EDWARD ARNOLD MOSS v. DIRECTOR, PATUXENT INSTITUTION
No. 88, September Term, 1976
Court of Appeals of Maryland
Decided March 2, 1977
561
John H. Harman, Assigned Public Defender, for appellant.
Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
DIGGES, J., delivered the opinion of the Court. ORTH, J., dissents and filed a dissenting opinion at page 569 infra.
The issue in this case is whether the pеtitioner‘s confinement at the Patuxent Institution is proper. Since we conclude that a statutory condition precedent to his institutionalization there was not complied with, we are constrained to hold that petitioner Edward Arnold Moss must be released from Patuxent and returned to the custody of the Department of Correction to serve the remainder of his sentencе.
Initially, we think it appropriate to delineate briefly those procedures which must be followed before one is committed to Patuxent under the Defective Delinquent Act.
Turning to the facts relevant to our disposition of this case, we begin with the series of events which developed after Moss was sentenced on October 31, 1973 to a fifteen-year prison term following guilty pleas to two robbery charges and one escape charge. Six days thereafter, by order of the Circuit Court for Montgomery County, the petitioner was transferred to Patuxent for examination to ascertain whether he was a defective delinquent.
Our primary concern here is whether the time requirement in Section 8 (a) is mandatory or directory. In full that provision reads:
If the institution for defective delinquents in its report on any person shall state that he is a defective delinquent, the court shall forthwith summon the person before it and advise him of the substance of the report and of the pendency of the hearing hereinafter provided; the court shall further advise him of his right to be representеd at said hearing by counsel of his choice, or if he has no choice, by competent counsel appointed by the court. [(Emphasis added.)]
Although the Court of Special Appeals in this case concluded that there was “little to be gained by attempting to classify § 8 (a) either as ‘mandatory’ or as ‘directory,‘” 32 Md. App. at 71, 359 A. 2d at 240, that court had previously indicated that the “forthwith” languagе was mandatory, see Wilson v. State, 31 Md. App. 255, 260, 355 A. 2d 752, 755 (1976); Smith v. Director, 27 Md. App. 618, 625, 342 A. 2d 334, 339, cert. denied, 276 Md. 749 (1975); Marsh v. State, 22 Md. App. 173, 182, 322 A. 2d 247, 251 (1974), and we agree that it is. It is now a familiar principle of statutory construction in this
Any reliance on Director v. Cash, 269 Md. 331, 305 A. 2d 833 (1973), cert. denied, 414 U. S. 1136 (1974), for the proposition that the clause under scrutiny here is directory would be misplaced, since our holding there — that compliance with the time requirement of Section 7 (a) of the Act is not mandatory — is clearly distinguishable. Section 7 (a), which deals with examinations of those individuals transferred to Patuxent for preliminary determination of defective delinquency, provides that the examiners “shall state their findings in a written report addressed to the court, not later than six months from the date said person was received in the Institution for examination, or three months, before expiration of his sentence, whichever first оccurs.” In Cash, we were faced with a situation where all of the appellees had refused to submit to examination by the institution‘s experts and then argued that they should be released from Patuxent on the ground that the six-month period had elapsed. Under those circumstances, we concluded that the General Assembly could not have intended Section 7 (a) to be mandatory in light of thе fact that if that were so, any person transferred to Patuxent could thwart the operation of the Act merely by refusing to submit to an examination. Director v. Cash, supra at 341-42 [839]; see McNeil v. Director, Patuxent Institution, 407 U. S. 245, 247 n. 2, 92 S. Ct. 2083, 32 L.Ed.2d 719 (1972), citing State v. Musgrove, 241 Md. 521, 217 A. 2d 247 (1966). Section 8 (a), however, which we now hold to mandate the “forthwith” summoning of a person found by the Patuxent examiners to be a defective delinquent, does not have the
