*1
Court of Maryland. June *3 Curran, Jr., (J. Joseph Cannon, Atty. Asst. Gen. Evelyn O. Plitt, Jr., Gen. and Omar Gen., Atty. A. Asst. Emory Atty. Baltimore, brief), petitioner. on Atty., Staff Melehy, Inc., brief), Bureau, on Aid (Legal Walczak Witold J. Baltimore, respondent. ELDRIDGE, MURPHY, C.J., and
Argued before McAULIFFE, COLE, RODOWSKY, ADKINS *, BLACKWELL JJ.
ELDRIDGE, Judge. relating to the case issues presents
This habeas right appeal, notice of petitioner’s timeliness of the post the ex facto appeal, petitioner to take *4 The ex and federal constitutions.1 Maryland clauses of the application of concerns the retroactive post facto issue for from the changes requirements in the statutory Patuxent Institution.
* Blackwell, retired, J., hearing participated and conference now of this Court but did of this case while an active member participate adoption opinion. of this in the decision and 17; Maryland Rights, of the United 1. Declaration of Art. Constitution States, I, Art. cl. I. underlying facts and pertinent statutory background are as follows.
A. 5, 1974, in argument On March the course of a heated the home of estranged parents, his wife’s Richard Lee parents handgun. killed both of his wife’s with a On Sutton 10,1975, in the Circuit Court for Baltimore January County, degree Mr. Sutton convicted on counts of first two murder and counts of a in the commis- using handgun two sion of a or crime of He felony immediately violence. imprisonment sentenced two concurrent terms of life for the murders and two concurrent terms of years twelve imprisonment offenses, the handgun although the sentences the life year twelve were be consecutive to sentences. 10, 1975,
Also on January the circuit court found that there was reasonable cause to that Mr. believe Sutton was delinquent, defective and the court ordered that he be pursu- delivered the Patuxent Institution for examination (1957, ant to Code Art. 31B.2 Maryland Repl.Vol.), 17, 1975, hearing, The circuit court on July following found that Mr. Sutton was a delinquent defective within 31B, 5, meaning of Art. as it read. The Code then court ordered that Mr. Sutton be
“committed to Patuxent
Institution
confinement as a
defective
for an indeterminate
delinquent
period, without
limits,
either maximum or minimum
and the balance
Institution,
2. For discussions of the nature of the Patuxent
the “Defec-
Law,”
time,
Delinquency
applicable
tive
and the
statutes from time to
see,
Director,
Institution,
e.g., McNeil v.
Patuxent
407 U.S.
92 S.Ct.
(1972);
State,
291, 296-300,
Both when to Institution he the Patuxent was committed order were, the above-quoted as commitments Patuxent maximum or indicates, periods indeterminate without for length for the regard limits and without minimum A the criminal convictions. imposed upon initially sentences and commit defendant, delinquent to be defective found Patuxent, any ... confined for longer ted was “no (1957, Repl. original sentence.” Code portion of said Vol), 31B, might 9.3 example, person Art. For § imprisonment particu for a year sentenced to a ten term of to Patux offense, but, if he thereafter committed lar were ten Institution, for more than might ent he remain confined of his and, for the rest life. years possibly, hand, of Review of On the Institutional Board the other Institution time an inmate the Patuxent could if the Board found that the indeterminate sentence serving the the parole was for inmate’s benefit and benefit IB, 9(b), stated as follows: Art. 3 to be a “(b) delinquent. When defective defendant found —If be, jury, may as shall find and determine court or the the case delinquent, court shall so the said defendant a defective defendant, or shall order him to be committed inform the a defective delin- returned to institution confinement as quent, period maximum or for an indeterminate without either event, original limits. the sentence for minimum such conviction, thereof, portion any unexpired shall be and criminal longer suspended, shall be confined remain and the defendant no sentence, original except any portion of as otherwise said Instead, provided herein. defendant remain in shall thenceforth subject custody delinquents, of the institution for defective provisions of this article." (1957, Art. Repl.Vol., Cum.Supp.), society. Code 31B, 13(d).4 no that the Board’s requirement There was *6 person other parole approved by any decision in favor of entity. or 1975, not committed to Patuxent
In 1974 and an inmate a life sentence at one of the institu serving Institution and of Correction was tions under the control Division regard to entirely procedure to an different with subject not serving eligible a life sentence was parole. person Such until he shall served fifteen parole “for consideration have considering the years or the of fifteen when years equal provided diminution of of confinement period allowances for 638C____” 27, 27, for in Article 700 and Article Code § § 122(b). 41, Art. The initial decision (1957, 1978Repl.Vol.), § Board parole by Maryland to his was made respect with which, 1976, renamed the Parole Maryland of Parole was (1957, Art. Repl.Vol.), Code 1978 Commission. §§ sentence, his serving 115. an inmate was a life When authorized the Board of Parole parole only had to be approved by also to be the Governor. required but 122(b). (1957, provi 1978 Art. These Repl.Vol.), Code § of committed to the concerning parole persons sions sentences, serving including of Correction and life Division are requirement gubernatorial approval, substantial (1957, See Code Repl.Vol., 1989 ly today. the same 31B, 13(d), 4. Art. provided pertinent part and as follows: "If the institutional board of review as a result of its review and any person may reexamination of believes that it be for his benefit society grant parole for the him a from the and institution for defective benefit ... arrange delinquents, may proceed it parole____ may any attach to such such ... board ... necessary____” such conditions as to it seem wise or of Review of the Director of the The Institutional Board consisted Institution, directors, University Patuxent Maryland the three associate Bar, professor, Maryland School a member of the Law sociologist required faculty Maryland who was to be a member of a (1957, higher Repl.Vol., education. institution Code 31B, Cum.Supp.), Art. 12. 4-504, 4-516.5 Art. Cum.Supp.), §§ Institution, Code, to Patuxent relating Article 31B of the of the Acts by Ch. 678 re-written entirely State, Court Watson Md. for the Judge Orth (1979), the reasons explained A.2d 824 changes as follows: however, develop, and 81B], Art did
“Complaints [about Dissatisfaction passed. the years intensified as criticism their of the law but with objectives was not with fault persons found serious with [M]any fulfillment..... to be con- delinquent was the dictate that the defective without either maxi- period fined ‘for an indeterminate event, limits,’ such minimum mum or ‘[i]n conviction, unex- for the criminal original sentence thereof, suspended,’ remain so shall be and pired portion *7 custody remain delinquent that would the defective Thus, not un- 9(b). it was Institution. Patuxent § after his long remain in confinement person usual a to for expired. sentence had original legislative mounting ultimately spurred “The criticism repealed Law by was Delinquent action. The Defective The entire July Acts ch. effective 1977. abandoned, entirely law not of the former was concept enacted, A 31B entitled ‘Pa- new Article however. ‘to pro- The institution was retained tuxent Institution.’ and services adequate programs vide efficient and eligible persons.’ treatment and rehabilitation § ‘ (1) has been person means who “Eligible person” serving impris- of a crime and is sentence convicted it, (2) on has years remaining three onment with least imbalance, (3) is or emotional deficiency intellectual favorably programs to the and services likely respond to Institution, (4) can be better provided at Patuxent law in and the law principal 5. The difference between the serving today, concerning parole eligibility prisoners life sen- tences, categories prisoners today of these must serve that certain years parole. eligible be Art. 4- §§ more fifteen than 4-516(b)(3). 516(b)(2) and rehabilitated through those programs and services than by other 1(g).” incarceration.’ § Probably the most significant change brought about by 1977 re-writing of Art. 31B was the abolition of the indeter- minate concept. (1957, sentence Under Code 1976 Repl. Vol., 31B, 1978 Cum.Supp.), 11(a), Art. by as enacted Ch. 678 of the Acts of person confined at the “[a] [Patux- Institution shall be released upon expiration of his ent] sentence in the same manner and subject the same conditions as if he being were released from a correctional facility.”
