Clark v. State

• Decision Date: 05 January 1979
• Docket Number: 74 and 75,Nos. 72,s. 72
• Citation: 284 Md. 260,396 A.2d 243
• Parties: Carl CLARK v. STATE of Maryland. Joseph STUTZMAN v. STATE of Maryland. Roger E. PRITCHARD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 260

284 Md. 260

396 A.2d 243

Carl CLARK v. STATE of Maryland.

Joseph STUTZMAN v. STATE of Maryland.

Roger E. PRITCHARD v. STATE of Maryland.

Nos. 72, 74 and 75.

Court of Appeals of Maryland.

Jan. 5, 1979.

Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, Baltimore, on the brief), for Carl Clark.

John W. Sause, Jr., Dist. Public Defender, Centreville (Stefan R. Skipp, Asst. Public Defender, Chestertown, on the brief in No. 74), for Joseph Stutzman and Roger E. Pritchard.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the briefs), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

In Maryland, it is a statutory felony for a person to escape from a place in this State in which he is legally detained or confined. The punishment upon conviction is confinement for whatever additional period, not exceeding ten years, as the court may adjudge, except that for escapes, not involving an assault, from the "Maryland Correctional Institution Hagerstown or the Maryland Correctional Training Center Hagerstown or any juvenile institution," the sentence may not exceed confinement for three years. ¹ The sentence imposed shall be consecutive to the sentence under which the inmate was originally confined and may not be suspended. Maryland Code (1957, 1976 Repl.Vol.) art. 27, § 139(a). ²

Each of the appellants escaped from a place in this State in which he was legally confined. Carl Clark escaped from the Maryland Correctional Camp Center in Anne Arundel County on 19 August 1977. Joseph Stutzman and Roger E. Pritchard escaped from the Eastern Correctional Camp in Queen Anne's County, Stutzman on 1 June 1975 and Pritchard on 21 June 1976. Each of appellants was duly charged, convicted and sentenced to the jurisdiction of the Department of Correction Clark for three months and Stutzman and Pritchard for eighteen months, the sentences to run consecutively to the sentences then being served. Each noted an appeal to the Court of Special Appeals. We ordered the issuance of writs of certiorari before decision by that court.

I

Below, each of appellants sought dismissal of the indictment returned against him on the ground that § 139(a) of art. 27 was unconstitutional as denying equal protection of the laws. ³ Each motion to that end was denied by the respective trial court. The appellants pursued the contention in their briefs on appeal, but in oral argument before us they abandoned the position that the whole of § 139(a) was unconstitutional and focused their attack on the three year exception. ⁴

(1)

Essential to the position that only the three year exception offends the constitutional guarantee is that this part of the statute is severable, and appellants apparently so concede. In any event, we think it clear that it is severable. The first statute proscribing escape was passed on 6 January 1810. Acts 1809, ch. 138, § 32. A lesser penalty for escapes under certain circumstances first appeared by amendment over a hundred and fifty years later. Acts 1963, ch. 157. See State v. Schuller, 280 Md. 305, 318-321, 372 A.2d 1076 (1977); Davidson v. Miller, 276 Md. 54, 83, 344 A.2d 422 (1975); Shell Oil Co. v. Supervisor, 276 Md. 36, 48, 343 A.2d 521 (1975). Compare Wheeler v. State, 281 Md. 593, 607-609, 380 A.2d 1052 (1977), Cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978).

We have serious doubt that appellants have standing to contest the constitutionality only of the three year exception. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, Whenever he receives an injury." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803) (emphasis added). See Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Thus, the general rule is that a person may only assert his own constitutional rights or immunities. McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). "(O)ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). We observed in State v. Cherry, 224 Md. 144, 155, 167 A.2d 328 (1961) that although as a general rule in criminal prosecutions the accused has the right to assert the invalidity of the law under which he is being prosecuted, he must show that his rights are adversely affected by the statute and more particularly that his rights are thus affected by the particular feature of the statute alleged to be in conflict with the constitution, it not being sufficient that the statute may impair the rights of others. To like effect, See Brown v. State, 177 Md. 321, 327, 9 A.2d 209 (1939); State v. Case, 132 Md. 269, 272, 103 A. 569 (1918); Crouse v. State, 130 Md. 364, 371, 100 A. 361 (1917); Parker v. State, 99 Md. 189, 200, 57 A. 677 (1904); Hughes v. State, 14 Md.App. 497, 501, 287 A.2d 299, Cert. denied, 265 Md. 739, Cert. denied, 409 U.S. 1025, 93 S.Ct. 469, 34 L.Ed.2d 317 (1972); Lashley v. State, 10 Md.App. 136, 143-144, 268 A.2d 502, Cert. denied, 259 Md. 733 (1970), Appeal dismissed, cert. denied, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 158 (1971). In other words, a person challenging the validity of a statute on equal protection grounds "cannot rely on theoretical inequalities, or such as do not affect him, but must show that he is himself affected unfavorably by the discrimination of which he complains." Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 55, 46 S.Ct. 375, 376, 70 L.Ed. 827 (1926).

None of the appellants received a sentence which imposed confinement exceeding three years. It is not enough that each of them Might have been sentenced to a term greater than the maximum permitted with regard to an escape from one of the Hagerstown facilities or a juvenile institution. None, in fact, were so punished. Accepting that the statute establishes a favored class of those who escape from one of the Hagerstown facilities or any juvenile institution, none of appellants received a sentence greater than that authorized for such class, so none of them suffered an actual injury. Appellants seek only to strike down a part of the statute which has not affected them adversely, and it may well be that they have no standing to do so. ⁵

(2)

Assuming that appellants have standing to pursue their challenge to the constitutionality of the three year exception, they do not prevail. We see no denial of equal protection of the laws arising from it.

The standard of review applicable here is the "rational basis" test, that is, whether "the classification challenged be rationally related to a legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976). We pointed out in Montgomery Co. v. Fields Road, 282 Md. 575, 579-580, 386 A.2d 344, 346 (1978):

The basic rules which guide a court in applying this test were set down over sixty-five years ago by Mr. Justice Van Devanter for the Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911):

"The rules by which this (equal protection) contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify . . . but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest on any reasonable basis, but is essentially arbitrary."

See cases cited in Fields Road at 580, 386 A.2d 344. We put it concisely in Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 370-371, 104 A.2d 813, 821 (1954), citing Lindsley and Salsburg v. State, 201 Md. 212, 94 A.2d 280 (1953), Aff'd, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954):

(A) classification made by a Legislature is presumed to be reasonable in the absence of clear and convincing indications to the contrary, and the person who assails it has the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.

We made clear in Wheeler, 281 Md. 593, 380 A.2d 1052 that in the light of our prior decisions and especially Aero Motors v. Adm'r, M. V. A., 274 Md. 567, 337 A.2d 685 (1975); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973); Adm'r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 299 A.2d 1 (1973); and Tatelbaum, that the principles enunciated in Lindsley have lost none of their vitality.

In applying the rational basis test to the three year exception, we look first to the nature of the institutions designated in the exception. As we have indicated, the exception first appeared in the escape statute by Acts 1963, ch. 157, in this language:

However, for escapes from the Reformatory for Males which have not involved an assault, the sentence shall not exceed confinement for three years. (Md.Code (1957, 1967 Repl.Vol.) art. 27, § 139.)

A new...