Warden, Md. Penitentiary v. Palumbo

• Decision Date: 24 October 1957
• Docket Number: No. 59,59
• Citation: 214 Md. 407,135 A.2d 439
• Parties: WARDEN, MARYLAND PENITENTIARY, et al., v. Samuel E. PALUMBO.
• Court: Maryland Court of Appeals

Page 407

214 Md. 407

135 A.2d 439

WARDEN, MARYLAND PENITENTIARY, et al., v. Samuel E. PALUMBO.

No. 59.

Court of Appeals of Maryland.

Oct. 24, 1957.

James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and J. Harold Grady, State's Atty., Baltimore, on the brief), for appellants.

J. Calvin Carney, Baltimore (Preston A. Pairo, Sr., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

COLLINS, Judge.

This is an appeal by the Warden of the Maryland Penitentiary and the Board of Parole and Probation (the Board), and a cross appeal by Samuel E. Palumbo (petitioner), who filed a petition for a writ of habeas corpus.

On September 23, 1948, petitioner was found guilty in the Criminal Court of Baltimore of assault with intent to rape and was sentenced to life imprisonment in the Maryland Penitentiary. His sentence was later reduced to twenty years and on January 24, 1955, he was released on parole by the Board subject to certain conditions set forth in the parole order.

On February 17, 1956, while still on parole, petitioner was arrested and indicted for extortion and for having in his possession a deadly weapon. He was tried on these charges and acquitted in the Criminal Court of Baltimore. On February 20, 1956, the Board issued a warrant charging him with violating the conditions of his parole. Following his acquittal on the aforementioned charges, he was returned to the Maryland Penitentiary on May 8, 1956.

Petitioner employed an attorney to represent him and on May 23, 1956, petitioner appeared before the Board to answer the charge that he had violated his parole. The Board denied his attorney's request to appear before it at that time on the ground that the Board was not required by law to permit the attorney's attendance at interviews and appearances before the Board, involving the revocation of parole. Later, on the day of the hearing, however, the Board met and consulted with the attorney representing the petitioner. On July 5, 1956, the attorneys for petitioner again appeared before the Board and presented arguments in support of petitioner's contention that the conditions of parole had not been violated and subsequently submitted to the Board a memorandum containing legal authorities and further arguments to support their contention that petitioner had not violated his parole. The Board, in an opinion dated July 27, 1956, ruled that the conditions of the parole had been violated and ordered that it be revoked and petitioner be returned to the Maryland Penitentiary to serve the remainder of the sentence originally imposed upon him, without credit for the time spent in the community under parole supervision.

Thereafter, petitioner filed in the Baltimore City Court a petition for the issuance of a writ of habeas corpus alleging that the Board acted illegally in revoking the parole without permitting him to be represented by counsel before the Board, and that none of the conditions of the parole had actually been violated. Judge Manley heard the petition, took testimony heard argument of counsel and filed a comprehensive opinion in which he held that petitioner had been unlawfully deprived of employed counsel. In an order filed on February 15, 1957, he ordered that petitioner was entitled to the writ; that petitioner be discharged from the Maryland Penitentiary subject to the conditions of the parole dated January 24, 1955; and that, as the Attorney General had stated that he intended to file an application for leave to appeal to the Court of Appeals, the order be stayed pending a decision of this Court on petitioner's application for leave to appeal and pending a further decision on said appeal if same be allowed by this Court. He further stated in his order that the question whether the matters considered by the Board were sufficient to justify its action in revoking petitioner's parole, and whether the conditions set forth in the order dated January 24, 1955, for release on parole are proper, reasonable or sufficiently definite, should not be decided by him at that time. Leave to appeal from Judge Manley's order to this Court was granted on May 28, 1957.

The Warden appeals from that part of the order which discharged the petitioner. The petitioner cross appeals from the failure of the trial judge to pass upon the question whether the facts before the Board were sufficient to justify a revocation of his parole.

The question for our decision is whether the attorneys employed by petitioner should have been permitted to appear with him before the Board.

It is provided in part by Chapter 625, Acts of 1953, Code, 1957 Cumulative Supplement, Article 41, Section 91H: 'Whenever a prisoner released on parole is retaken, he shall, at the next meeting of the Board of Parole and Probation at the institution designated for the return of the parolee, be given an opportunity to appear before the Board or a member thereof.'

In the case of Murray v. Swenson, 196 Md. 222, 229, 76 A.2d 150, 153, the Governor, on June 17, 1943, revoked the pardon of Murray and he was returned to the Penitentiary. The statute, then in effect, Code 1939, Article 41, Section 80, provided in part: 'the Governor, in the absence of any provision to the contrary expressed therein, shall be the sole judge of whether or not the conditions of said pardon have been breached, and the determination by the Governor, that the conditions of such pardon have been violated by the person receiving the same, shall be final and not subject to review by any Court of this State.' This Court there pointed out the following: 'When the Director of Parole and Probation issues a warrant for the taking of any paroled convict, he conducts a hearing 'within a reasonable time' to determine whether or not the parole shall be revoked. If the Director finds that the paroled convict has in fact violated his parole, he issues an order remanding him to the institution from which he was paroled.' After reviewing many cases this Court held that it would be a constitutional violation and a contravention of the American concept of the fundamental principles of justice for the Governor to revoke the conditional pardon without giving the grantee 'an opportunity to be heard'. We held that the prisoner should be released from custody, unless a hearing was given within a reasonable time.

In Swan v. State, 200 Md. 420, 425, 90 A.2d 690, 692, this Court said: 'This court has held that a parole cannot be revoked without first giving the parolee a hearing, and that this is a requirement of due process of law. Wright v. Herzog, 182 Md. 316, 322-323, 34 A.2d 460. State ex rel. Murray v. Swenson, 76 A.2d 150. Hite v. State, 84 A.2d 899.' (Italics supplied.) In Jett v. Superintendent, 209 Md. 633, 640, 120 A.2d 580, 583, it was stated: 'A formal trial is not required on the inquiry of whether or not the conditions of probation have been violated.' In Raymond v. State ex rel. Szydlouski, 192 Md. 602, 607, 65 A.2d 285, and in Marvin v. Warden, 212 Md. 634, 129 A.2d 85, it was held that ...