One aspect pre-1977 concerning law Patuxent Institution substantially changed Ch. 678 of Acts of 1977. The Institutional Board of Review of Patux- ent Institution retained the exclusive authority parole a inmate, Patuxent including serving one a life sentence. There requirement was no the Board’s decision to parole a Patuxent serving inmate a life sentence ap- proved by the Governor or by anyone else.6
Ch. 678 of the Acts of as amended in the course of its progress through the General Assembly, was expressly made retroactive to apply to one in Mr. Sutton’s position. By operation statute, Mr. Sutton’s original life and twelve year sentences were “reimposed.” was, He how- ever, retained at Patuxent See Code Institution. (1957, 1976 Repl.Vol., 1978 Cum.Supp.), 31B, 16(b).7 Art. *8 (1957, 31B, Repl.Vol., 6. Code Cum.Supp.), 11(b)(2), Art. § provided pertinent part as follows: (1) "If the board impose of review concludes that it will not (2) society risk on unreasonable and rehabilitation of it will assist in the treatment eligible person, grant parole it shall from Institution____” 678, 7. The bill which became Ch. as introduced in the General Assem- bly, proposed contained a 16 of § Art. 31B which stated that the "prospective only,” enactment was only that the apply new statute should 1, 1977, to those committed to July Patuxent Institution after that former Art. 31B should remain respect in effect with to those committed to Patuxent Institution on or before June 1977. This proposed amendment, by § 16 was deleted entirely and an different indeter- sentence, from an in Mr. Sutton’s change life sentences reimposition to the sentence minate had little probably itself by plus years, twelve imprisonment reason for The parole. for his upon prospects no effect made the 1977 statute is that out this, previously, pointed as from parole for requirements change no substantial the sen- of whether Institution, regardless Patuxent indeterminate. for life or was tence Institution from Patuxent parole for requirements 1982. Acts of 588 of the however, Ch. were, changed by 11(b)(2), relat 31B, to Art. added a sentence This statute § Board of Review the Institutional paroles by ing eligible per “An Institution, follows: stating as Patuxent only shall be imprisonment life a term of serving is son who lan the Governor.” Similar approval with the paroled 4).8 4-516(b)( Art. is now also added to what guage was § enacted, IB, 16(b), provided as place. Art. 3 § inserted in its 16 was § as follows: July prior to “(b)(1) Institution person to the Each committed shall, original July days have after within 90 to the Institu- suspended upon his commitment sentence that was entered, credit originally with reimposed it was as of the time tion spent Institution. time at the for reimposed sen- (2) person when the shall be released Each such expired. has tence expired upon (3) reimposed sentence has not person whose Each 1, 1978, by January and dealt reimposition shall be reevaluated its article, except that provisions of this in accordance with the with notwithstanding may the Institution person be retained at such a years remaining to serve on the reim- he has less than three that posed Correc- Any person to the Division of transferred sentence. eligible parole consideration reevaluation who tion after the shall upon the date of transfer Maryland Commission Parole days within 90 hearing with Article in accordance have a transfer." after the 41, 4-516(b)(4) (1957, Cum.Supp.), Art. Repl.Vol., Code states: subsection, serving a an inmate eligible under this "If serving of life imprisonment person a term life and a term of eligible as an Patuxent Institution imprisonment who is confined at approval of the Governor.” only paroled with the person shall *9 Unlike Ch. 678 of the Acts of 588 of Ch. the Acts of 1982 contained no express language concerning the stat- ute’s to applicability persons who were confined at Patuxent 1, 1982, Institution to prior July which was the effective date of legislative Ch. 588. The history of Ch. con- tained in the file of the Department of Legislative Refer- ence, is also silent on this question. Patuxent Institution and the Governor have apparently administered the statute ifas it were applicable persons to whose Patuxent confine- began prior ment July case, 1982. the instant both sides and the circuit court proceeded upon have the assump- tion that Ch. 588 was intended by General Assembly to Mr. apply Sutton and others whose Patuxent confinement pre-dated the statute. Under this assumption, the combined effect of the 1977 statutory change, reimposing life sen- upon Sutton, tence Mr. and the 1982 change, requiring gubernatorial approval for parole of Patuxent inmates serv- sentences, ing life obviously affected prospects Mr. Sutton’s for parole. This was confirmed subsequent events.
