notwithstanding its grand mellifluence, is simply a package of procedural protections for a defendant going to trial. 1 It would be more semantically modest to call it a presumption of non-guilt. Actual innocence ⁵⁰ is something else again.

Our subject for analysis is the Writ of Actual Innocence. The Case At Hand The appellant, Sam Yonga, was found guilty upon his plea of guilty by Judge Dana Levitz in the Circuit Court for Baltimore County on April 26, 2007 on the charge of a third-degree sexual offense. On May 15, 2013, the appellant filed a petition for a Writ of Actual Innocence pursuant to Maryland Code, Criminal Procedure Article, § 8-301. Following a full evidentiary hearing on December 12, 2013, Judge Sherrie Bailey denied the petition and this appeal followed.

The single contention, precisely as posed by the appellant, is: On the facts of this case, did Appellant sufficiently establish such newly-discovered evidence as to justify granting him a new trial? The two-pronged response of the State leads with a strategic counterattack, broadly challenging the very applicability of the Writ of Actual Innocence to convictions based on guilty pleas. It follows with a tactical defense, focusing in specifically on the ad hoc merits (or lack thereof) of the case at hand. A Generational Mesalliance As of November 3, 2006, Sam Yonga was a 25-year-old man living in Prince George’s County.

He was in a long-term quasi-marital relationship with Emily Williams, the mother of his child. Unfortunately, Yonga was also addicted to the “chat room.” At the other end of his chatting was a 13-year-old girl, who lived with her mother and two younger siblings in an apartment in Baltimore County. On November 3, 2006, they agreed that Yonga would travel to Baltimore and would meet with her in the apartment where she lived, to what end we are not told. The meeting was arranged for a time the victim’s mother would not be home.

It was also decided that the victim would call in sick, in order to be absent from school. The victim later acknowledged to the police that when Yonga first came into the apartment, they kissed and that ⁵¹ there were times when he touched her breasts. She described how she and Yonga then went into her mother’s bedroom and got into bed. She removed all of her clothes.

He removed his pants and his underpants. She further recounted to the police that Yonga first touched her vaginal area with his hand and then attempted penile penetration. At that fortuitous moment the victim’s mother arrived home unexpectedly early. As the victim heard her mother approaching, she and Yonga leaped from the bed.

As the mother walked into her bedroom, she observed her daughter, naked. Yonga below the waist was wearing only a condom. Bedlam ensued. The mother shrieked that she was going to get a knife and cut off his penis.

His exodus, as he grabbed for his trousers, was accordingly precipitate. As Yonga attempted to pull on his pants while running, his cell phone dropped from his pants pocket. Although a tell-tale clue to his identity, he did not pause to pick it up. The mother immediately scrolled through the cell phone and came up with the phone number of Yonga’s mother.

She dialed that number and informed the mother of what had taken place. Yonga’s mother provided the victim’s mother with Yonga’s name, phone number, and address, all of which were ultimately passed on to the Baltimore County Police. The mother first took her daughter to a “local clinic” where she asked for an examination for STDs (sexually transmitted diseases). The victim also received a Depo-Provera shot, “which would be a birth control implant.” She then called the Baltimore County Police.

Detective Jessica Hummel of the Sex Offense Unit took charge of the investigation. When she ultimately made telephone contact with Yonga, he claimed to have no idea why the detective was calling and insisted that he had never been in Baltimore County. When Detective Hummel probed further, Yonga hung up. A day later and after a three-hour stand-off, Yonga was arrested in Prince George’s County and was transported to Baltimore County.

After being Mirandized, he agreed to give Detective Hummel a statement. He initially denied ever ⁵² having been in Baltimore County and denied having any knowledge of the victim. He ultimately admitted, however, that he had met a girl on a chat line who told him that she was 19 years of age. He further admitted that he met with her in Baltimore County and went with her to her home, although he insisted that they never actually went into the house.

He claimed that they were still on the porch when a woman came out of the house screaming. At that point, he deemed it discreet to flee. Yonga was charged under a two-count criminal information, the first count charging a second-degree rape, involving sexual intercourse with a 13-year-old girl, and the second count charging a third-degree sexual offense, involving sexual contact. Pursuant to a plea bargain, the State nolle prossed the charge of second-degree rape.

In return, Yonga entered a plea of guilty to the charge of a third-degree sexual offense. All of the facts above recounted are taken from the agreed statement of facts offered by the State in support of the guilty plea. When Judge Levitz asked if there were “any additions, corrections, or modifications to those facts?” Yonga’s counsel replied: MR. FATEMI: I think Madame State has properly went over what allegedly happened, just the fact that he never went in the house and in the statement he stated that he did not have sex.

