Simon v. Director of Patuxent Inst.

• Decision Date: 10 June 1964
• Docket Number: No. 159,159
• Citation: 201 A.2d 371,235 Md. 626
• Parties: John E. SIMON v. DIRECTOR OF the PATUXENT INSTITUTION. Post Conviction
• Court: Maryland Court of Appeals

Page 626

235 Md. 626

201 A.2d 371

John E. SIMON v. DIRECTOR OF the PATUXENT INSTITUTION.

Post Conviction No. 159.

Court of Appeals of Maryland.

June 10, 1964.

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

HENDERSON, Judge.

This is an application for leave to appeal from a denial of post conviction relief by Judge Shook. The applicant was convicted of sodomy in 1958 and subsequently committed to Patuxent Institution after having been found to be a defective delinquent. He was paroled from Patuxent in 1961, but on October 8, 1962, he was alleged to have committed the crime of assault and battery upon two girls, aged 10 and 11. He was tried upon information before a trial magistrate in the People's Court, represented by experienced counsel of his own selection, convicted and sentenced to three years on each charge to run consecutively. He was remanded to Patuxent for violation of parole. He did not appeal, relying to some extent upon the advice of his attorney, who wrote him that he thought it unlikely that his defense of an alibi would prevail over the identification of the girls before a jury, the same defense raised before the magistrate. The attorney also pointed out that the length of the sentence would probably have very little effect upon the officials at Patuxent, even if he should succeed in having it reduced.

On December 3, 1963, he filed this proceeding in proper person. He expressly disclaimed 'the privilege of applying under the pauper's oath' as he was 'able to defray any possible cost or expense.' He further stated that 'should the situation arise where representation by counsel is necessary petitioner requests the court's permission to represent himself.' The petition was entitled in the alternative 'for writ of habeas corpus or to set aside or correct under post-conviction Procedure Act.' Judge Shook, in a written opinion denying the petition, treated it as an application for post conviction relief under Code (1963 Supp.), Art. 27, sec. 645A.

The petition consisted of thirty-four handwritten pages. The contents are, however, analyzed in the brief of the Attorney General to cover five main contentions:

(1). That he was convicted as a result of an illegal arrest and an illegal search and seizure. (It does not seem to be alleged that any tangible evidence was seized or offered in evidence, cf. Shefton v. Warden, Md., 199 A.2d 228, or that he at any time made any confession or admission of guilt; but the facts may be otherwise.)

(2). That he was interrogated by arresting officers without having been allowed to contact counsel or his wife. (Here again, it is not shown that the interrogation bore fruit.)

(3). That the verdict was against the evidence, and the child witnesses, the only ones to identify him, were improperly coached and influenced by the police officers.

(4). That he was inadequately represented by counsel, who failed to cross-examine the State's witnesses or to produce evidence in his favor as requested.

(5). That the magistrate did not have jurisdiction to try him.

He also attacked his detention at Patuxent under his former conviction, alleging:

(a). That the People's Court did not have jurisdiction to permit him to be recommitted to Patuxent prior to committing him to the House of Correction on the sentences handed down;

(b). That the indeterminate sentence to Patuxent and his parole and recommitment thereto were illegal;

(c). That the docket entries relative to his commitment were not in order.

There is no merit in the last three contentions. Upon conviction in the People's Court if not before, he was liable as a parole violator to be returned to Patuxent, to which he had been committed and only conditionally released. Cf. O'Connor v. State, Md., 199...