C. 4, 1984, On October the Institutional Board of Review voted favor of paroling Richard Lee Sutton. The Board’s determination and supporting documents were forwarded to in early 4, 1985, Governor September On how- ever, the Governor refused to approve parole. Again on 5, 1986, June the Institutional Board of Review voted to Sutton, Mr. again the Governor refused to approve the parole. Sutton,
Mr. 6, 1987, on November filed in the Circuit Court for County petition Howard for a writ of habeas corpus, naming as Gluckstem, defendant Dr. Norma then the Director of Patuxent Institution and the Chairman of the Institutional Board of Review. Mr. requested Sutton that the circuit court order his release on parole in accord- ance with the decisions of the Institutional Board of Re- view. He contended that the requirement gubernatorial approval of parole, applied him, as violated the ex Rights Declaration Maryland clauses of facto post *10 Constitution. of the United States and by the 1987, represented Gluckstern, on November Dr. peti- the Baltimore answered Attorney County, for State’s to case the Circuit filed a motion transfer the tion and (1974, 1989 to Code County pursuant Baltimore Court for 3-702(b) of Judicial Proceed- the Courts and Repl.Vol.), § A later a Article, days and Rule Z54.9 few ings Maryland signed an County Court for of the Circuit Howard judge the Circuit the case to transferring habeas order County. Baltimore Court for (DeWaters, J.) County
The Baltimore Circuit Court filed an The court hearing December 1987. held a on 22, 1988, and an amended January on and order opinion 27, 1988. The amended on January and order opinion gubernato- retroactive requirement held that the opinion Petitioner disadvantage the “is to approval rial required step was not it an additional which because creates that, to Mr. applied as The circuit court concluded before.” approval violated Sutton, gubernatorial requirement the Declaration Maryland the ex facto clauses post The court’s Constitution. Rights and of the United States order, that Rich- January on “ORDERED entered with parole” released for accordance ard Lee Sutton be 3-702(b) portion Z54 to the same pertinent and Rule are 9. provides effect. Rule Z54 as follows: Application Court or ZS4. to Refer to Another "Rule Discretion Judge. may, application has made judge to an for the writ been "A whom discretion, judicial application in the refer the court his convicted, taking person confined was without circuit in which the however, thereon, provided, application action that such an other any judge who at the trial at which the not be referred to sat shall convicted, appli- person except with the written consent of application person which an confined. A court to cant or forthwith, thereupon act shall the writ has been referred shall power application. further refer or have no exercising transfer Rule, granted by judge an to whom the discretion this application the interests for the writ has been made shall consider parties including of all the State.” and convenience concerned the decision of the Institutional Board of Review in October
On following day, the course of an unrecorded oral among conversation Judge DeWaters, counsel for Sut- Mr. ton, assistant state’s been attorney repre- who had Dr. senting Gluckstern, Judge sug- DeWaters apparently gested to the assistant attorney state’s he contact someone in the Maryland Attorney General’s Office and have Attorney General’s Office file a memorandum of law in the case. There neither a docket entry nor any writing other in the record this reflecting conversation. knowledge Our it comes from an affidavit filed in this Court assistant state’s attorney. Counsel for Mr. *11 dispute Sutton does not that the took conversation place. 16, 1988, On February an assistant attorney general, representing Gluckstern, Dr. in filed the Circuit Court for Baltimore County a memorandum of law arguing that the ápplication to Mr. of gubernatorial Sutton the approval requirement did not ex post violate the facto clauses of the state and federal constitutions. Mr. filed Sutton a memo- randum in response. 31, 1988,
On March the circuit court its January amended 27th opinion, July and on the court amended its 27th January order. Nevertheless opinion the amended order continued to reflect the circuit court’s view that the requirement of gubernatorial approval could not be applied Mr. Sutton under ex post the facto of clauses the state and federal order, constitutions. The amended filed on July 14, 1988, required the Institutional Board of Review to afford Mr. Sutton another parole hearing to proceed “solely on the facts and evidence as they existed when the Institutional Board of Review originally considered Petition- for parole er of October 1984.” The order further stated the Board elect grant Petitioner, parole to “[s]hould parole such shall not subject approval the of the 31B____” of provided Governor Maryland as Article order amended continued in pertinent part as follows: of the of Review Board the Institutional “3. Should Petitioner, grant to the parole Patuxent Institution of revocation such is free to seek Institution Patuxent on the basis Board of Review the Institutional parole by of Petitioner part or conduct on any of actions of 1984. occurring after October revocation requests Institution “4. If the Patuxent Petitioner, Institutional Board parole such request hearing a on such shall conduct of Review 31B of the Code. of Article provisions accordance with from release does not order the specifically This Court revoca- [application Petitioner unless custody of the for] the said immediately after is not filed parole tion hearing....” days thirty within appeal filed a notice Dr. Gluckstern a not file did order. Mr. Sutton July Special however, Court of did, file He cross-appeal. on the Gluckstern’s a motion to dismiss Dr. Appeals case in a nature habeas that an order this ground agreeing Special Appeals, The Court of appealable. is not Sutton, appeal. dismissed the Mr. with of certiorari for a writ petition then filed Dr. Gluckstern addition, stay granted we granted. we which in the case. until our decision circuit court’s order *12 D. Dr. that Court, initially argues
In this Mr. Sutton Ap- of Special of to the Court appeal notice Gluckstern’s Next, lies appeal that no untimely. argues he was peals Mr. Sutton Finally, court’s order. contends from the circuit that, timely and appeal that the notice of was if it is held court’s judgment the circuit appealable, that the order the maintains that affirmed. Dr. Gluckstern should be appealable, the order timely, was that was appeal notice require- the order should be reversed because and that the validly be parole may approval ment of gubernatorial issues, at to these three to Mr. addition applied Sutton. argument oral this Court a before fourth issue raised was the by parties. discussed That the was whether relief granted by court, the namely ordering circuit the of another the hearing Sutton, instead of release Mr. proceeding. obtainable a habeas corpus Except above, as set forth side in neither this Court complains about the nature circuit court’s order or specific about any provisions. its Consequently, except discussed, as hereafter concerning no issues propriety the of the relief granted concerning any specific or provisions of the order are before us.
II. Mr. Sutton the contends that amended circuit court order 27, 1988, on January entered was the final judgment case, and that there was or stay no other action taken rules pursuant operated deprive which January 27th order of Dr. finality. Since Gluckstern’s notice of appeal was filed more until than after the days order, January 27th argues Mr. notice of Sutton 8-202(a).10 appeal untimely. Rule See Dr. Gluckstem counters with arguments. two alternate First, she maintains that motion under Rule 2-534 to alter or amend judgment, filed ten days within the judgment, made may by trial sua judge sponte.11 Dr. Gluckst- 8-202(a) provides pertinent part Rule as follows: "Except law, provided by as otherwise or this Rule the notice of appeal days entry shall be filed judgment within 30 after or order from which the is taken.” 11. Rule 2-534 states: "Rule 2-534. MOTION TO ALTER OR AMEND A JUDG- MENT-COURT DECISION court, “In an any party action decided on motion of filed days entry judgment, within ten after may open the court evidence,
judgment may findings to receive additional amend its or decision, may its statement of reasons for the set forth additional reasons, findings reasons, may findings or new may enter or new judgment, may amend the judgment. enter a new A motion to
649 day the suggestion oral Judge em claims that DeWaters’s Office Attorney General's entry judgment, of after Rule law, under a motion of constituted file a memorandum 8-202(c), appeal of Therefore, a notice Rule 2-534. under of disposition 30 after the days not be filed until need 2-534 Rule of the disposition 2-534 motion.12 Rule 14, Gluckstern, July until Dr. was not motion, according to 30 of appeal days was filed within 1988, the notice of that date. of memorandum
Second,
that the
argues
Gluckstern
Dr.