(Emphasis supplied). On June 4, 2007, Judge Levitz, pursuant to the plea bargain, sentenced Yonga to a term of 364 days incarceration at the Baltimore County Detention Center with all but six months suspended and with no term of probation. A Dramatic and Diametric Change of Heart Six years passed uneventfully by and this had, indeed, become a very cold case. Yonga had finished serving his six months at the Baltimore County Detention Center years before.

He was, moreover, not on probation. ⁵³ Notwithstanding their earlier problems emanating from the chat room, however, neither Yonga nor his victim could resist the lures of telecommunication. They resumed a conversational relationship on Facebook and soon became good friends. According to her later statements, the victim was shocked to learn that Yonga had earlier been found guilty of a crime, a crime which she now was ready to swear had never happened. She claimed not to know that he had even been prosecuted.

The victim’s mother, once brought into the loop, apparently felt the same latter-day sympathy. The victim and Yonga together went to defense counsel’s office and informed him of “the miscarriage of justice” which they stated had occurred. On May 15, 2013, Yonga filed his Petition for a Writ of Actual Innocence pursuant to Maryland Code, Criminal Procedure Article, § 8-301 and Maryland Rule 4-332. A full evidentiary hearing on the petition was heard by Judge Sherrie Bailey on December 12, 2013.

At the conclusion of the hearing, Judge Bailey ruled: After careful consideration and review of the transcript as well as the police reports submitted and the testimony and argument presented before the Court, most respectfully, [Defense Counsel], your request is denied. There are simply too many inconsistencies. The transcript indicates that this young lady was given a Depo-Provera shot at the clinic that she was taken to, there are too many details. It just defies comprehension.

While, I do sympathize with the immigration issues and while I do understand what is patently obvious that [the victim] and the [her mother] clearly are attempting to do, most respectfully I don’t believe a word that they said today. It just — they just — they’re trying to help Mr. Yonga, quite honestly, and that’s very patently clear. (Emphasis supplied). This appeal has followed.

The Writ of Actual Innocence As a new addition to the ranks of postconviction reviews, the Writ of Actual Innocence was enacted by Chapter 744, § 1, of ⁵⁴ the Acts of 2009. It became effective as of October 1, 2009, and is now codified as Maryland Code, Criminal Procedure Article, § 8-801. Its substantive thrust is contained in subsection (a). (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.

(Emphasis supplied). That law is implemented by Maryland Rule 4-332. Its essential content is set out, in pertinent part, in subsection (d): (d) Content of petition. The petition shall be in writing, shall be signed by the petitioner or the petitioner’s attorney, and shall state: (3) each offense of which the petitioner was convicted, the date of the judgment of conviction, and the sentence imposed; (4) if the judgment was appealed, the case number in the appellate court, a concise description of the issues raised in the appeal, the result, and the date of the appellate court’s mandate; (7) a description of the newly discovered evidence, how and when it was discovered, why it could not have been discovered earlier, and, if the issue of whether the evidence could have been discovered in time to move for a new trial pursuant to Rule 4-331 was raised or decided in any earlier ⁵⁵ appeal or postjudgment proceeding, the identity of the appeal or proceeding and the decision on that issue; (8) that the newly discovered evidence creates a substantial or significant possibility, as that standard has been judicially determined, that the result may have been different, and the basis for that statement; (9) that the conviction sought to be vacated is based on an offense that the petitioner did not commit.

(Emphasis supplied). The first opinion to explore in any detail the Writ of Actual Innocence was Douglas v. State, 423 Md. 156 , 31 A.3d 250 (2011). As its secondary holding, Douglas , established that if a petition for a Writ of Actual Innocence satisfies the pleading requirements, an actual hearing on the motion is mandatory. The primary holding of Douglas v. State was that the denial of a petition for a Writ of Actual Innocence is a final judgment which may be immediately appealed.

Chief Judge Krauser’s opinion for this Court in State v. Seward, 220 Md.App. 1 , 102 A.3d 798 (2014), completed the appealability cycle as it held that a grant of a Writ of Actual Innocence is equally appeal-able by the State. “[W]e are impelled to conclude that a right of appeal from a decision on an actual innocence petition must be a bilateral right of appeal.” In terms of first recognizing the new Writ of Actual Innocence, Douglas v. State was preceded by State v. Matthews, 415 Md. 286 , 999 A.2d 1050 (2010). Matthews , to be sure, began as and essentially remained a case involving a Motion for New Trial under Rule 4 — 331(c). The opinion for the Court of Special Appeals in its Matthews v. State, 187 Md.App. 496 , 979 A.2d 198 (2009), holding inter alia that the new trial motion in that case had not been timely filed, came out before the Writ of Actual Innocence was yet on the books. By the time the Court of Appeals filed its opinion, however, the Writ of Actual Innocence had been made available.

