Kisselovich v. Director, Patuxent Inst.

• Decision Date: 15 April 1976
• Docket Number: No. 863,863
• Citation: 31 Md.App. 293,356 A.2d 293
• Parties: Joseph KISSELOVICH v. DIRECTOR, PATUXENT INSTITUTION.
• Court: Court of Special Appeals of Maryland

Page 293

31 Md.App. 293

356 A.2d 293

Joseph KISSELOVICH v. DIRECTOR, PATUXENT INSTITUTION.

No. 863.

Court of Special Appeals of Maryland.

April 15, 1976.

Leonard C. Redmond, III, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Donald R. Stutman, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Ralph M. Murnett, State's Atty. for Garrett County and James L. Sherbin, Asst. State's Atty. for Garrett County on the brief, for appellee.

Argued before ORTH, C. J., and LOWE and MELVIN, JJ.

ORTH, Chief Judge.

REMOVAL IN DEFECTIVE DELINQUENT PROCEEDINGS

(1)

The defective delinquents law was enacted by ch. 476, Acts 1951, to take effect on 1 July 1952. ¹ It created an institution for defective delinquents known as the Patuxent Institution, now a part of the Department of Public Safety and Correctional Services. Code, Art. 27, § 1. The General Assembly was concerned about those persons who had been convicted and sentenced in a court of this State for certain serious crimes, and who, although responsible for their criminal conduct, had evidenced a propensity toward criminal activity demonstrated by persistent aggravated antisocial or criminal behavior and had either such intellectual deficiency or emotional imbalance, or both, as to demonstrate clearly an actual danger to society so as to require confinement and treatment apart from the incarceration for the conviction of the substantive offenses. A person found to be a defective delinquent shall be confined at Patuxent until it is reasonably safe for society that he be released. Thus, his commitment to Patuxent is for an indeterminate period without either maximum or minimum limits. Code, Art. 31B, §§ 5, 6 and 9.

The defective delinquents statute is carefully structured to provide protections, both substantive and procedural, for the accused. The protections encompass the entire proceedings, starting with the request for examination as to possible defective delinquency-s 6, and extending through examinations-s 7, hearings-s 8, review-s 10, and appeal-s 11. One of the most important safeguards is that the ultimate determination of defective delinquency vel non shall be by a judicial proceeding. ² The trial on the issue of defective delinquency shall be in the court having custody of or jurisdiction over a person alleged to be a defective delinquent. In a county that court is the circuit court, and in Baltimore City it is the Criminal Court of Baltimore. ³

The circuit courts of Maryland are courts of general jurisdiction. Courts Art. § 1-501. Defective delinquent proceedings are civil in nature. Austin v. Director, 245 Md. 206, 211, 225 A.2d 466 (1967); Mastromarino v. Director, 244 Md. 645, 649, 224 A.2d 674 (1966); Director v. Daniels, supra, 243 Md. at 32, 221 A.2d 397; Blizzard v. State, 218 Md. 384, 386-390, 147 A.2d 227 (1958). But, although '. . . the courts which hear defective delinquency proceedings are courts of general jurisdiction, they become courts of special or limited jurisdiction whenever they proceed to determine (with or without the aid of a jury) the status of persons alleged to be defective delinquents. In such cases, the courts instead of exercising their inherent powers are limited to the power and authority conferred on them by the provisions of Article 31B. A court can be a court of general jurisdiction for some purposes and a court of limited jurisdiction for other purposes. When therefore a court of general jurisdiction proceeds under a special statute it becomes a court of limited jurisdiction for the purpose of such proceeding. * * * Accordingly, where a court of general jurisdiction undertakes to carry out a special power, a decision made in the exercise of such power is treated as a ruling of a court of limited jurisdiction and the presumption, applicable to a court of general jurisdiction, that it acted within the scope of its jurisdiction does not apply.' Austin, 245 Md. at 209, 225 A.2d at 467. That a circuit court is a court of limited jurisdiction when conducting defective delinquent proceedings was recognized and applied by the Court of Appeals in Austin in holding that the hearing court could not grant a new trial, and in Bullock v. State, 230 Md. 280, 286, 186 A.2d 888 (1962) in holding that it could not grant a removal for trial. This court, on the same rationale, has held that the circuit court could not order an interim redetermination of defective delinquency, State v. Reichman, 16 Md.App. 581, 585-586, 298 A.2d 487 (1973) or place a defective delinquent under a work release program, State v. Blackney, 8 Md.App. 232, 238, 259 A.2d 100 (1969). See Wilson v. State, Md.App., 355 A.2d 752, filed April 14, 1976.