February
on
Attorney
General's Office
law filed
constituted
days
judgment,
within 30
which was
2-535(a)
judg-
to revise the
under Rule
timely
a
motion
more
a motion filed
recognizes that
ment.13 Dr. Gluckstern
days
30
after a
but within
judgment
than ten days
2-535(a),
not affect
ordinarily does
under Rule
judgment,
appeal. She
or the time for
finality
of the judgment
Rule
out, however,
a
motion under
timely
that where
points
joined
new
judgment may
a motion for
or
a
be
with
alter
amend
trial.”
8-202(c) provides as follows:
12. Rule
action,
“(c)
Judgment
a civil
Action —Post
Motions. —In
Civil
2-533,
2-532,
or
timely
pursuant
to Rule
motion is filed
when
2-534,
entry
days
within 30
after
notice of
shall
filed
(2)
denying
(1)
withdrawing
or
order
the motion
a notice
pursuant
disposing
pursuant to
of a motion
Rule 2-533 or
motion
appeal filed before the withdrawal
or 2-534. A notice of
Rule 2-532
deprive the trial
disposition
any
motions does not
of these
dispose of
motion.”
jurisdiction
court
Tobacco,
Md.
K
319
B & Rentals v. Universal
See
Leaf
(1990);
Corp.,
Yarema Exxon
305 Md.
A.2d 1213
v.
Comm’n,
(1986);
Md.
Atty. Attorney
Unnamed
Griev.
A.2d 239
37, 42-44,
Sieck,
(1985);
Md.App.
A.2d
Sieck
The first
forth
theory
by
set
Dr. Gluckstern must
agree
be
We do
rejected.
that the circuit court
sua
may
sponte file a Rule 2-534
to
or
alter
amend its
motion.
judgment.
219, 241,
Corp.,
See Yarema v. Exxon
305 Md.
State,
97,
A.2d 239
See also Goins v.
293 Md.
111,
(1982);
State,
376, 381,
On other agree Dr. we with Gluckstern that the 16, 1988, written filed on memorandum February was 2-535(a) a motion under Rule to revise the judgment of 27, 1988. a January While not labeled motion to revise the judgment, the substance of the memorandum clearly request by the defendant to revise the requiring order circuit by as such It was treated of Mr. Sutton. release caption. misled No one was parties. and the court revise the motion to timely Dr. filed As Gluckstem 2-535(a), no as there was Rule in accordance with judgment the judgment, to revision of appeal prior timely notice on July fact revised as the judgment judg the final became July order entered on were set forth Yarema controlling principles ment. at 503 A.2d 305 Md. Corp., supra, v. Exxon as follows: 625a, autho- 2-535(a), numbered Rule formerly
“Rule
*15
a
power over
revisory
to exercise
rizes the circuit court
days from the
thirty
filed within
on a
judgment
motion
Nevertheless,
that neither the
it
settled
judgment.
nor
judgment
a final
a motion to revise
timely filing of
motion,
staying
an order
of such
absent
the court’s denial
of the
finality
the
the
affects
operation
judgment,
the
running
appeal.
time for
Un
or
judgment
473,
Comm’n,
Md.
303
Attorney
v.
Griev.
Atty.
named
5,
Metts,
1,Md.
282
484,
(1985);
940
v.
Hardy
494 A.2d
461,
Stulman, 216 Md.
(1978);
v.
Hanley
683
381 A.2d
Rule
467,
(1958). But when a motion under
Consequently, timely. days judgment, 30 of the revised within 652
III.
This Court has
consistently
statutory provi
held
(1974,
like Code
1989
Repl.Vol.),
12-301
sions
§
Article,
Proceedings
Courts
Judicial
authoriz
generally
from
ing
“appeal
judgment
a final
in a
entered
civil or
do
case,"
criminal
apply
corpus
habeas
cases. An
appeal may
taken
a final
from
order
corpus
habeas
only
specifically
See,
case
where
authorized by statute.
Superintendent
Calman,
414, 423-425,
e.g.,
203 Md.
(1953);
Jones,
A.2d 207
Petition
Otho
179 Md.
242-248,
(1940);
Howard,
A.2d
Annapolis
Md.
244, 245-246,
(1894);
Glenn,
Two statutes applications authorize for leave appeal, in particular classes of habeas corpus cases. (1957, Code 1986 Repl.Vol.), Art. authorizes an under appeal certain conditions from denial of habeas corpus application (1974, an extradition case. Code Repl.Vol.), 3-707 of the Courts Proceedings and Judicial Article, provides for for leave applications from the denial of relief cases regarding habeas right to bail or allegedly excessive bail.14
There are
other
right
two
statutes which relate to the
in
appeal
corpus
habeas
cases.
are
They
3-706
§
and
Proceedings
645A(e)
Courts
Judicial
Article and
of
§
the Post
Act,
(1957,
Conviction Procedure
Repl.
Code
1987
Vol.,
27, 645A(e).
1989 Cum.Supp.), Art.
In
that
arguing
§
she is
appeal
present case,
entitled to
in the
Dr. Gluckstern
14. Section
of
Proceedings
3-707
the
and
Courts
Judicial
Article was
originally
by
of
enacted
Ch. 392
the Acts
of
The statute was
obviously
holding
Superintend-
intended to overturn the
v.
Hudson
ent, Md.App.
(1971),
11
right
470
A.2d
that there was no
appeal
corpus application
the
of a
regard
denial
habeas
bail. See
Sheriff,
(1973);
Md.App.
Washburn v.
Long
A.2d 462
State,
Warden,
Md.App.
(1972);
A. Proceedings and of the Courts Judicial Section 3-706 provides as follows: Article
“(a) discharge. Memorandum to —If filed after the under discharged judge or aby is released person the under ground the that law on habeas writ unconstitutional, was convicted person the which a memorandum shall file part, judge or in whole discharge and trans- release or after the days within five clerk of the in the to the papers case original mit it with Appeals. of Special Court The “(b) Special Appeals. Opinion Court (1) — memorandum shall consider the Appeals of Special
Court earliest feasible time papers at the original its opinion. render opinion filed as an
“(2) has the same effect opinion on by the court heard and determined formally in a case appeal.” appeal under above-quoted language, As shown that a necessary It is not is an automatic one. 3-706 § Moreover, appeal.15 notice under file a party timely under the is an there language plain “on discharged is released or only person when a statute con- person the law under which the ground that in the case at Judge is unconstitutional.” DeWaters victed because inapplicable 3-706 was position took the bar (i.e., the convicted which Mr. Sutton was the laws under handgun use murder and of a proscribing laws violence) not held crime of were felony of a commission *17 case, II of applicable discussion in Part If were to this the 3-706 § would, course, wholly unnecessary. opinion of this @§4 Thus, 14, 1988,
unconstitutional. after the July order, the original papers were not to the automatically sent Court of Special in Appeals accordance with 3-706.