The Court of Appeals opinion held that even an untimely new trial motion under Rule 4-331(c) might still outflank the filing deadline by morphing into the new and closely related Writ of Actual ⁵⁶ Innocence, if the writ’s other conditions were satisfied. “In conclusion, we hold that Matthews’s motion [for a new trial] may be treated on remand as a Petition for Writ of Actual Innocence under Section 8-301 of the Criminal Procedure Article.” 415 Md. at 312 , 999 A.2d 1050 . In Keyes v. State, 215 Md.App. 660 , 84 A.3d 141 (2014), the petition for a Writ of Actual Innocence was properly denied where the newly discovered evidence was only of an impeaching character. In Jackson v. State, 216 Md.App. 347, 369 , 86 A.3d 97 (2014), newly discovered evidence that the State’s ballistics expert had lied about his academic credentials may have been pertinent to impeach his credibility but was not material to the issue of Jackson’s actual innocence. Hawes v. State, 216 Md.App. 105 , 85 A.3d 291 (2014), was an appeal from a denial of a petition for a Writ of Actual Innocence.

The denial was affirmed, but under the closely related framework of analysis that the petitioner had failed to show that the newly discovered evidence could not have been timely discovered in time to file for a new trial pursuant to Rule 4-331(c). Criminal Procedure Article, § 8-301(g) should also be carefully noted: (g) Burden of proof. — A petitioner in a proceeding under this section has the burden of proof. Douglas v. State, 423 Md. at 188 , 31 A.3d 250 was also very clear that in granting or denying a petition for a Writ of Actual Innocence, the appellate courts will apply to the trial judge’s decision the abuse of discretion standard: [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. (Emphasis supplied).

See also Miller v. State, 380 Md. 1, 28 , 843 A.2d 803 (2004); Jackson v. State, 216 Md.App. 347, 363 , 86 A.3d 97 (2014). ⁵⁷ The Writ’s Unique Feature: Actual Innocence Is Different From Procedural Error The key difference between a general Motion for New Trial under Rule 4 — 331(c)(1) and a petition for a Writ of Actual Innocence is in the substantive nature of the thing that the newly discovered evidence must show. Assuming that both satisfy the required burden of persuasion that the new evidence “creates a substantial or significant possibility that the result may have been different,” there still remains a major qualitative difference. For a new trial generally under Rule 4 — 331(c)(1), it is enough that the newly discovered evidence expose procedural flaws in the trial that denied the petitioner due process of law. That would be enough to grant a new trial generally.

That would not be enough, however, to grant a Writ of Actual Innocence. As the Supreme Court noted in Bousley v. United States, 523 U.S. 614, 623 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998); “ ‘[Ajctual innocence’ means factual innocence, not mere legal insufficiency.” An actually guilty person may, as readily as an actually innocent person, suffer due process violations. To have one’s conviction reversed because of a non Mirandized confession or an unreasonable search and seizure does not thereby make one actually innocent. Most defendants who suffer such violations are, indeed, not actually innocent.

That sorry reality is why the newly discovered evidence that might expose grave procedural and even constitutional error is still subject to the one-year filing deadline of Rule 4 — 331(c)(1). There is a limit to the law’s procedural compassion. Due process even for the guilty is one of the law’s moral principles. Even moral principles, however, are relative.

Due process for the guilty, albeit highly valued, is not as relatively pressing a concern as in the vindication of those who are actually innocent. The chance to prove actual innocence, therefore, by contrast to procedural error, is not inhibited by a filing deadline. Although we care for due process, we care even more for actual innocence. As the obvious bridge between the new trial motion based on newly discover ⁵⁸ ed evidence, and the Writ of Actual Innocence, both of the more recent additions to Rule 4-331(c), to wit, (c)(2) dealing with capital punishment cases and (c)(3) dealing with DNA, eliminate the one-year filing deadline but both require that the newly discovered evidence point toward actual innocence.

Origins in the DNA Revolution Courts and Judicial Proceedings Article, § 8-301, did not, like Athena from the brow of Zeus, spring full-blown into existence on October 1, 2009. Its seeds had been germinating for fully ten years. Its words, therefore, may not be parsed in a vacuum. To understand the new Writ of Actual Innocence law, one must understand the direct lineal antecedent that produced it.

The unquestioned precursor was the revolution in forensic investigation resulting from the rapidly evolving science of DNA identification. Beginning in the 1980’s, DNA’s investigative sweep far outranged that of fingerprinting and its conclusions were recognized as yielding scientific certainty. The growing recognition of its sure-fire identification potential, in cold cases long after the fact, hit a sensitive national nerve, especially with respect to death penalty cases. Within less than 20 years, a rivulet became a torrent.

The sensitive social problem was that the imposition of capital punishment was irrevocable. It posed for many in the wide-ranging national debate the anguished question, “How can we be sure we have not executed an innocent person?” The concern was not with executing someone who might have been procedurally not guilty. Fifty years of the Warren Court Revolution provided all the reassurance we needed on that score. The concern was with actual, factual innocence.

