Patuxent Inst. Bd. of Review v. Hancock

• Decision Date: 01 September 1992
• Docket Number: No. 5,5
• Parties: PATUXENT INSTITUTION BOARD OF REVIEW v. Clarence J. HANCOCK
• Court: Maryland Court of Appeals

Page 556

329 Md. 556

620 A.2d 917

PATUXENT INSTITUTION BOARD OF REVIEW v. Clarence J. HANCOCK.

No. 5 Sept. Term, 1992.

Court of Appeals of Maryland.

March 12, 1993.

Reconsideration Denied April 1, 1993.

Carmen M. Shepard, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Andrew H. Baida, Asst. Atty. Gen., George A. Eichhorn, III, Asst. Atty. Gen., all on brief), Baltimore, for petitioner.

Joseph B. Tetrault, Staff Atty. (Emily Miller Rody, Chief Atty., Legal Aid Bureau, Inc., Baltimore, Witold J. Walczak, Pittsburgh, PA, all on brief), for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

We granted certiorari to review the judgment of the Court of Special Appeals, which ordered Clarence Hancock, the respondent, immediately released from prison.

In 1976, the respondent was convicted of murder, attempted murder, and assault and battery. He was sentenced to life imprisonment, plus thirty-five years. In April 1977, the respondent was accepted at Patuxent Institution, ¹ as a "defective delinquent." ² When the defective delinquent statute was repealed, effective July 1, 1977, see Acts 1977, Ch. 678, the respondent was retained at Patuxent as an "eligible person," i.e.,

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 unbalance, (3) is likely to respond favorably to the programs and services provided at Patuxent Institution, and (4) can be better rehabilitated through those programs and services than by other incarceration.

Md.Code (1957, 1976 Repl.Vol., 1980 Cum.Suppl.), Art. 31B § 1(g). In 1984, the respondent was approved for accompanied day leave. See Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 700D. In July 1985, pursuant to Md.Code (1957, 1983 Repl.Vol.) Art. 31B, § 10, ³ Hancock was placed in Patuxent's work-release program and in September, his work release status was changed to school-release. ⁴ Pursuant to Art. 27, § 700D, Hancock was approved for unaccompanied leave in 1986.

In 1987, the respondent was recommended for parole. The statute then in effect required gubernatorial approval in the case of an inmate serving a life sentence. Md.Code (1957, 1983 Repl.Vol.) Art. 31B § 11(b)(2). ⁵ That statute had been enacted in 1982. See ch. 588, Laws 1982. The Governor rejected the recommendation. Subsequently, on December 1, 1988, the work release program was suspended. See Holmes v. Robinson, 84 Md.App. 144, 578 A.2d 294, cert. denied, 321 Md. 501, 583 A.2d 275 (1991). Thereafter, in March 1989, citing "his deteriorating behavior," the Board revoked the respondent's participation in the work release program. The respondent was removed from Patuxent Institution on April 5, 1990, after the Board concluded that his behavior had become "unbefitting [of] continued participation in the program and services" of Patuxent Institution. The bases for this conclusion mirror the allegations which later would be made in support of the petition for parole violation filed by the Board.

We filed our opinion in Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898, cert. denied sub nom. Henneberry v. Sutton, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990), on June 7, 1990. In that case, we held that gubernatorial approval could not be required in the case of Patuxent inmates whose life sentences were for offenses committed before July 1, 1982, the effective date of the statute; the statute could not be applied retroactively. Id., 319 Md. at 669, 574 A.2d at 915. ⁶ Relying on that decision, the respondent filed an habeas corpus action in the Circuit Court for Baltimore City, in which he challenged the Governor's decision to withhold parole approval.

The circuit court agreed that Gluckstern applied and, on July 24, 1990, passed the following order ... [The petitioner] be, and hereby is, directed to parole [the respondent] on or before August 10, 1990, unless [the petitioner] within that time period commences appropriate and legally mandated procedures to revoke [the respondent's] parole, with a copy of the Request For Issuance of Retake Warrant form setting forth particularized grounds for the alleged violation to be served on [the respondent], his counsel and this Court on or before August 10, 1990.