What is now 3-706 in originally was enacted substan- tially the same language by Ch. 6 of the of Acts 1880.16 Ch 6, in pertinent part, for an provided appeal automatic to the Appeals Court of
“[wjhenever or any judge Court ... ... shall ... release discharge person ... under any the of writ ‘Habeas Corpus,' charged with the violation of ... act of Assembly State, of this upon ... the ground ... that such void, act ... in unconstitutional and whole inor part, because to the contrary Constitution ... of this States____” State, or ... of the United As out pointed by Judge Alvey for the Court the first case Glenn, to arise under supra, State Ch. Md. at 594, the automatic appeal is authorized the statute in situation, very limited “the Judge with Court or being required to papers transmit the to this only Court the event discharge prisoner for the reasons stated.” The “reasons stated” were the unconstitutionality of the statute which the prisoner charged had been with In Glenn, violating. where the per- automatic was mitted, prisoner charged had been under convicted violating a statute proscribing conduct disorderly granting jurisdiction justice of the peace, without a jury, try A circuit charge. judge, habeas corpus proceeding, had ordered the prisoner's release on the ground that the statute under prisoner which the convicted unconstitutional under the trial jury clauses of the Maryland Declaration of Rights. Clawns, Price 532, 533, 180 Md. A.2d (1942),
Judge Sloan for this pointed Court out habeas portion 16. Another attempted Ch. 6 of Acts of 1880 to restrict jurisdiction cases, judges the territorial habeas but that portion was held to be unconstitutional and severable in State v. Glenn, Md. 595-599
655
could
Acts of 1880
be
under Ch. 6
appeal
and
had been convicted
applicant
entertained “because
under a statute which
City
to the Baltimore
Jail
sentenced
is void
hearing
application
judge
opinion
in the
Quenstedt Wilson, 173
v.
also
unconstitutional.” See
and
162 Md.
14-16,
(1937);
Day
Sheriff,
Under the clear Ch. Article, Proceedings now 3-706 of the Courts and Judicial § Court, appeal is an and the cases in this there automatic that the ground a release is “on the only prisoner’s where was convicted is unconstitution- person law under which Mr. were al.” The laws under which Sutton was convicted mur- statutory provisions proscribing the common and law using the offense of a hand- creating der and the statute crime of violence.18 gun felony the commission of under convict- Giving phrase person “law which meaning, ed” its of laws under which category broadest to include might expanded Mr. Sutton was convicted be 31B, (1957, pro- Repl.Vol.), former Code Art. §§ for the and of a viding person incarceration examination if the Patuxent Institution to determine he was a defective (1957, Repl.Vol.), 17. Code Art. 407-412. §§ 36B(d). 18. Art. for the commitment to Patuxent
delinquent, providing provisions of defective None of these delinquents.19 Judge held to unconstitutional His consti- by DeWaters. ruling any provision tutional did not relate to of law which to Mr. incarceration at Patuxent Institution in led Sutton’s 1975. To hold that this is authorized language 3-706 be to emasculate the of the stat- would ute.
B. *19 appeal consider whether the was authorized We now 27, 645A(e). Art. by §
The
702 of
of 1945
Assembly, by
General
Ch.
the Acts
1947,
and Ch. 625 of the Acts of
created a relatively broad
in
right
application
appeal
to file an
for leave to
habeas
19. This broad
reading
of what is now 3-706 of the Courts and
§
Cash,
Proceedings
supported by
Judicial
Article is
Director v.
269 Md.
331, 351-352,
881,
denied,
1136,
(1973), cert.
414 U.S.
S.Ct.
Any person, including the
General or the
Attorney
attorney
City
State’s
for Baltimore
or a
as the
county,
be,
case
in
may
aggrieved by
judge
the order of the
refusing to issue a
or in dis-
corpus,
writ
habeas
charging
writ,
said
remanding
person seeking
may
to the Court of
apply
Appeals Maryland for leave to
prosecute an
therefrom.
appeal
application
Said
for leave
prosecute
shall
be
such form as the Court
rules,
Appeals may, by
prescribe,
its
the event
that the
General or the
Attorney
attorney
State’s
shall
forthwith state his
application
intention to file such
for an
appeal,
discharging
prisoner
order
may
stayed,
discretion,
but the
judge may,
petitioner
his
admit the
to bail for his
If
appearance
required.
applica-
when
prosecute
tion to
such appeal
granted,
proce-
shall be
dure thereafter
shall be
with the rules of
conformity
If
Appeals.
application
denied,
Court
said
*20
order sought to be reviewed shall thereby become final to
the same extent and with the same effect as if said order
had been affirmed upon appeal.”
inapplicable.
7. Cases
4
when
to 6
Ҥ
§§
provisions
4,
of
5 and 6 shall not apply
to
§§
case
petitioner
unless the
is detained for or confined as
the result of a prosecution for a criminal offense or has
been confined as
delinquent
a defective
the provi-
under
Code,
sions of Article 31B of the
title ‘Defective Delin-
”20
quents.’
provisions,
Under these
corpus
whenever a
petition-
habeas
er was detained or confined as a result of a criminal
clause,
20. The final
31B,
relating
to confinement under Art.
was added
1957,
by Ch. 760 of the Acts of
and was intended to overturn the
Director,
holding McElroy
supra,
in
In 1958 the General enacted Post Convic- (1957, Act, 44 of the Acts of tion Procedure Ch. Code enactment, Art. 645A et That Cum.Supp.), seq. § time, created a under which a statutory remedy for the first collaterally challenge could the conviction and sen- prisoner determination, tence, led to delinquency or defective which Act also his incarceration. The Post Conviction Procedure aggrieved by the final trial court provided any party applica- under that Act could file an proceeding order (1957, Cum.Supp.), tion for Code Art. appeal. leave Procedure purpose 645-1. The Post Conviction procedure, place create a simple statutory Act was to remedies, coram corpus the common law habeas nobis upon for collateral attacks criminal convictions and sen State, 442, 446-447,160 A.2d 912 tences. Md. Brady v. (1960); 20, 28-29, A.2d 643 Md. D’Onofrio, State v. (1959). Although for constitutional reasons the General did not restrict the to issue Assembly authority judges it did in the Post Conviction corpus,21 writs habeas legislate regard appeals Procedure Act habeas with cases. repealed Ch. 45 of the Acts of 1958 Art. which provided applications had broadly leave addition, corpus cases. Ch. of the Acts of habeas *21 1958, Act, enacted the Post Procedure which Conviction 16, IV, 6, Glenn, supra; supra; State v. Art. 21. See n. § Maryland Constitution.