John M. Leventhal, “A Survey of Federal and State Courts’ Approaches to a Constitutional Right of Actual Innocence,” 76 Alb. L. Rev. 1453 , 1454 (2002-2013) (“Judge Leventhal”), posed the critical question: Should a defendant convicted of a capital offense and sentenced to death, who was not deprived of any constitutional right at trial be executed, when the defendant was actually innocent? Should any defendant who suffered no ⁵⁹ other violation of a constitutional right and received a fair trial remain incarcerated when the defendant is actually innocent? [ 2 ] Maryland passed in 2001 what is now Criminal Procedure Article, § 8-201, providing for a convicted defendant’s right to apply for and be guaranteed court-ordered DNA testing under certain circumstances. See Comment, “Clearly Erroneous: The Court of Appeals of Maryland’s Misguided Shift to a High Standard for Post-Conviction DNA Relief,” 71 Md. L. Rev. 886 (2012) (“Clearly Erroneous”); Comment, “Innocence and Incarceration: A Comprehensive Review of Maryland’s Post-conviction DNA Relief Statute and Suggestions For Improvement,” 42 U. Balt.

L.F. 65 (Fall 2011) (“Innocence and Incarceration”). There is no question that Maryland’s first DNA statute was aimed at facilitating the exoneration of those convicted defendants who were actually innocent of the crime for which they had been convicted. Blake v. State, 395 Md. 213, 219 , 909 A.2d 1020 (2006), set out the purpose of the new statute: 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 actually innocent. (Emphasis supplied).

Gregg v. State, 409 Md. 698, 715 , 976 A.2d 999 (2009), re-affirmed that narrow and specific purpose: Section 8-201 is also a remedial statute, as its purpose is to provide a remedy for persons convicted of serious crimes of which they are actually innocent. (Emphasis supplied). See also Thompson v. State, 411 Md. 664, 679 , 985 A.2d 32 (2009). The leitmotif of “actual innocence” resonates throughout the caselaw.

Criminal Procedure, § 8-201 was primarily concerned with the right to require DNA testing and with various technologi ⁶⁰ cal problems associated with that testing. It remained to be seen, however, what the courts would do with the test results. What the Court of Appeals and the Rules Committee did initially was to expand Maryland Rule 4-331 (c) dealing with a Motion for New Trial based on newly discovered evidence. The original version of the rule with its one-year filing deadline was placed in subsection (c)(1).

In 1997 subsection (c)(2) had earlier been added, eliminating the one-year filing deadline for cases where the death penalty had been imposed. To accommodate the new DNA phenomenon, subsection (c)(3) was then added on November 1, 2001. The Motion for New Trial could be “filed at any time if the newly discovered evidence is based on DNA identification testing.” In State v. Matthews, 415 Md. at 305 , 999 A.2d 1050 , Judge Battaglia explained: In 2001, we again amended Rule 4,-331(c) to permit a motion for new trial “at any time, ” under specified circumstances, for a defendant who alleges newly discovered DNA evidence.... Our decisions to remove the filing deadlines in strictly enumerated cases make sense only under the assumption that we had regarded the one year time limit otherwise required in Rule 4-331 (c) as imposing a hard deadline.

(Emphasis supplied). Significantly, the new subsection (c)(3) also provided that the test results, if proved, would have to “show that the defendant is innocent of the crime of which the defendant was convicted.” (Emphasis supplied). Aprocedurally flawed trial was not enough. Actual innocence was the sine qua non for the removal of the filing deadline.

Once it was accepted that a claim of actual innocence based on the use of DNA technology could be used to challenge enrolled convictions without any filing deadline, a second wave of reform developed for the closely related proposition that any newly discovered proof of actual innocence should also be permitted to do so, whether based on DNA technology or on any other equally persuasive evidentiary source. As Chief Judge Krauser observed in State v. Seward, 220 Md.App. at 15 n. 10, 102 A.3d 798 : ⁶¹ [T]he legislative materials suggest that the actual innocence statute was conceived, by its proponents, as a means to extend the relief afforded under the DNA postconviction statute to those for whom DNA evidence was unavailable. (Emphasis supplied). Although it took eight years to take the step, it was still just a short step from Maryland Rule 4 — 331(c)(3) to Criminal Procedure Article, § 8-301.

Both dealt with motions for a new trial without a filing deadline based on newly discovered evidence. The newly discovered evidence in the first case was DNA identification evidence that could prove the defendant “innocent of the crime.” The newly discovered evidence in the second case was evidence of “actual innocence.” But for that element of innocence, the Motion for a New Trial would still have been subjected to the one-year filing deadline of Rule 4-331(c)(1). In terms of its essential character, the new Writ of Actual Innocence law is but a minor variation of Rule 4-331. The Burden of Persuasion Is Not the Probandum In one sense, the somewhat awkward arrangement of § 8-301 has created an unfortunate possibility for confusion.

