Angell v. Henneberry

• Decision Date: 01 September 1991
• Docket Number: No. 1905,1905
• Citation: 607 A.2d 590,92 Md.App. 279
• Parties: Robert Daly ANGELL v. Joseph HENNEBERRY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 279

92 Md.App. 279

607 A.2d 590

Robert Daly ANGELL v. Joseph HENNEBERRY, et al.

No. 1905, Sept. Term, 1991.

Court of Special Appeals of Maryland.

June 2, 1992.

Dana Whitehead (Gerald R. Walsh on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart M. Nathan, Asst. Atty. Gen., on the brief), Baltimore, for appellees.

Argued before WILNER, C.J., and BISHOP, and ALPERT, JJ.

WILNER, Chief Judge.

The legal issue before us in this appeal is simple and straightforward. Appellant, Robert Angell, has been an inmate at Patuxent Institution since August, 1977. ¹ In 1990, the authorities at Patuxent decided that he should not remain there any longer and proposed to transfer him to the jurisdiction of the Division of Correction for placement in one of its institutions. Under internal procedures followed by Patuxent and, as we shall hold, under the "due process" clause of the Fourteenth Amendment, Angell is entitled to a hearing to determine whether he should be transferred. The sole question is whether he is entitled to the assistance of counsel at that hearing. Although the record before us gives us great concern over the manner in which Mr. Angell has been treated by Patuxent, our conclusion is that he is not entitled to counsel at that hearing.

The Facts

Angell came to Patuxent as the result of a number of crimes that he committed during the period August, 1975-- March, 1976, when he was 17-18 years old. In August, 1975, he stole a shotgun from a house that he burglarized. Later that month, he shot and killed a young boy with the gun; why he did that is not revealed in the record before us. In March, 1976, he used the gun to rob a bank and, in an ensuing attempt to elude capture, he shot and killed two Montgomery County police officers. Convicted subsequently in the Circuit Court for Montgomery County of three counts of first degree murder, he was sentenced to three consecutive sentences of life imprisonment, the trial judge suggesting at the time that Angell should "never be considered for parole." Notwithstanding the judge's comment, Angell would be eligible for parole in the year 2010.

At the time Angell was sentenced, Patuxent was governed by the Defective Delinquency law as set forth in art. 31B of the Md.Code (1976 Repl.Vol.). A person could be admitted to that institution only after conviction of a crime and upon a finding by a judge or jury that he was a "defective delinquent," as defined in the law. Upon such a finding, the finite sentence imposed by the criminal court was suspended in favor of an "indeterminate" sentence, i.e., the prisoner remained at Patuxent until either the institution or another court or jury determined that he was no longer a defective delinquent, in which event he would be released from confinement. Although most inmates resisted admission to Patuxent because of that indeterminate sentence, those with extraordinarily long sentences, such as Angell's, sometimes looked favorably upon Patuxent because of the prospect that they could be released well before they would likely be paroled or serve their original finite sentence in one of the prisons operated by the Division of Correction. By order of the Circuit Court for Montgomery County, Angell was sent to Patuxent in September, 1976 for evaluation to determine whether he met the definition of a defective delinquent.

While Angell was undergoing his evaluation, the General Assembly made a number of significant changes in the law governing Patuxent. See 1977 Md.Laws, ch. 678, rewriting art. 31B in its entirety. The concept of defective delinquency, and with it the indeterminate sentence, was repealed, and Patuxent was recast more as a treatment facility designed to rehabilitate inmates who could benefit from the program and were willing to cooperate with the treatment staff than as a warehouse for persons too incorrigible to be released back into society. Admission was available only to an "eligible person," defined as one who (1) was serving a sentence with at least three years remaining on it, (2) had an intellectual deficiency or emotional imbalance, (3) was likely to respond favorably to the programs and services provided at Patuxent, and (4) could be better rehabilitated through those programs than by other incarceration. See art. 31B, § 1(f); Watson v. State, 286 Md. 291, 298-99, 407 A.2d 324 (1979).