659 in pertinent stated as part (Code (1957, follows 1963 Cum. 27, 645A(b)): Art. Supp.), §
“Hereafter no appeals to the Appeals Court of of Mary- in cases, land habeas or corpus coram or nobis from other common law or statutory remedies have which heretofore challenging been available for of validity incarcera- under tion sentence of death imprisonment or shall be entertained, or permitted except in appeals such cases 1, in the of pending Appeals 1958, Court on shall June in processed due course.” in light reference the above-quoted language to of validity
“the
incarceration under
of
sentence
death or
light
and in
of
imprisonment,”
the legislative purpose of
substituting
statutory post
remedy
conviction
for habe-
corpus
as
where the conviction and
leading
sentence
to
attacked,
incarceration were being collaterally
the language
645A(b)
might arguably have
construed to
been
abolish
corpus appeals only
habeas
where the
purpose
the habe-
as
corpus proceeding
challenge
original
criminal
sentence,
conviction
delinquency proceed-
defective
ing,
had
Nevertheless,
which
led to the incarceration.
discussion,
dicta
without
this Court seemed
abolishing
appeals
construe
1958 enactment as
all
corpus
except
cases
those under
6 of the Acts
habeas
Ch.
relating
1880 and those
to extradition. Cumberland v.
Warden,
638,
636,
(1961),
225 Md.
in Musgrove, State v. permit- held that no the Court where chal- prisoner corpus in case where ted a habeas under Art. 31B which procedures the examination lenging Neither Institution. at Patuxent his incarceration led to has discussed opinion of this Court nor other Musgrove Proce- the Post Conviction language added to whether the in appeals authorize intended to dure Act 1965 was challenges to the did involve corpus cases which not habeas and sentences (i.e., cases convictions in criminal judgments and defective the examination challenges imposed) Nevertheless, under Art. 31B. delinquency proceedings appellate direct after 1965 and before during period shifted from this cases was corpus habeas jurisdiction did this Court Special Appeals,22 to the Court Court ex- involving not corpus cases entertain habeas appeals July the Acts of effective 22. Ch. 99 of
0@1
in crimi
challenges
judgments
involving
tradition and
See,
e.g., Whiteley
proceedings.
31B
cases or Art.
nal
(1970). Subsequently,
Warden, 258 Md.
634,
Procedure Act
was
The language
case at bar.
cases such as the
corpus
habeas
Post Conviction
27, 645A(e),
that the
emphasizes
Art.
of
§
appeal
to bar an
operate
Act shall not
Procedure
under
instituted
“(1)
corpus proceeding
in a habeas
other
(2)
41 of this Code or
2-210 of Article
sought
is
corpus
a
of habeas
which writ
proceeding
of a
challenge
legality
other than to
any purpose
imprison-
of death or
of
crime or sentence
conviction
a
of a
therefor,
as a result
including confinement
ment
Article 31B of this Code.”
proceeding under
(2)
obviously applies
above-quoted language
Clause
Otherwise, the clause would
one.
present
to a case like the
meaningless.
enactment,
stat-
only
two
Immediately prior to the
corpus
or
in habeas
appeal
appeal
utes
leave to
provided
2-210, relating to
is now Art.
proceedings: what
1880, relating to
cases,
6 of
Acts of
extradition
and Ch.
under
on the
of the statute
unconstitutionality
orders based
(1) of the 1965
was convicted. Clause
prisoner
which
therefore,
cases,
extradition
and
language encompasses the
(2).
are not the
of clause
Automatic
object
those cases
not the
6 of the Acts of 1880 are also
appeals under Ch.
Zeserman,
(1980);
Superintendent
Md.App.
Finally, dis- previously Procedure Act. As the Post Conviction statutory remedy create a cussed, designed Act and Art. 31B to criminal challenges judgments collateral for and delinquency proceedings, defective examination and corpus and coram nobis this for habeas remedy substitute pro- Art. 31B judgments criminal challenging actions Proce- the Post In situations where Conviction ceedings. and thus not a remedy, provide dure Act did the enactment of the new corpus, for substitute habeas in restricting appeals for habeas no reason provided statute cases. corpus case, therefore, in
The State’s this was authorized 27, 645A(e). Special Appeals Art. The Court of erred dismissing appeal. in
IV. Cash, 269 Md. 305 A.2d Director v. (1973), denied, cert. U.S. 94 S.Ct. (1974), argument L.Ed.2d 762 this Court noted the State’s that relief other than the discharge prisoner was not purview proper relief under a petition “within corpus,” unnecessary habeas but the Court found it earlier, decide the issue in that ease. As mentioned in argument present same issue was raised at oral case. we note that the order entered in the in- Preliminarily, 14,1988, stant case on the release July clearly contemplated of Mr. Sutton in one Under contingency. any reasonable order, construction of the if the Institutional Board of Review, hearing, after the new determines that Mr. Sutton if paroled, application should be “revocation parole is not filed Mr. release on immediately,” Sutton’s required.
Moreover, and despite ques reservation Cash, tion cases supra, Maryland clearly Director v. hold that it is not inappropriate grant a habeas case to relief other than the release of the earlier prisoner. While cases have taken a may narrow view of the relief available in a corpus proceeding, habeas more recent cases hold that the judge is entitled to tailor relief as justice may require. State,
For
example,
235 Md.
201 A.2d
Shipley
(1964),
judge
corpus proceeding
a habeas
had
found a constitutional
in the
infirmity
prisoner’s original
trial
him
granted
and had
a new trial. This
specifical-
Court
*25
ly rejected
argument
grant
that the
of a
trial
new
proper
relief in a
corpus proceeding.
habeas
(1957), in opinion the Court by Judge Hammond held that could order that a case corpus court a habeas
a circuit original from his granted a belated prisoner be v. Hardy the same effect Ward- criminal conviction. To (1958). 659, 662, 146 A.2d en, 218 Md. in this opinions Court and the Hardy
Both the Beard
Cook, 340 U.S.