The substantive object that has to be asserted and then supported by an adequate show of proof is set out in the very wording of the subtitle — “Petition for writ of actual innocence” — and then again in describing what the petition seeks, to wit, “a writ of actual innocence.” In then reciting what the petition must claim, however, subsection (a) seems to take the element of actual innocence for granted as it further provides that [a] person ... 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[.] (Emphasis supplied). A hasty or careless reading of that passage in a vacuum could lead the unwary to the erroneous conclusion that the petition for the writ may assert any newly discovered ⁶² evidence that “creates a substantial or significant possibility that the result may have been different.” That is not only not the case; it is absurd. The words, in a vacuum, could be taken to refer to procedural flaws in the trial as well as to cases of actual innocence. The words, however, have a limiting context that is only several lines away.

What the petition must show is newly discovered evidence that the petitioner is actually innocent. The “substantial or significant possibility that the result may have been different” is simply the weight or level of persuasion that the newly discovered evidence of actual innocence must possess in order to justify the issuance of the writ. A mere bald assertion of actual innocence or some highly speculative or unsupported claim of actual innocence is not enough to justify the granting of a writ. The claim must be substantial enough for the hearing judge to conclude that there may, indeed, be a plausible case of actual innocence.

A careless reading of the awkward wording, however, could readily lead to the mistaken belief that the mere quantitative expression of the necessary level of persuasion is the substantive or qualitative thing that the writ is all about. It is not. With respect to new trial motions based on newly discovered evidence generally the test that “substantial or significant possibility that the result may have been different” is indisputably recognized as the required level of persuasion. This persuasive test is something that the Writ of Actual Innocence and the rest of Rule 4-331(c) have in common.

It is not a thing that sets them apart. It is only an adjectival qualifier. It is not the thrust of the writ. If this were not so, if the mere level of required proof were ipso facto the ultimate thing to be proved, there would be no difference between the Writ of Actual Innocence, with no filing deadline, and Rule 4-331(c)(l), with a one-year filing deadline.

That is obviously not the case. With an effective date of October 1, 2011, the Court of Appeals, with the assistance of the Rules Committee, promulgated a new rule, Rule 4-332, to implement the Writ of Actual Innocence statute. Whereas the statute itself, as we have been discussing, was somewhat awkwardly worded, Rule 4- ⁶³ 332 is perspicuously clear. Subsection (d) lists the required contents of the petition for the writ.

Subsections (d)(8) and (d)(9), unambiguously in the conjunctive, list respectively both the level of persuasion of the newly discovered evidence (8) and the ultimate substantive fact of actual innocence (9): (8) that the newly discovered evidence creates a substantial or significant possibility, as that standard has been judicially determined, that the result may have been different, and the basis for that statement; (9) that the conviction sought to be vacated is based on an offense that the petitioner did not commit [.] (Emphasis supplied). Even if the new statute was awkwardly worded, its very title should resolve any ambiguity. As Judge (now Chief Judge) Barbera noted in Douglas v. State, 423 Md. at 176 , 31 A.3d 250 : C.P. § 8-301 provides a defendant an opportunity to seek a new trial based on newly discovered evidence that speaks to his or her actual innocence, as evident from the title of the statute itself (Emphasis supplied). The very title of § 8-301 as a “Petition for writ of actual innocence” prominently proclaims its purpose.

As Judge Harrell told us in Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514 , 814 A.2d 469 (2002), to interpret a statutory provision, we must view it “as a whole, and as part of the larger statutory scheme.” It is “well settled” that “the title of an act is relevant to the ascertainment of its intent and purpose." Id. at 555 , 814 A.2d at 493 (quoting MTA v. Baltimore County Revenue Authority, 267 Md. 687 , 695-96, 298 A.2d 413 (1973)) (emphasis supplied). It is also of interpretive significance that § 8-301 is codified as a part of Subtitle 3 dealing with “Newly Discovered Evidence.” The required level of persuasion for newly discovered evidence to make a decisive difference is by no means the same ⁶⁴ as the thing that the newly discovered evidence is offered to prove, although a careless reading of Criminal Procedure Article, § 8-301 might conflate the two. The burden of persuasion is not the probandum. This then is the Writ of Actual Innocence, what it is and what it is not.

The Writ of Actual Innocence Is Not Available To Challenge a Conviction Based Upon a Guilty Plea We fully agree with the State’s broad strategic challenge that the Writ of Actual Innocence was never designed to challenge a conviction based on a guilty plea. A defendant cannot with one breath 1) agree to enter a guilty plea and to accept the benefits of a conviction based on that guilty plea and 2) seek to vacate that very conviction by claiming that he is actually innocent of the crime. 3 In Metheny v. State, 359 Md. 576, 599-600 , 755 A.2d 1088 (2000), the Court of Appeals has given us a definitive statement of what the very entering of a guilty plea says about the defendant’s formally acknowledged criminality. A guilty plea “is an admission of conduct that constitutes all the elements of a formal criminal charge. ” “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” Indeed, “ ‘[a] plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need [be] advanced....

