Gee v. State

• Decision Date: 30 July 1965
• Docket Number: No. 450,450
• Citation: 239 Md. 604,212 A.2d 269
• Parties: Samuel GEE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 604

239 Md. 604

212 A.2d 269

Samuel GEE v. STATE of Maryland.

No. 450.

Court of Appeals of Maryland.

July 30, 1965.

George L. Russell, Jr., Baltimore (Richard K. Jacobsen, Baltimore, on the brief), for appellant.

Jon F. Oster, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr., and William T. S. Bricker, State's Atty., and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, SYBERT, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

In this petition for relief under the Post Conviction Procedure Act, the petitioner claims that his commitment to Patuxent Institution as a defective delinquent was illegal because his conviction of statutory burglary, the crime which made his commitment possible under the Defective Delinquency Act, was in violation of his constitutional rights and therefore of itself illegal.

The history of the prior proceedings in which the Appellant was involved is succinctly set forth by the State, as follows:

'The Appellant was convicted of burglary in the Criminal Court of Baltimore on October 9, 1956, and was sentenced to the Maryland Reformatory for Males for three years. The Court also ordered that the Appellant be sent to the Patuxent Institution for study and evaluation under Article 31B of the Annotated Code of Maryland. On March 18, 1957, after a hearing in the Criminal Court of Baltimore, the Appellant was found to be a defective delinquent and was committed to the Patuxent Institution, the balance of his sentence being suspended.

The Appellant received a second hearing as a defective delinquent on December 18, 1958, and he was again found to be a defective delinquent. On May 18, 1961, he filed a petition for a reconsideration of that finding, but the Court dismissed his petition without prejudice.

He received a third hearing as a defective delinquent in the Circuit Court for Baltimore County on November 21, 1962, and was recommitted to the Patuxent Institution as a defective delinquent. He then filed an Application for Leave to Appeal to the Court of Appeals of Maryland which was denied on March 8, 1963. See Gee v. Director of Patuxent Institution, 231 Md. 610, 188 A.2d 565 (1963).

Appellant also filed an Application for a Writ of Habeas Corpus in the United States District Court for the District of Maryland which was denied without prejudice on December 31, 1962.

Thereafter, the Appellant filed a petition for relief in the Criminal Court of Baltimore under the Post Conviction Procedure Act on February 20, 1963. A hearing was held and on September 20, 1963, the Court denied relief and dismissed the petition. On September 24, 1963, the Appellant filed his Application for Leave to Appeal to the Court of Appeals of Maryland from the Order denying him relief and dismissing his petition. On February 10, 1965, the Applicant's Application for Leave to Appeal was granted.'

The State concedes that at his criminal trial in 1956, the Appellant was neither advised of his right to counsel nor provided with counsel. Under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) there is a constitutional requirement imposed upon the State of representation of a defendant by counsel in a case where the defendant has been charged with burglary. Manning v. State, 237 Md. 349, 206 A.2d 563 (1965). Manning also held that Gideon applies retroactively and that a conviction prior to Gideon in which the defendant was not provided with counsel must be vacated. See also Linkletter v. Walker, 85 S.Ct. 1731, 14 L.Ed.2d 601, 614 (1965). Infractions of constitutional rights that may render a criminal conviction a nullity are grounds for relief under the Post Conviction Procedure Act. Simon v. Director, 235 Md. 626, 201 A.2d 371 (1964). See Laird V. Director, 237 Md. 178, 205 A.2d 238 (1964).

The Defective Delinquency Act provides that a request may be made that a person be examined for possible defective delinquency if he has been convicted and sentenced in a court of this State for a crime or offense coming under certain named categories. A misdemeanor punishable by imprisonment in the Maryland Penitentiary is one of the crimes named. Code (1957), Article 31B, § 6. Statutory burglary is such a misdemeanor. If a person has not been convicted of one of the crimes enumerated in Section 6 (or of two of certain offenses not here involved) his commitment as a defective delinquent is illegal. Height v. State, 225 Md. 251, 170 A.2d 212 (1961).

The State contends that because the Appellant's original sentence has expired, the Appellant's detention is only as a defective delinquent; that defective delinquency proceedings are, as we have repeatedly held, civil in nature, involving no issue as to guilt or innocence of any crime of which the person involved has been convicted in the past; and that therefore the question which Appellant raises with respect to his right to counsel is moot. In support of its argument the State relies upon Marshall v. Director, 215 Md. 622, 137 A.2d 661 (1958).

In Marshall, the appellant had filed a petition for a writ of habeas corpus on July 31, 1957, at which time he was being detained in Patuxent Institution pending his trial as to whether or not he was a defective delinquent. He had been convicted of unauthorized use of a motor vehicle and sentenced to one year in the Maryland House of Correction on November 3, 1955. On November 9, 1955, it was ordered that he be transferred to Patuxent Institution for the purpose of examination as to whether he was a defective delinquent. On August 5, 1957, he was tried and found to be a defective delinquent, and was committed to Patuxent on that day. His sentence for his criminal offense had expired, but we held that he was being confined as a result of the order of commitment, and that therefore the question of the legality of his incarceration as of July 31, 1957, when his petition for a writ of habeas corpus was received, was moot. No question of the deprivation of any constitutional rights of the appellant in his original conviction was involved. We held only that the fact that his sentence had been served did not entitled his to the writ because he was being detained under the order committing him as a defective delinquent. Marshall is not in conflict with Height. In Height, as here, the question was whether a commitment as a defective delinquent was legal when a necessary condition of commitment had not been met; in Marshall, it was not the legality of the necessary prior conviction which was in issue, but only the effect of the expiration of the sentence for the offense after a legal commitment as a defective delinquent. The serving of the sentence is immaterial as to the constitutionality of the original conviction, and without a legal conviction, the commitment is invalid whether or not the sentence has been served.

In Simon v. Director, supra, the appellant, committed to Patuxent Institution after a conviction of sodomy, applied for post conviction relief. He alleged, inter alia, that his criminal conviction was the result of an illegal arrest and illegal search and seizure. The court below apparently took the view that the commitment and recommitment to Patuxent precluded attack upon the convictions and sentences the petitioner was not...