Gluckstern v. Sutton, No. 107

• Court: Maryland Court of Appeals
• Writing for the Court: Argued before MURPHY; ELDRIDGE; On the following day, in the course of an unrecorded oral conversation among Judge DeWaters, counsel for Mr. Sutton, and an assistant state's attorney who had been representing Dr. Gluckstern; Phillips; In the present
• Citation: 574 A.2d 898,319 Md. 634
• Docket Number: No. 107
• Decision Date: 01 September 1988
• Parties: Norma GLUCKSTERN v. Richard Lee SUTTON. ,

Page 634

319 Md. 634 574 A.2d 898 Norma GLUCKSTERN
v.
Richard Lee SUTTON. No. 107, Sept. Term, 1988. Court of Appeals of Maryland. June 7, 1990.

[574 A.2d 899]

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Evelyn O. Cannon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Emory A. Plitt, Jr., Asst. Atty. Gen. and Omar Melehy, Staff Atty., on brief), Baltimore, for petitioner.

Witold J. Walczak (Legal Aid Bureau, Inc., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL ^*, JJ.

ELDRIDGE, Judge.

This habeas corpus case presents issues relating to the timeliness of the petitioner's notice of appeal, the right of the petitioner to take an appeal, and the ex post facto clauses of the Maryland and federal constitutions. ¹ The ex post facto issue concerns the retroactive application of statutory changes in the requirements for parole from the Patuxent Institution.

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I.

The underlying facts and pertinent statutory background are as follows.

A.

On March 5, 1974, in the course of a heated argument at the home of his estranged wife's parents, Richard Lee Sutton killed both of his wife's parents with a handgun. On January 10, 1975, in the Circuit Court for Baltimore County, Mr. Sutton was convicted on two counts of first [574 A.2d 900] degree murder and two counts of using a handgun in the commission of a felony or crime of violence. He was immediately sentenced to two concurrent terms of life imprisonment for the murders and two concurrent terms of twelve years imprisonment for the handgun offenses, although the twelve year sentences were to be consecutive to the life sentences.

Also on January 10, 1975, the circuit court found that there was reasonable cause to believe that Mr. Sutton was a defective delinquent, and the court ordered that he be delivered to the Patuxent Institution for examination pursuant to Maryland Code (1957, 1971 Repl.Vol.), Art. 31B. ²

The circuit court on July 17, 1975, following a hearing, found that Mr. Sutton was a defective delinquent within the meaning of Art. 31B, § 5, of the Code as it then read. The court ordered that Mr. Sutton be

"committed to Patuxent Institution for confinement as a defective delinquent for an indeterminate period, without either maximum or minimum limits, and the balance of

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his sentence is hereby suspended and the defendant shall remain in the custody of Patuxent Institution subject to the provisions of Article 31B of the Annotated code of Maryland."

B.

Both when Sutton's offenses occurred in 1974, and when he was committed to the Patuxent Institution in 1975, commitments to Patuxent were, as the above-quoted order indicates, for indeterminate periods without maximum or minimum limits and without regard for the length of the sentences initially imposed upon the criminal convictions. A defendant, found to be a defective delinquent and committed to Patuxent, was "no longer ... confined for any portion of said original sentence." Code (1957, 1971 Repl.Vol.), Art. 31B, § 9. ³ For example, a person might be sentenced to a ten year term of imprisonment for a particular offense, but, if he were thereafter committed to Patuxent Institution, he might remain confined for more than ten years and, possibly, for the rest of his life.

On the other hand, the Institutional Board of Review of the Patuxent Institution could parole at any time an inmate serving the indeterminate sentence if the Board found that parole was for the inmate's benefit and the benefit of

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society. Code (1957, 1971 Repl.Vol., 1975 Cum.Supp.), Art. 31B, § 13(d). ⁴ There was no requirement that the Board's decision in favor of parole be approved by any other person or entity.

[574 A.2d 901] In 1974 and 1975, an inmate not committed to Patuxent Institution and serving a life sentence at one of the institutions under the control of the Division of Correction was subject to an entirely different procedure with regard to parole. Such person serving a life sentence was not eligible "for parole consideration until he shall have served fifteen years or the equal of fifteen years when considering the allowances for diminution of period of confinement provided for in Article 27, § 700 and Article 27, § 638C...." Code (1957, 1978 Repl.Vol.), Art. 41, § 122(b). The initial decision with respect to his parole was made by the Maryland Board of Parole which, in 1976, was renamed the Maryland Parole Commission. Code (1957, 1978 Repl.Vol.), Art. 41, §§ 108, 110, 115. When an inmate was serving a life sentence, his parole not only had to be authorized by the Board of Parole but also was required to be approved by the Governor. Code (1957, 1978 Repl.Vol.), Art. 41, § 122(b). These provisions concerning the parole of persons committed to the Division of Correction and serving life sentences, including the requirement of gubernatorial approval, are substantially the same today. See Code (1957, 1986 Repl.Vol., 1989