It supplies both evidence and verdict, [thus] ending [the] controversy.’ ” Once ⁶⁵ accepted, a guilty plea amounts to a conviction and the only remaining tasks for the court to perform are to impose judgment and conduct sentencing proceedings. The fact that no jury or bench trial is conducted does not make a guilty plea any less functional as a conviction. (Emphasis supplied; citations omitted). A Writ of Actual Innocence contemplates a petitioner who has properly been found guilty of a crime by the verdict of a jury (or judge sitting as a jury) after a trial on the merits.

A Writ of Actual Innocence would invalidate such a trial verdict. Even a finding of actual innocence would not, on the other hand, negate a validly entered guilty plea. A conviction by a trial verdict and a conviction based on a guilty plea are fundamentally different phenomena and may not casually be equated with each other. There is, moreover, a logical disconnect in using a Writ of Actual Innocence to try to invalidate a guilty plea.

A conviction following a trial embodies the core finding that the defendant actually committed the crime. A Writ of Actual Innocence proceeds on the opposite assumption that the convicted defendant did not commit the crime. These two antithetical findings are incompatible. The latter logically negates the former.

A valid guilty plea, on the other hand, is not necessarily incompatible with actual innocence. A guilty plea may only be reversed by a showing either that it was not voluntary or that it was not knowledgeable or that it was not supported by an adequate statement of its factual basis. If a guilty plea is both voluntary and knowing, it will not be invalidated by proof of actual innocence. There is a logical disconnect between a conviction following a trial and actual innocence.

They should not coexist. There is, however, no such necessary disconnect between a conviction based on a voluntary and knowing guilty plea and actual innocence. For a variety of reasons, they may coexist. The appellant can point to no case or academic authority countenancing the use of a Writ of Actual Innocence to deconstruct a valid guilty plea.

He simply takes it for granted. We do not. ⁶⁶ Even were the facts that are alleged by a petitioner for a Writ of Actual Innocence available to that defendant within 30 days of the judgment of conviction based on a guilty plea, the defendant could not take an appeal challenging his guilty plea based on those facts. Courts and Judicial Proceedings Article, § 12-302(a)(2) squarely provides: Section 12-301 of this subtitle does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sought by application for leave to appeal.

(Emphasis supplied). See Bruno v. State, 332 Md. 673, 688 , 632 A.2d 1192 (1993) (“By pleading guilty ... a defendant forfeits any right to a direct appeal, and ordinarily waives all non-jurisdietional defects in the proceedings.”); McElroy v. State, 90 Md.App. 48, 54 , 599 A.2d 1215 (1992); Ward v. State, 83 Md.App. 474, 478-79 , 575 A.2d 771 (1990); Boone v. State, 56 Md.App. 8, 9 , 466 A.2d 66 (1983). We consider this prohibition on using an appeal from a trial as an avenue for challenging a guilty plea, which does not involve a trial, as similarly prohibiting the use of a petition for a Writ of Actual Innocence to challenge a guilty plea. As Professor Medwed, supra, pointed out at 666, “From the outset, motions for a new trial were normally filed with the original trial judge who presided over the case.” (Emphasis supplied).

Rule 4-332(b) expressly provides that an “action for a writ of actual innocence is commenced by the filing of a petition in the court where the conviction took place.” As Ruby v. State, 353 Md. 100, 111 , 724 A.2d 673 (1999), points out: [Pjetitioner’s original criminal trial, subsequent motion for new trial, and the belated appeal of the denial of petitioner’s last Motion for New Trial all were part of the criminal case. (Emphasis supplied). The Comment “Innocence and Incarceration,” supra at 93-94, was firm in its conclusion. ⁶⁷ To have DNA testing ordered in Maryland, a petitioner must show a reasonable probability that testing will produce exculpatory evidence. Under most circumstances, the facts alleged in a petition for postconviction relief will necessarily, in part, be drawn from the trial record.

However, when there was a guilty plea, there is no detailed trial record, no witness testimony, and often there is only a minimal factual investigation on the part of the State and defense counsel. Thus, both the defense’s factual quest to establish innocence as well as the State’s attempt to refute innocence are hindered by the inherent gaps available in evidence in cases in which the petitioner pled guilty. Petitions stemming from a conviction following a guilty plea should thus be denied. (Emphasis supplied).

See also J.H. Dingfelder Stone, “Facing the Uncomfortable Truth: The Illogic of Post-Conviction DNA Testing for Individuals Who Pleaded Guilty,” 45 U.S. F.L. Rev. 47, 50-51 n. 18-20 (2010) (discussing the merits of allowing offenders to challenge, through post-conviction DNA testing, convictions to which they pled guilty). A petition for a Writ of Actual Innocence seeks a new trial. A guilty plea, however, was not a trial. There cannot be a new trial when there has never been an old trial.

