Director, Patuxent Institution v. Cash, s. 287

• Decision Date: 14 June 1973
• Docket Number: Nos. 287,318,s. 287
• Parties: DIRECTOR, PATUXENT INSTITUTION v. Clifton CASH et al. Gerald BOOKER v. STATE of Maryland ex rel. BOARD OF PATUXENT INSTITUTION.
• Court: Maryland Court of Appeals

Page 331

269 Md. 331

305 A.2d 833

DIRECTOR, PATUXENT INSTITUTION v. Clifton CASH et al.

Gerald BOOKER v. STATE of Maryland ex rel. BOARD OF PATUXENT INSTITUTION.

Nos. 287, 318.

Court of Appeals of Maryland.

June 14, 1973.

Henry R. Lord, Deputy Atty. Gen. (Francis B. Burch, Atty. Gen., and Donald R. Stutman, Asst. Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty., and Darrel L. Longest, Deputy State's Atty., respectively, for Montgomery County, Rockville, on the brief), for Director, Patuxent Institution.

Charles F. Morgan, Baltimore (Murray L. Deutchman, Rockville, on the brief), for Cash and others.

Melvin C. Paul, Asst. Public Defender (Alan Hamilton Murrell, Public Defender, Charles Edward Mentzer, Asst. Public Defender, Baltimore, and Bernard F. Goldberg, District Public Defender for Howard County, Ellicott City, on the brief), for Booker.

Donald R. Stutman, Asst. Atty. Gen. and

Henry R. Lord, Deputy Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for the State.

Argued before BARNES, McWILLIAMS, SMITH and DIGGES, JJ., and JAMES C. MORTON, Jr., Special Judge.

BARNES, Judge.

Both appeals, Director, Patuxent Institution v. Clifton Cash et al., No. 287, September Term, 1972, and Gerald Booker v. State of Maryland ex rel. Board of Patuxent Institution, No. 318, September Term, 1972, present the same basic question of whether the reporting provision of Maryland Code (1957, 1971 Repl. Vol.) Art. 31B, § 7(a), as amended by Chapter 491 of the Laws of Maryland of 1971, for persons awaiting examination and evaluation at the Patuxent Institution is mandatory or directory. We have decided to consider both cases together in this opinion. There are, however, additional questions raised in Director, No. 287, which will also require consideration by us in this opinion. We will first give the facts separately in each case, discuss the basic question common to both cases and then consider the additional questions applicable only to Director, No. 287.

FACTS IN DIRECTOR, PATUXENT INSTITUTION v. CASH et al., No. 287

Fifty patients at the Patuxent Institution (Patuxent), between July 10, 1972, and September 15, 1972, filed petitions for the issuance of a writ of habeas coprus (petitions) in the Circuit Court for Montgomery County before Judge Plummer M. Shearin. These petitions alleged in substance that Patuxent had not evaluated the petitioners, pursuant to Art. 31B, § 7(a), within six months of their transfer to Patuxent for examination and that, as a consequence, they were entitled to be removed from Patuxent. On the date the petitions were filed, none of the petitioners had served the sentences imposed upon them for their original criminal convictions.

Of the original 50 petitioners, 12 only had been convicted in the Circuit Court for Montgomery County and referred by that court to Patuxent for diagnosis and evaluation. The remaining 38 petitioners had been referred to Patuxent by the courts in Baltimore City, Prince George's, Baltimore, Frederick, Caroline, Allegany and St. Mary's Counties.

The record is complete with data agreed to by stipulation of the parties, showing for each petitioner the date of conviction, the court, judge, sentence and crime, the date of the order of court for referral to Patuxent, the date the petitioner was received at Patuxent, the date the report in regard to the petitioner was forwarded to the referring court and other proceedings in regard to the petitioner. For example, the petitioner and first-mentioned appellee, Clifton Cash, was convicted on December 23, 1970, in the Circuit Court for Prince George's County for rape and was sentenced to a term of 20 years' imprisonment from March 19, 1970. The order of referral to Patuxent was dated December 23, 1970. Mr. Cash was received at Patuxent on March 23, 1971, and reports in regard to him were filed in the Circuit Court for Prince George's County on May 22 and August 16, 1972.