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Cum.Supp.), Art. 41, §§ 4-504, 4-516. ⁵

Article 31B of the Code, relating to Patuxent Institution, was entirely re-written by Ch. 678 of the Acts of 1977. Judge Orth for the Court in Watson v. State, 286 Md. 291, 298-299, 407 A.2d 324 (1979), explained the reasons for the changes as follows:

"Complaints [about Art. 31B], however, did develop, and criticism intensified as the years passed. Dissatisfaction was not with the objectives of the law but with their fulfillment.... [M]any persons found serious fault with the dictate that the defective delinquent was to be confined 'for an indeterminate period without either maximum or minimum limits,' and that '[i]n such event, the sentence for the original criminal conviction, or any unexpired portion thereof, shall be and remain suspended,' so that the defective delinquent would remain in the custody of Patuxent Institution. § 9(b). Thus, it was not unusual for a person to remain in confinement long after his original sentence had expired.

"The mounting criticism ultimately spurred legislative action. The Defective Delinquent Law was repealed by Acts 1977, ch. 678, effective 1 July 1977. The entire concept of the former law was not entirely abandoned, however. A new Article 31B was enacted, entitled 'Patuxent Institution.' The institution was retained 'to provide efficient and adequate programs and services for the treatment and rehabilitation of eligible persons.' § 2. ' "Eligible person" means a person who (1) has been convicted of a crime and is serving a sentence of imprisonment with at least three years remaining on it, (2) has an intellectual deficiency or emotional imbalance, (3) is likely to respond favorably to the programs and services provided at Patuxent Institution, and (4) can be better

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rehabilitated through those programs and services than by other incarceration.' § 1(g)."

Probably the most significant change brought about by the 1977 re-writing of Art. 31B was the abolition of the indeterminate sentence concept. Under Code (1957, 1976 Repl.Vol., 1978 Cum.Supp.), Art. 31B, § 11(a), as enacted by Ch. 678 of the Acts of 1977, "[a] person confined at the [Patuxent] Institution shall be released upon expiration of his sentence in the same manner and subject to the same conditions as if he were being released from a correctional facility."

One aspect of the pre-1977 law concerning Patuxent Institution was not substantially changed by Ch. 678 of the Acts of 1977. The Institutional Board of Review of Patuxent Institution retained the exclusive authority to parole a Patuxent inmate, including one serving a life sentence. There [574 A.2d 902] was no requirement that the Board's decision to parole a Patuxent inmate serving a life sentence be approved by the Governor or by anyone else. ⁶

Ch. 678 of the Acts of 1977, as amended in the course of its progress through the General Assembly, was expressly made retroactive to apply to one in Mr. Sutton's position. By operation of the statute, Mr. Sutton's original life and twelve year sentences were "reimposed." He was, however, retained at Patuxent Institution. See Code (1957, 1976 Repl.Vol., 1978 Cum.Supp.), Art. 31B, § 16(b). ⁷ The

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1977 change in Mr. Sutton's sentence, from an indeterminate sentence to the reimposition of sentences of life imprisonment plus twelve years, by itself probably had little or no effect upon his prospects for parole. The reason for this, as pointed out previously, is that the 1977 statute made no substantial change in the requirements for parole from the Patuxent Institution, regardless of whether the sentence was for life or was indeterminate.

The requirements for parole from Patuxent Institution were, however, changed by Ch. 588 of the Acts of 1982. This statute added a sentence to Art. 31B, § 11(b)(2), relating to paroles by the Institutional Board of Review of Patuxent Institution, stating as follows: "An eligible person who is serving a term of life imprisonment shall only be paroled with the approval of the Governor." Similar language was also added to what is now Art. 41, § 4-516(b)(4). ⁸

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Unlike Ch. 678 of the Acts of 1977, Ch. 588 of the Acts of 1982 contained no express language concerning the statute's applicability to persons who were confined at Patuxent Institution prior to July 1, 1982, which was the effective date of Ch. 588. The legislative history of Ch. 588, contained in the file of the Department of Legislative Reference, is also silent on this question. Patuxent Institution and the Governor have apparently administered the statute as if it were applicable to persons whose Patuxent confinement began prior to July 1, 1982. In the instant case, both sides and the circuit court have proceeded upon the assumption that Ch. 588 was intended by the General Assembly to apply to Mr. Sutton and others whose Patuxent confinement pre-dated the statute. Under this assumption, the combined effect of the 1977 statutory change, reimposing a life sentence...