Guy v. Director, Patuxent Inst.

• Decision Date: 05 January 1977
• Docket Number: No. 5,5
• Citation: 367 A.2d 946,279 Md. 69
• Parties: Lee GUY v. DIRECTOR, PATUXENT INSTITUTION. Misc.
• Court: Maryland Court of Appeals

Page 69

279 Md. 69

367 A.2d 946

Lee GUY v. DIRECTOR, PATUXENT INSTITUTION.

Misc. No. 5.

Court of Appeals of Maryland.

Jan. 5, 1977.

Leonard C. Redmond, III, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Donald R. Stutman, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore on the brief), for appellee.

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

MURPHY, Chief Judge.

The appellant instituted a habeas corpus proceeding in the United States District Court for the District of Maryland, contesting the legality of his transfer from the Maryland Correctional Institution at Hagerstown to the Patuxent Institution, pursuant to an order of the Circuit Court for Anne Arundel County, dated October 22, 1975. The District Court certified the following question of law for our consideration pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974) Courts and Judicial Proceedings Article, § 12-601 et seq.: 'May an individual who has served a portion of his criminal sentence within the Division of Correction be referred to Patuxent Institution for evaluation by court order as a result of a request by the prosecuting State's Attorney based upon information available to the prosecutor at the time of conviction and sentencing?'

The record shows that on December 6, 1973, appellant was convicted of unlawfully manufacturing and possessing explosives and was sentened to five years' imprisonment. He escaped from confinement on April 28, 1974. After being apprehended, appellant was convicted of the crime of escape on October 31, 1974 and ultimately sentenced to six months' imprisonment, to run consecutively with his earlier five-year sentence. No suggestion was made during either sentencing proceeding that appellant should be referred to Patuxent Institution for diagnostic evaluation to determine whether he was a defective delinquent within the contemplation of the Maryland Defective Delinquent Law, Code (1957, 1976 Repl.Vol.) Art. 31B. A petition was, however, filed on April 3, 1975 by the State's Attorney for Cecil County to refer appellant to Patuxent for such an evaluation; that petition was held to be defective on jurisdictional grounds, as was a similar petition filed on June 6, 1975 by the State's Attorney for Anne Arundel County. A third petition filed by the State's Attorney for Anne Arundel County, based upon knowledge of appellant's two convictions, was granted on October 22, 1975 and appellant was referred to Patuxent for diagnostic evaluation.

Section 6 of Art. 31B provides that a request may be made to examine a person for defective delinquency if he has been convicted of criminal offenses falling within certain specified categories. Section 6(b) provides that the request for examination may be made 'by the Department of Correction or by the State's attorney . . . who prosecuted the person for a crime or offense specified hereinabove in this section, on any knowledge or suspicion of the presence of defective delinquency in such person.' Section 6(c) entitled 'When requests may be made' provides that an examination for defective delinquency 'may be requested and made at any time after the person has been convicted and sentenced . . . provided that the said person has been sentenced to a period of confinement in a penal institution or is then serving such a sentence. No such examination shall be ordered or made if the said person has been released from confinement for the particular crime or offense of which he was convicted or who is within six months of the expiration of his sentence.' (emphasis supplied)

Appellant contends that the legislative history of Art. 31B reveals an intention on the part of the General Assembly to preclude a State's Attorney from requesting an examination for defective delinquency once the convicted offender has started to serve his criminal sentence. He argues that the legislature intended to so limit the authority of the State's Attorney since he maintained a jurisdictional interest in the...