Dowd v.
approval
cited with
Supreme
(1951),
where
95 L.Ed.
S.Ct.
in a habeas
judge
that a
the contention
rejected
Court
ordering an
“to choose between
required
case
corpus
him all
denying
discharge
prisoner
absolute
“has
judge
out that a
pointed
Court
Supreme
relief.”
‘dispose
corpus proceeding
power
a habeas
”
340 U.S.
require.’
and justice
matter as law
54, 66-67, 88
Rowe, 391 U.S.
v.
Peyton
at 264. See
S.Ct.
1549, 1555-1556,
Regardless of whether was
hearing
case,
parole
of a new
ordering
of this
stances
case.
relief in a habeas
type
was an available
V.
Judge DeWa
The final issue before us is whether
that,
ex
facto clauses
post
held
under the
correctly
ters
constitutions,
requirement
the federal and state
to a decision
applied
could not
gubernatorial approval
Mr. Sutton.
Board of Review to
the Institutional
Hyg.,
Mental
Dep’t
v.
Health &
Recently Anderson
denied,
217, 224,
(1987),
485 U.S.
528 A.2d
cert.
310 Md.
(1988),
set forth
“[T]he
after
broadly
‘any
passed
extends
law
prohibition
“in relation to
of an offense which ...
the commission
of a
offense,
alters
situation
consequences,
or its
’
Missouri, 107
disadvantage.”
his
U.S.
Kring
party
443, 455,
(1883),
221, 235,
quoting
665
84,
(Case
15,285)(1809)
366,
(emphasis
26
86
No.
Fed.Cas.
added).
to ‘the
pointed
Court has also
Supreme
to the
given]
this court ...
liberal construction which
[has
law,
in manifest
construction
post
words ex
—a
facto
purpose
accord with the
of the constitutional convention
against
of life and
protect
rights
liberty
the individual
Missouri,
legislation.’
su
retrospective
Kring
hostile
v.
107
at
We also
out Anderson that “the ex
facto
Declaration of
has
Maryland
Rights
clause
...
been
having
meaning
prohibi-
viewed as
the same
as the federal
tion.”
With
to retroactive laws
offense,
quences
post
prohibition
of a criminal
the ex
facto
directly changing
penalty
has not been limited to laws
Rather,
stated,
Supreme
for the offense.
as the
Court has
“any
passed
law which was
after the commission of the
law,
offence ...
is an ex
when it inflicts a
post facto
greater punishment than the
annexed to the crime at
law
the time it was committed ... or which alters the situation
the accused to his
134
disadvantage,”
Medley,
In re
U.S.
160, 171,
384, 387,
(1890)
10
(emphasis
S.Ct.
A
application
recent
of this
principle occurred Weaver
Graham,
(1981),
450 U.S.
S.Ct.
time” for considering offenses . the statute. pre-dated whose ex post prohibition, whether the statute violated the facto (450 Supreme Court stated U.S. at initially 965): S.Ct.
“Thus, if a statute alters merely penal provisions even *27 grace legislature, accorded it by violates Post Clause if it is retrospective both [Ex Facto] more onerous than the law in effect on the date of the offense.” reject argument
The Court went on to the State’s that the changing good statute conduct time prison part crime, (450 annexed to the punishment saying U.S. at 31-32, 966): 101 at S.Ct. First, precedents.
“This contention is foreclosed
our
prospect
gain
we need not determine whether the
part
time
in some technical sense
of the sentence to
conclude that it in fact is one determinant of petitioner’s
that
prison term —and
his effective sentence
altered
v.
once
Lindsey Wash-
changed.
this determinant is
See
ington,
799;
301
U.S. at
57 S.Ct. at
Greenfield
Scafati,
F.Supp.
(Mass.1967)
277
644
(three-judge
court),
aff’d,
390
88
summarily
U.S.
S.Ct.
20
Rodriguez
v. United States
(1968).
L.Ed.2d 250
See also
Comm’n,
Parole
(CA7
1979) (elimination
The concluded the statute conduct Court that “substantially consequences time alters the attached to already completed” disadvantageous peti crime and “is tioner and other it similarly prisoners” situated because “lengthens period petitioner’s position that someone in 33, 101 must spend prison.” U.S. at S.Ct. at 966-967. statute, therefore, post was held to violate the ex facto prohibition. Court Weaver v. significant Supreme
It is Graham, supra, at specifical- U.S. S.Ct. holding relied on cases that a ly changing parole statute crimes eligibility, applied prisoners whose occurred statute, before the violated the federal constitution’s ex post facto clause. Courts held that statutes generally have not, making parole more difficult to obtain under the may *28 post prohibition, ex facto applied prisoners whose occurred offenses before the enactment of the statutes. Recently the United States Court of for the Appeals Fourth Fender v. Circuit, Thompson, 303, (4th 883 F.2d 305-306 Cir.1989), reviewed some of these cases:
“Indeed, courts have
held that
repeatedly
‘parole eligibili-
ty
part
is
of the
annexed to
law
the crime at the time of a
offense.’ Schwartz v.
person’s
396,
Muncy,
834 F.2d
398
also,
(4th Cir.1987).
White,
See
n. 8
e.g., Burnside v.
760
217,
(8th Cir.1985) (‘There
F.2d
220
question
is no
that a
new parole
consequences
statute
alter the
may
attached
to a crime for
a prisoner already
which
has been sen-
tenced;
degree
so,
that a statute does
it has
[and]
Gill,
Lerner v.
effect.’);
retrospective
751 F.2d
454
(1st Cir.1985) (‘parole eligibility
part
an-
“law
nexed to the crime” for ex post
Beebe v.
purposes’);
facto
Phelps,
(5th
1981) (‘Since
650 F.2d
A
Cir. Unit
parole eligibility is considered an integral part of ...,
sentence
official port-sentence
action
delays
[sic]
eligibility
supervised release runs afoul of the ex post
proscription.’)
(quoting Shepard Taylor,
facto
(2d
F.2d
Cir.1977));
Rodriguez
United States
Comm’n,
Parole
(7th
(treat-
F.2d
Cir.1979)
ing
‘possibility
parole as an element of “punish-
ment”’).
turn,
they have unvaryingly refused to
permit the retrospective application of
new
amended
statutes or administrative rules which purported, for ex-
ample, to alter preexisting criteria for the determination
of parole eligibility,
Garrison,
Marshall v.
659 F.2d
(4th Cir.1981);
444-46
or revoke
‘good
accrued
time’
credits upon the revocation of
release
probationary
grant-
ed on the sentence for an offense committed before
statute,
enactment
Beebe,
776-77,
650 F.2d
or,
matter,
as practical
simply rescind prior parole eligibili-
ty altogether. Rodriguez,
“The principle underlying each of these decisions is that
the retrospective application of a statute modifying or
revoking parole
would,
eligibility
prisoners who
‘[f]or
committed crimes before
...,
enactment
[the statute’s]
substantially
the consequences attached to a crime
alter[ ]
already completed, and therefore change[ “the quantum
]
’
punishment.”