A guilty plea is simply not a part of the trial process. The appellant points to no case where a Motion for New Trial has been used to challenge the validity of a guilty plea. The Testing Mechanism Will Not Work on a Guilty Plea In the case of a request for a new trial based on newly discovered evidence of actual innocence, moreover, the universally applied method for gauging the substantiality of the claim is impossible to apply in the case of a guilty plea. In assessing the impact of newly discovered evidence, the court must look at the original trial in front of the original jury and then hypothesize submitting the newly discovered evidence to that original jury.

It must then ask, in the precise words of Rule 4-432(d)(8), whether “the newly discovered evidence ⁶⁸ creates a substantial or significant possibility ... that the result may have been different.” 4 There is, however, no way to compare the trial that was with the trial that might have been when there was no trial that was. Where there was no trial, it would be utter speculation to attempt to construct what the imaginary trial might have consisted of. We may not hypothesize a mythical trial. The statement of facts offered in support of the guilty plea is only minimalist.

A State’s Attorney’s Office going before a jury would almost certainly opt for a more maximal case of guilt. We do not know, therefore, what witnesses would have been called or what, under direct and cross-examination, they might have said. We do not know whether the appellant would or would not have testified and, if he did testify, how his testimony would have held up. We do not know what medical reports might have been submitted.

There would be self-evidently no way to make the prescribed comparison. Newly discovered evidence simply cannot be measured in the case of a conviction based on a guilty plea. With what cast of characters, moreover, would we people our hypothetical testing? Do we ask whether the hypothetical jury that might have rendered a guilty verdict after a hypothetical trial would probably have rendered a different verdict?

Or do we ask, as in this case, whether Judge Levitz would still have accepted ⁶⁹ the guilty plea? These are very different questions. The criteria for rendering a trial verdict and the criteria for accepting a guilty plea are not remotely the same. In every newly discovered evidence case, including newly discovered DNA evidence or other newly discovered evidence of actual innocence, there is a universally recognized procedure for measuring the persuasive weight of such newly discovered evidence.

That is the “before and after” test. We first look at the evidence of guilt before the jury at the trial that led to the conviction. We then look at the newly discovered evidence. The acid test is to ask whether, if that jury had had the benefit of the newly discovered evidence as well as the evidence that was before them, would there be “a substantial or significant possibility that the result would have been different?” There is no way that such a test can be applied, however, to a conviction based on a guilty plea rather than upon a trial.

The minimalist statement of facts offered in factual support of a guilty plea is no equivalent of or substitute for an actual trial. It was never intended to be. Generally speaking, we have no firm idea what the proof of guilt might have been that the jury might have heard because there was no jury and there was no trial. Would the State have mounted an “all out” strong prosecution or simply have put on an adequate prosecution?

That could make a big difference. The answer might, of course, depend not simply on the availability of the evidence but upon such other imponderables as the adequacy of the staffing of the State’s Attorney’s Office at a given moment, the depth of the State’s Attorney’s budget at a given moment, or upon how busy or unbusy the Office was with other cases on its agenda at a given moment. Might the State, in a case such as this, have mounted a full-scale effort and hired expert computer technicians to retrieve the text of the chatting between Yonga and his victim? Such a text may not have been critical to the actus reus of rape, which may have been interrupted in the nick of time by the victim’s mother.

It could have been both revealing and devastating, on the other hand, as to Yonga’s mens rea. It is not unheard of, moreover, where the actus ⁷⁰ reus is ambiguous enough that it could reasonably tilt in either direction, that a damning mens rea could nudge an unsympathetic jury in a given direction. At such a purely hypothetical trial, moreover, might Yonga have invoked his right to silence? Under the facts of this case, such silence could have been fatal, whatever the Fifth Amendment instruction might be about not using his silence against him.

Or if Yonga had taken the stand, how might he have stood up against rigorous and sustained cross-examination? We cannot know any of this and that is why the newly discovered evidence cannot possibly be measured against an unknown antecedent. Guilty pleas simply do not lend themselves to newly discovered evidence analysis. We would have no standard to measure the newly discovered evidence against.

Q.E.D. Indeed, at the hearing before Judge Bailey, counsel for Yonga attempted to measure his newly discovered evidence against a trial that never was. The attack on a non-existent trial was surrealistic: [DEFENSE COUNSEL]: ... You have certainly some other things I think that the Court can consider the absence of. Number one, there is no physical evidence in this case whatsoever.

The condom that was apparently used has never been brought out. There is no SAFE exam in this case. [The Prosecutor] intimated during cross-examination of ... the victim’s mother, that they had regular conversations, however, we have nothing in evidence. There’s no notes, no entries in the State’s file indicating, hey, you know, I talked to the victim’s mom today. The victim said she — certainly at 13, she’s not an infant.