Pursuant to the transition provisions in the 1977 Act, Angell was evaluated in accordance with the new criteria and was accepted as an eligible person. In the ensuing years, he made much progress, receiving his G.E.D., completing various trade courses, and, in 1986, receiving his grade 1 stationary engineer's license. His work in the power plant was rated as good to excellent. In 12 years, he had but two infractions--one in November, 1976 for possessing a "carved" bar of soap that was regarded as contraband and one in 1984 for referring to a guard as "ugly." He had been on the "fourth level"--the level of highest progress--since 1979. Because of the nature of his crimes, however, and the publicity they had engendered at the time, his requests for leave days were denied until April, 1988. ² At that time, accepting the treatment unit's conclusion that Angell was "no longer a danger to society and should begin a slow, gradual and structured re-entry into the community," the Institutional Board of Review, charged under the law with making such decisions, granted him a series of 15 day-long leaves, during which he was allowed to leave the institution and spend the day with his family. This action was taken in the face of a 1987 amendment to art. 31B, presumably prospective only in application, excluding from the definition of "eligible person" a person, like Angell, who was serving two or more life sentences for murder. The leave days, taken during the period from April 9 to November 5, 1988, were without incident; no record exists of any misbehavior or violations on Angell's part.

Unfortunately for Mr. Angell, his leave status and that of other Patuxent inmates coincided with a number of wholly extraneous events that led to a significant reshaping of the Patuxent program. One of those events was the Presidential campaign of 1988 in which one Willie Horton became a household name and a symbolic object of great alarm. Another, feeding on the first, was the conduct of Patuxent inmate James Stavrakas, who, emulating Horton, escaped from a work release detail and was charged with raping a woman. Those events subjected the institution's leave and work release programs to immediate and heightened public scrutiny. On November 29, 1988, the Police Association of Montgomery County filed suit against the then-director of Patuxent seeking an order requiring that the institution's leave policy be suspended, that Angell's leave status in particular be cancelled, and that Angell's eligibility to remain at Patuxent be reevaluated. Shortly thereafter, Secretary of Public Safety and Correctional Services Bishop L. Robinson was widely quoted as being openly critical of Patuxent's leave program. As a result of an ex parte order entered in the lawsuit and pressure brought to bear on the institution, the leave program was administratively suspended in December, 1988, and the institution's director eventually resigned. ³

More permanent changes were made by the General Assembly in its 1989 session. By 1989 Md.Laws, chs. 6 and 7, both the governing structure and the programs of Patuxent were substantially revised. The Board of Review, which decided such things as leave status, parole, and continued participation in the Patuxent program, was reconstituted, and victims were given the right to comment on proposed leave status and parole. Moreover, in an uncodified section 5, the Acts required that, before reinstituting the work release and leave programs at Patuxent, the Secretary of Public Safety and Correctional Services had to review the status of each eligible person who had been on work release or had leave status to determine whether the inmate was a threat to public safety. In a new section 4 added to art. 31B, the Secretary was directed to adopt regulations to carry out the provisions of the article. Except for regulations "pertaining only to routine internal management of the Institution," those regulations were to comply with the Administrative Procedure Act (APA). The new Acts, declared to be emergency measures, took effect on March 20, 1989, when signed by the Governor.

Under the 1977 law, the director of the institution was authorized, but not directed, to adopt regulations. Although nothing was said then in art. 31B about compliance with the APA, it seems clear that a regulation adopted by the director was subject to and had to comply with the Act. See State Gov't art., § 10-101(e), defining "regulation," and § 10-102, setting forth the scope and applicability of the law. Nonetheless, in 1985 the director issued a number of regulations dealing with the procedure for reviewing the status of eligible persons without complying with the Act. The most glaring omission is that they were not published in either the Maryland Register or in COMAR, as required by §§ 10-114 and 10-117; nor is there any indication that they were submitted to and approved by the Attorney General, as required by § 10-107. One of those regulations, identified as PIR No. 240-1, was designed "[t]o establish the duties and powers of the Institutional Board of Review to the extent allowed by law." It required, in pertinent part:

"A. Annual Review--The Board of Review shall review the eligibility status of each eligible person at least once each year, and shall find either that the E.P. remains eligible or notify the E.P. that his eligibility for the treatment program will be reconsidered at the next Board of Review session for his unit, at which time the E.P. may be returned to the Division of...