It would unnecessarily prolong this opinion to set out the data in regard to the remaining 49 petitioners and appellees. We will state, however, that the crimes involved in regard to some (but not all) of the defendants are rape, kidnapping, arson, robbery, forgery and uttering, burglary, robbery with a deadly weapon, sodomy, perverted practice, assault with intent to murder, assault, housebreaking, manslaughter, malicious burning, larceny and petty larceny, storehousebreaking and various attempts to commit some of the crimes listed. The original sentences involved ranged from two years imposed upon the petitioner Charles Johnson in the Circuit Court for Allegany County for assault to 40 years imposed upon the petitioner Albert Stokes in the Circuit Court for Prince George's County for kidnapping and robbery with deadly weapon (4 counts). The majority of the sentences are between 5 to 10 years. Six of the petitions (not including the petitions of any of the petitioners specifically mentioned) were discharged by the lower court during the course of the hearing for various reasons not now important.

The parties entered into a stipulation in the lower court that if the petitioners were called to testify under oath or after affirmation at the hearing on the present petition, they would continue to refuse to engage in a personal interview with any psychologist, psychiatrist, or other Patuxent Institution staff member. In addition, the stipulation stated, in effect: that each of the 44 petitioners was ordered to Patuxent for an examination for possible defective delinquency, pursuant to Art. 31B, § 6(d) of the Maryland Code; that upon arriving at Patuxent, each petitioner was assigned to a cell in the receiving section there; that during that period of time, the psychotherapy, rehabilitative opportunities and vocational training available to persons diagnosed as defective delinquents were not available to the petitioners; that the cost of confinement of a person at Patuxent is not less than $7,994.00 per annum (per capita cost for fiscal 1971) and for confinement in the Division of Correction not more than $5,524.00 per annum (cost for fiscal 1972). The calculations are based on operating costs and do not include capital expenditures.

Paragraphs III and IV of the stipulation are, as follows:

'III. The staff at Patuxent Institution has available to it information ¹

concerning the Petitioner in his base file and in his other records. Certain of this information could be used by the staff in making an evaluation of Petitioner as to whether he is a defective delinquent. With certain exceptions, diagnoses have been attempted on all Petitioners based solely on the information contained in his base file and are attached hereto as Exhibit A and the diagnosis or reasons for failure to make a diagnosis are stated therein.

'IV. There was no adversary hearing prior to the referral of Petitioner to Patuxent Institution for the purpose of determining whether or not he should have been referred for evaluation. The defective delinquent law, Article 31B, does not provide for such a hearing. There was no adversary hearing held within the first six months of Petitioner's confinement at Patuxent Institution to determine if he should continue to be confined for purposes of evaluation.'

Judge Shearin based his comprehensive opinion on an interpretation of Art. 31B, § 7(a), as amended by Chapter 491 of the Laws of 1971, which provides: 'They shall state their findings in a written report addressed to the court, not later than six months from the date said person was received in the Institution for examination, or three months, before expiration of his sentence, whichever first occurs.' He concluded that this language was mandatory and hence the petitioners were entitled to be released from Patuxent and transferred to the Division of Corrections for the service of their original sentences. Judge Shearin also indicated that the Supreme Court of the United States in McNeil v. Director, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) had held unconstitutional a portion of Art. 31B, § 6(e):

'After the court has ordered an examination to be made under this Section, said person shall be retained in custody, initially of the Department of Corrections until his transfer to Patuxent Institution and thereafter in the custody of Patuxent Institution until such time as the procedures of the subtitle for the determination of whether or not said person is a defective delinquent have been completed, without regard to whether or not the criminal sentence to which he was last sentenced has expired.'

He stated that our 'dicta' in State v. Musgrove, 241 Md. 521, 217 A.2d 247 (1966) to the effect that all of Art. 31B, § 6(e) was constitutional and valid had been 'vitiated by the decision of the Supreme Court in McNeil' and that the lower court 'must rely on other sources for assistance in determining the effect of the 1971 Amendments to Article 31B.'

From Judge Shearin's order of October 4, 1972, directing the Director of Patuxent to transfer the named petitioners from Patuxent to the jurisdiction of the Division of Corrections, the Director took a timely appeal to the Court of Special Appeals on October 17, 1972. The Director, on December 6, 1972-prior to briefing and argument in the Court of Special Appeals-filed a petition for the issuance of a writ of certiorari with us, pursuant to Art. 5, § 21B, Chapter 361, Laws of Maryland 1972, to bring the case directly to us for decision. We granted the petition for the issuance of the writ of certiorari on December 12, 1972.

FACTS IN BOOKER v. STATE OF MARYLAND ex rel. BOARD OF PATUXENT INSTITUTION, No. 318

On November 9, 1972, the appellee and plaintiff below, the State of Maryland ex rel. Board of Patuxent Institution, filed a bill of complaint in the Circuit Court for Howard County, in equity, against Gerald Booker, the appellant and defendant below, seeking declaratory relief pursuant to Article 31A of the...