Certainly in the normal course a 13-year-old victim would meet with the prosecutor, would talk to the prosecutor. Oftentimes they are brought to court ahead of time to show this is what the courtroom looks like. You may have to take the stand to testify. There’s some pre-litigation preparation that is done with witnesses of that age.

We have no evidence of that. You ⁷¹ have no evidence before you whatsoever that there was even a single conversation with anyone from the State’s Attorney’s Office. There are no records subpoenaed from the supposed clinic visit or family doctor visit that [The Prosecutor] says — I mean, it’s in the police report, but the State is insistent that these hospital or doctor visits happened. There are no records that were mentioned in the police report that was written in 2006.

There’s certainly no records that were introduced on the day of the plea, and there’s absolutely no records that were introduced today to indicate there was, in fact, a medical visit. (Emphasis supplied). Of course, there was nothing “in evidence.” Counsel seemed oblivious to the fact that there was no trial. He analyzed a trial that never was.

The guilty plea was not a trial; nor was it supposed to be. A statement of supporting facts can take three minutes. The trial could take three days. There is no way the latter can fit into the former, nor should there be.

We agree with the State that a Writ of Actual Innocence is not an appropriate vehicle to challenge a conviction based on a guilty plea. There would be no way to assess such a challenge. The Impregnability of Guilty Pleas To the Merits of Guilt or Innocence A guilty plea is in a world of its own as a short-cut procedural modality for producing a criminal conviction, frequently as a result of plea bargaining. Post-conviction review of a guilty plea is similarly in a world of its own.

It is concerned not with the admissibility or the sufficiency of the evidence or with the satisfaction of the Bill of Rights. Its very different concerns are voluntariness, knowledgeability, and the supporting statement of facts. Unless and until the guilty plea is overturned, moreover, it stands as an insurmountable barrier to a plea of actual innocence. It is a formal and binding acknowledgment of guilt and is incompatible with a protestation of actual innocence. ⁷² Our core understanding of a guilty plea is found in the Supreme Court decision of Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969).

The Supreme Court was there emphatic about what an accepted plea of guilty represents. A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. 395 U.S. at 242 , 89 S.Ct. 1709 (emphasis supplied). The Supreme Court went on, id. at n. 4, to point out that the quantity and quality of the evidence, original or newly discovered, is not an issue. A plea of guilty is more than a voluntary confession made in open court.

It also serves as a stipulation that no proof by the prosecution need be advanced. It supplies both evidence and verdict, ending controversy. (Emphasis supplied; citations omitted). Several constitutional rights are waived when a plea of guilty is entered.

Among them are 1) the privilege against compelled self-incrimination; 2) the right to trial by jury; and 3) the right to confront one’s accusers. 395 U.S. at 243 , 89 S.Ct. 1709 . In emphasizing the protections that should be safeguarded by the trial judge in taking a guilty plea, the Supreme Court clearly implied that if those protections are, indeed, afforded, a conviction based on a guilty plea should thereby be “insulated from attack.” If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offense for which he is charged and the permissible range of sentences. 395 U.S. at 244 n. 7, 89 S.Ct. 1709 (emphasis supplied; citations omitted). ⁷³ A post conviction petitioner of any sort must successfully challenge his guilty plea before he is free to raise other issues which the unchallenged guilty plea may have waived. One does not, moreover, challenge a guilty plea merely by implication. Pleading remains a legal requirement.

Yonga in this case, for instance, has not, either in his petition for a Writ of Actual Innocence or at the hearing on that petition, challenged the validity of his guilty plea. That guilty plea is the elephant in the room that cannot be ignored, but he ignores it. For the binding nature of an unchallenged plea of guilty, Boykin v. Alabama relied upon the Supreme Court’s earlier decision in Kercheval v. United States, 274 U.S. 220, 223-24 , 47 S.Ct. 582 , 71 L.Ed. 1009 (1927): A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive.

More is not required.... Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. (Emphasis supplied).

In McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970), the Second Circuit Court of Appeals had, in a habeas corpus case, invalidated a guilty plea because it had been triggered by the defendant’s confession which the defendant originally thought would be introduced against him but which had since been deemed unconstitutional by intervening Supreme Court law. The Supreme Court reversed. It posed the question before it: The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plea guilty to save himself the expense and agony of a trial and ⁷⁴ perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea?

We think not if he alleges and proves no more than this. 397 U.S. at 767-68 , 90 S.Ct. 1441 (emphasis supplied). A mistaken guess about the admissibility of a confession will not invalidate a guilty plea: A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State’s being permitted to use the confession as evidence is sufficient to convince him that the State’s case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant’s plea, as distinguished from his confession, is an involuntary act.

His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable. 397 U.S. at 769 , 90 S.Ct. 1441 (emphasis supplied). A misassessment of the strength of the State’s case, even if defense counsel is responsible for the misassessment, will not invalidate a guilty plea. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court.

Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to