Weaver, 450
U.S. at
For other cases
applying
post
ex
prohibition
facto
*29
retroactive statutory changes making
difficult,
parole more
in addition to the cases
in Fender, see,
cited
e.g., Love v.
Fitzharris,
(9th
460 F.2d
Cir.1972),
382
moot,
remanded as
1100,
409
896,
U.S.
93
(1973);
S.Ct.
al
to Mr.
Dr. Gluckstern
may validly
applied
decision in Dob-
primarily
upon
Supreme
relies
Court’s
Florida,
2290,
2298.24 The challenged statute in changed Dobbert the role in judge the the jury sentencing under proceedings the capital punishment Florida statute. the former Under law, capital case, in a the death was sentence automatic absent jury recommendation Under mercy. the new law, retroactively applied Dobbert, the defendant the jury’s recommendation merely was advisory. new stat- ute provided recommendation, that the jury’s whether for or sentence, against the death was binding on the trial judge, and the decision impose the sentence death addition, that of the solely judge. trial the new law contained numerous requirements, not in the law, found old the trial restricting judge deciding impose the death penalty. bar, to the
Turning
case at
Dr.
argues
Gluckstern
that
law,
the
in the
change
gubernatorial
Maryland
requiring
approval for Mr. Sutton’s
“is
parole,
remarkably similar to
the
change
statute,
Dobbert —under the old
the jury’s
statute,
decision
final
and under the
the jury
new
made
a recommendation to
judge
the
and he made the final
(Gluckstern’s brief, p. 21).
decision.”
from
Apart
the fact
change
Dobbert involved a
trial procedure whereas
case
present
change in parole requirements,
involves a
there is another major difference between Dobbert and the
present
In Dobbert,
case.
under
statute,
Florida
new
the trial judge was substituted for
as
jury
the sole
24. As we
Hyg.,
Wall.
See, e.g., Cummings
supra,
obnoxious
at 452
individual has been
change
substantial
“a
exempt
170 U.S.
change
108 S.Ct.
310
F.2d
[277]
450
(‘it
recently pointed
Md.
from
343, 354-355,
in the law
U.S. at
as
rights.
217, 225-226,
obvious that a law which is one of
an ex
(D.C.Cir.1973)."
the ex
law which
29 n.
[18
99 L.Ed.2d
Kring
post
held to
v. The State
which is deemed
post
L.Ed.
12, 101
18 S.Ct.
out in Anderson v.
facto
v.
“Petitioner’s facto provides anyone that Florida statute the fact that the new least 25 must serve at life imprisonment sentenced to prior The parole. becoming eligible before years Florida Su- no such limitation. contained statute (1974), 305 found State, 294 So.2d Lee v. preme Court not constitu- could restricting parole provision that this to its effec- prior committed to crimes tionally applied its enact- nonetheless Petitioner contends that tive date. post to an ex Legislature amounts ment the Florida successfully may of this he law, and that because facto him. upon imposed death sentence challenge the sentence, life “Petitioner, course, did not receive a as a result of attaching onus to it so added him.” no effect on in Florida law had change that holding relies on several cases Dr. Gluckstern also changes by inapplicable prohibition facto post the ex in the Commission’s Parole Commission the United States See Du granting parole. discretionary guidelines own (11th Cir.1984), 1543, Baer, F.2d 1547-1550 v. 744 fresne 61, 49 88 L.Ed.2d denied, 474 106 S.Ct. U.S. cert. 672
(1985); Hayward
Com’n,
v. United States Parole
659 F.2d
(8th Cir.1981),
935, 102
857
denied,
cert.
456 U.S.
S.Ct.
(1982);
72 L.Ed.2d Warren v. United States Parole
Commission,
183, 193 (D.C.Cir.1981),
659 F.2d
denied,
cert.
455 U.S.
(1982);
S.Ct.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. PE- PAY TITIONER TO COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.
McAULIFFE, dissenting. Judge, I do opinion. the Court’s through I IV of I in Parts join result, I therefore V, or with the Part agree with dissent. gubernatorial requiring the Acts of 588 of
Chapter a life serving inmate of a Patuxent parole approval the punishment more burdensome did not sentence “make[ ] Ohio, 269 Beazell v. crime, commission.” after its for a 70 L.Ed. 167, 169-170, 46 S.Ct. U.S. to the returning Sutton effect of
Rather, 588 had the Ch. he committed the time he position same time, the time of Sutton’s and at in 1974. At that murders life imprisonment a sentenced sentencing person gubernatorial without paroled could not be for murder 122(b). Art. (1957, Repl.Vol.), Code approval. without right gain potential did not a Sutton when, as a result in 1975 until later approval gubernatorial adjudged he was proceeding, entirely separate Insti to Patuxent and was transferred delinquent defective pro initiated sentencing judge Although tution. referred to Patuxent that Sutton be ceeding ordering sen imposing after evaluation, immediately he did so The of the sentence. tence, part referral formed no Code, (1957, Repl. discretionary. entirely referral was made have been Vol.) 31B, 6. The referral could Art. referral, time, after then, or not at all. Even or at a later determined might not have been might or Sutton delinquent. defective delinquen- of defective of a determination possibility part not a to Patuxent was status and transfer
cy *33 good-time parole, imprisonment, framework of basic his crimes. time committed that existed at the Sutton credits at some might that occur possibility as a It existed bare imprisonment. Whether during a defendant’s time on depended part occurred actually of status change the statute persons designated by any whether evaluation, judge, of the trial the discretion an requested and whether the defendant would be found a different jury court or to fit the definition of a delinquent. defective pas- prohibition against Originally, Constitutional of ex any condemned statute post facto laws sage committed, which previously as a crime an act “punishes done; more innocent which makes burdensome when commission, crime, for a after its punishment defense charged crime of deprives one with which at the time when the act was according to law available committed.....” 68. 169, 46 at Ohio, S.Ct. supra, 269 U.S.
Beazell inte- credits have become good-time parole and Because impris- punishment by scheme ordinary gral part extended to have been post ex onment, protections facto stretch, has long extension, although That those areas. the basic with being as consistent viewed generally been the ex post clauses. underlies fairness that concept of facto to embrace principles of these further stretch This Court’s unconnected with possibility, a bare associated with benefit is un- sentencing parole, framework the traditional warranted.
No. Appeals Maryland. Court of June