(2)

On 6 March 1974 Joseph Kisselovich appeared in the Circuit Court for Garrett County and pleaded guilty to charges of storehouse breaking and grand larceny. The pleas were accepted and verdicts entered accordingly. On 15 March he was sentenced to imprisonment for a period of 10 years on each conviction, the sentences to run concurrently. The court ordered that he be transferred to Patuexent for examination as a possible defective delinquent. Under date of 3 July the Director of Patuxent reported that it was the opinion of the staff that Kisselovich was a defective delinquent. Hearing to determine his status as required by law was set. On 3 December 1974 Kisselovich filed a 'Suggestion for Removal', 'in accordance with Maryland Rules 738 and 542', alleging that he 'does not feel that he will be able to receive a fair and impartial hearing in Garrett County, because his extensive prior criminal behavior will have an undue influence on the local passion, prejudice, or interest of a jury selected from Garrett County.' The same day the court issued an order removing the case to the Circuit Court for Allegany County for trial. On 18 June 1975 the Circuit Court for Allegany County sent the case back to the Circuit Court for Garrett County. It ordered that the order of 3 December 1974 'granting a removal of this case, is hereby revoked' and that 'this case be returned to the Circuit Court for Garrett County, Maryland, for further proceedings.' The order returning the case gave as reason that the 'said removal was granted without a hearing under the mistaken belief that the Defendant had an absolute right of removal . . ..'

Trial on the matter of the defective delinquency of Kisselovich proceeded in the Circuit Court of Garrett County before a jury on 8 September 1975 over objection to the return of the case from Allegany County. The jury found that he was a defective delinquent, and he was committed to Patuxent the same day. He applied for leave to appeal from the order. We granted the application on 14 October 1975, and ordered that the case be transferred to the regular appeal docket. Rule 1094 § c.

(3)

One of the contentions that Kisselovich presents is: 'The trial court's denial of removal of the case to another court of competent jurisdiction deprived (him) of due process of law and equal protection of the law.' He appreciates that Bullock v. State, supra, held that there was no right to removal in a defective delinquent proceeding, but he asks us to look at the matter in the light of Davidson v. Miller, 276 Md. 54, 344 A.2d 422, decided 18 September 1975. the Court held in Davidson, at 82, 344 A.2d at 439, that 'the portion of Article IV, section 8, which reads 'and in all suits or actions at law, issues from the Orphans Court, or from any court sitting in equity' and the other language relating to this . . . (as well as the language in Rule 542 relating thereto) is unenforceable so long as the present multiple civil common law court system exists in Baltimore City.' We said in Firstman v. Atlantic Construction and Supply Company, 2, Md.App. 285, 290-291, 345 A.2d 118, 122 (1975): 'The effect of the holding was, in the words of Chief Judge Murphy in his dissent, 'to excise all those provisions from § 8 of Art. IV of the Constitution of Maryland which afford litigants in civil law cases an automatic right of removal to another court upon mere suggestion in writing, under oath, that a fair and impartial trial cannot otherwise be obtained. . . . '' Davidson hastened to point out, however, 276 Md. at 83, 344 A.2d at 439: 'The effect of this ruling . . . will in no way deprive or otherwise curtail the circuit courts to the counties or the circuit-level civil law courts of Baltimore City from exercising their common law discretionary power (which is subject to appellate review for abuse) to remove an action to another jurisdiction, within or without the circuit, in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached; thus, as near as is reasonably possible, an action's consideration by a fair and impartial jury can be insured.' Kisselovich argues, therefore, that Bullock is not dispositive. It teaches only that no right of removal was given by the defective delinquent statute: 'The statute not only affords no right of removal, but, on the contrary, clearly negates any inference that a removal was ever contemplated.' 230 Md. at 286, 186 A.2d at 891. The rationale was that '(a)lthough the Legislature lacks authority to enact a law restricting or limiting the right of removal, it nevertheless has the power to extend the right by legislative enactment . . . so long as the enactment does not conflict with the Constitution.' Id., at 285, 186 A.2d at 891. The Legislature had simply not extended the right of removal to defective delinquent proceedings. Bullock, Kisselovich maintains, does not speak to the common law right of removal indicated by Davidson. ⁴ He urges that the common law right should apply. The contention is simply resolved. The inherent power under the common law to remove an action, which Davidson suggests vests in a circuit court in the exercise of its general...