McCloskey v. Director of Patuxent Institution, 42

• Decision Date: 28 January 1963
• Docket Number: No. 42,42
• Citation: 230 Md. 635,187 A.2d 833
• Parties: James G. McCLOSKEY v. DIRECTOR OF the PATUXENT INSTITUTION.
• Court: Maryland Court of Appeals

Page 635

230 Md. 635

187 A.2d 833

James G. McCLOSKEY v. DIRECTOR OF the PATUXENT INSTITUTION.

No. 42.

Court of Appeals of Maryland.

Jan. 28, 1963.

Before HENDERSON, HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HENDERSON, Judge.

The applicant seeks leave to appeal from an order committing him to Patuxent Institution on September 20, 1962, pursuant to a jury's finding that he was a defective delinquent. The principal points raised relate to the delay in bringing him to trial, which he claims to have deprived him of a Constitutional right to a speedy trial and to demonstrate the incompetence of the counsel who had been appointed to represent him on March 11, 1959, and who represented him at the trial below.

The applicant was convicted of assault and battery in the Circuit Court for Cecil County on September 16, 1958, and sentenced to three years in the House of Correction. Because of his prior record, he was committed to Patuxent for examination, and a report to the court was made on February 18, 1959. On April 5, 1959, some fifteen days before the date set for the hearing, he escaped from Patuxent. He was apprehended in Pennsylvania, where he was charged with the Federal offense of transporting a stolen vehicle across state lines, convicted and committed to the Federal prison at Lewisburg, Pennsylvania, where he remained until the end of 1961. He was then returned to Patuxent. In March, 1962, he was tried in Howard County on escape charges and sentenced to two years at the House of Correction. A hearing on the issue of defective delinquency, still pending in Cecil County, was scheduled and had on September 20, 1962.

The applicant does not challenge the reasonableness of the delay in bringing him to trial in 1959, which was due, in part, to a petition for habeas corpus he filed in proper person with Judge McLaughlin prior to the date set for trial on April 20 1959, and by his escape from Patuxent. The gravamen of his complaint is the refusal of the State to heed his request for a trial in 1960, while he was confined in the Federal penitentiary at Lewisburg. He was informed by the State's Attorney at that time that he would be tried upon his release. He asserts that he wrote a letter to the Attorney General of the United States, and received a reply from the Director of Federal Prisons stating that the applicant was 'available for trial in a State Court.' He charges that the State was obliged to make a request for his release for trial, and that if it had done so the Federal authorities would have complied. He also complains that in July, 1962, after his conviction on the escape charge (which he does not attack in this proceeding), he wrote to his counsel requesting a hearing on the defective delinquency issue, yet trial was not had until September. This delay was not unreasonable, since a jury was not available until September. Cf. Reddick v. State, 219 Md. 95, 99, 148 A.2d 384

The right to a speedy trial in a criminal case, where the accused is incarcerated in Maryland upon a prior conviction, was assumed in Harris v. State, 194 Md. 288, 71 A.2d 36, although it was there held that the right was not seasonably demanded and hence waived. Where the accused is serving a sentence in a Federal Prison in another State, the authorities are divided. Some courts hold that even where the Federal authorities agree, as a matter of comity but not as a matter of right, to release or procure a prisoner for trial in a State Court, the State authorities are not required to seek such release or production. See Ex parte Schechtel, 103 Colo. 77, 82 P.2d 762, 118 A.L.R. 1032 and cases collected in 118 A.L.R. 1037. See also Kirby v. Warden, 214 Md. 600, 602, 133 A.2d 421; Baker v. Marbury, 216 Md. 572, 574, 141 A.2d 523, and Kirby v. State, 222 Md. 421, 424, 160 A.2d 786, cert. den., 364 U.S. 850, 81 S. Ct. 95, 5 L.Ed.2d 74. We find it unnecessary to pass on the point in the case at bar.

The constitutional right to a speedy trial under Art. 21 of the Maryland Declaration of Rights, as under the Sixth Amendment to the Federal Constitution, is specifically limited to 'criminal prosecutions'. The provisions are not applicable in the case at bar. We have repeatedly held that a proceeding under Article 31B is not criminal in nature, and that the Maryland Statute is civil, not penal. Simmons v. Director, 227 Md. 661, 663, 177 A.2d 409 and cases cited. We have said that a defendant is entitled to have the issue of defective delinquency tried within a reasonable time after the Patuxent Institution has had a reasonable time to make its findings. Roberts v. Director, 226 Md. 643, 650, 172 A.2d 880. That does not mean that the court loses its jurisdiction to try the case by the mere lapse of time. Cf. Eggleston v. State, 209 Md. 504, 121 A.2d 698. There is no contention here that the court lost its jurisdiction by reason of the expiration of the term of confinement for assault, which was suspended by the escape. Cf. Calp v. Warden, 216 Md. 629, 631, 139 A.2d 506.

The applicant contends, however, that the court lost its jurisdiction under Code (1957), Art. 31B, sec. 6(e), which provides: 'The court which last sentenced the defendant, whether or not the term of court in which he was sentenced has expired, shall retain jurisdiction of the defendant for the purpose of any of the procedures specified in §§ 6, 7, 8 or 9 thereof. * * *' He argues that the 'last sentence' was imposed for escape...