Citing Morrissey v. Brewer, 408 U.S. 471, 483-84, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484, 495 (1972), the court explained:

The Court is mindful of the fact that [the respondent] may have engaged in conduct since the initial parole decision by the Board of Review that would militate against his release on parole at this time. Consequently, the Patuxent Board of Review is entitled to review [the respondent's] conduct since the parole recommendation to determine whether he "has in fact breached the conditions of parole."

It concluded:

Since [the respondent] has not been on parole physically, the Court recognizes he may not have satisfied many of the ordinary terms and conditions of a parole order, e.g. maintaining a job, reporting to a parole officer at specified times. However, these failings are not of his own volition. Therefore, in deciding whether revocation is warranted, the Board of Review should focus on behavior over which [the respondent] has exercised control.

Neither party appealed the judgment.

Consistent with the circuit court's order, the petitioner paroled the respondent. ⁷ It issued him an Order of Parole which expired August 2, 1991 and contained special, as well as general terms and conditions of parole. ⁸ One of the conditions was General Condition # 3: "The parolee shall not commit any act which would be a violation of any Federal, State Law or Municipal ordinance; and shall conform to all rules of conduct imposed upon him by the Patuxent Institution or authorized representative." Simultaneously, the petitioner served the respondent with a Preliminary Hearing Notice ⁹ notifying him of the purpose of the hearing--to determine whether probable cause exists to believe he violated parole and the consequences of that finding,--and a Request for Parole Revocation Warrant charging the respondent with violation of parole, i.e. General Condition # 3. Specifically, the Board charged that during his last year at the Institution, the respondent refused fully to participate in the program services "vital to his successful rehabilitation," that, in "repeated instances," he "refused to discuss essential aspects of the motivation for his crime and the factors necessary to prevent its recurrence," and that, despite repeated encouragement, "he consistently failed to cooperate in his treatment" and addressed counseling sessions "in an unsatisfactory manner."

After the preliminary hearing, probable cause to believe that the respondent failed to "conform to all rules of conduct imposed upon him by the Patuxent Institution or an authorized representative," having been found, the hearing officer ordered the respondent's detention at Patuxent pending a formal parole revocation hearing.

Dr. Farrell, an institutional psychologist, who had seen the respondent in group therapy, testified at the formal revocation hearing. Concerning the respondent's participation in therapy, he said that the respondent would become "evasive and general" in response to his questions and that he did not respond "favorably" to, nor "cooperate" in, treatment. Dr. Farrell asserted that, indeed, the respondent had not progressed as far as Dr. Farrell felt he should have. Consequently, he recommended against the respondent being released into the community. The Board agreed. Concluding that the respondent "failed to comply with the instructions and directives of his therapist ... [and] thwarted the purpose and mission of the Institution," it found him in violation of the terms and conditions of his parole.

The respondent appealed to the Circuit Court for Howard County. That court affirmed, stating, "none of the bases set forth in [Maryland Code (1984) ] Section 10-215(g)(3) [of the State Gov't Article ¹⁰ or a reversal or modification of the Board's decision have been found." The Court of Special Appeals, in an unreported opinion, reversed. Holding that "revo[cation of appellant's] parole, based on conditions that appellant was not made aware of until the moment his parole was revoked, is a violation of appellant's due process rights under Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution," it ordered the respondent's immediate release from incarceration "pursuant to the terms of the 19 November 1987 Review Board decision."

The Patuxent Institution Board of Review filed a petition for certiorari and a motion to stay the execution of the mandate of the Court of Special Appeals. We granted both the petition and the stay.

I.

Characterizing the intermediate appellate court's decision as being based upon the failure of the petitioner physically to release the respondent before initiating revocation proceedings, the petitioner argues that, in ordering the respondent's release on parole, the Court of Special Appeals reversed a final judgment entered by the Circuit Court for Baltimore City in prior, separate proceedings. That judgment, which the respondent did not appeal, prescribed the procedure the petitioner followed in revoking the respondent's parole in this case: it ordered the respondent's release "unless he '... has in fact acted in violation of one or more conditions of his parole [agreement],' authorized review [of the respondent's] conduct since the parole recommendation to determine whether he 'has in fact breached the conditions of parole' " ...; and directed the petitioner to "focus on behavior for which [the respondent] has exercised control." It asserts, furthermore, that the reversal was on a ground that was not raised by the respondent at any stage...