We are also mindful of the familiar principle of law whereby if there are two reasonable constructions that can be placed upon a statute, one of which will result in its unconstitutionality and thе other of which will not, we must construe the enactment so as to avoid conflict with the State or Federal Constitutions. See Moberly v. Herboldsheimer, 276 Md. 211, 217, 345 A. 2d 855, 858 (1975). In this context, we note that while a holding contrary to the one we reach today may not alone render Article 31B unconstitutional, such a result coupled with other decisions similarly eroding the protections afforded defendants could place the entire statute in jeopardy. As this Court recently pointed out, the Maryland Defective Delinquent Act approaches the problem of a certain class of mentally disturbed offenders who are not legally insane in a unique manner — conviction of a crime, not mere accusation is a prerequisite, and the period of confinement undеr our statute, unlike those of other states, may extend beyond the offender‘s prison sentence. Williams and Fulwood v. Director, 276 Md. 272, 287, 347 A. 2d 179, 187 (1975), cert. denied, 425 U. S. 976 (1976). Because of this latter aspect — indeterminate commitment — as well as the fact that Patuxent functions, perhaps to some in Cerberean fashion, as a prison, a hospital, and a mental institution, Eggleston v. State, 209 Md. 504, 513, 121 A. 2d 698, 702 (1956), it has come under repeated constitutional attack since its establishment some twenty-two years ago. Although the statute has weathered these assaults in the
Having determined that Sectiоn 8 (a) is mandatory, we now consider whether, in this case, Moss was brought before the court “forthwith.” We conclude, and the director concedes, that he was not. We agree with the Court of Special Appeals in this case “that in the context of
We are, however, unable to agree with the Court of Special Appeals’ conclusion that, notwithstanding the Section 8 (a) violation, Moss is entitled to no relief since he could not show any due process deprivation. Given the fact that Section 8 (a) is mandatory and the further fact that its command was not obeyed, we hold that the proceedings by the State to have Moss committed to Patuxent must be dismissed, regardless of whether his due process rights were denied. See United States Coin and Currency in the Amount of $21,162.00 v. Director of Finance of Baltimore City, supra, 279 Md. at 188, 367 A. 2d at 1244; cf. Jones v. State, 279 Md. 1, 18, 367 A. 2d 1, 12 (1976) (only remedy for speedy trial violation is dismissal of indictment). Consequently, we determine that Moss must be returned to the custody of the Department of Correction to resume his original sentence with full credit for time spent at Patuxent. Cf.
Judgment of the Court of Special Appeals reversed.
Case remanded to that court with directions that it reverse the order of the Circuit Court for Montgomery County and remand the case to that court with instructions to dismiss the defective delinquent proceedings.
Costs to be paid by Montgomery County.
Orth, J., dissenting:
It is my opinion that the Court of Appeals does not have jurisdiction to review the judgment of the Court of Special Appeals.
Edward Arnold Moss was found to be a defective delinquent by a jury in the Circuit Court for Montgomery County. The court thereupon ordered Moss to be confined in Patuxent Institution as a defective delinquent for an indeterminate period. Moss applied for leave to aрpeal from that order to the Court of Special Appeals. The application was granted. The case was transferred to the appeal docket, briefs were filed, and argument heard. The order of the lower court was affirmed. Moss v. Director, 32 Md. App. 66, 359 A. 2d 236 (1976).
No review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:
(1) Leave to prosecute an appeal in a post conviction proceeding;
(2) Leave to prosecute an appeal in a defective delinquent proceeding;
(3) Leave to appeal from a refusal to issue a writ of habeas corpus sought for the purpose of determining the right to bail or the appropriate amount of bail.
To me, there is no ambiguity whatsoever in the dictates of
The Court of Appeals has acknowledged that it has no jurisdiction to review a decision of the Court of Special Appeals granting or denying leave to appeal under
However, once the Court of Special Appeals grants leave to appeal in such a case and transfers the case to its appeal docket, the matter takes the posture of a regular appeal, and we do have jurisdiction under
§ 12-201 of the Courts and Judicial Proceedings Article to review the Court of Special Appeals’ decision on the appeal itself.
As it is patent that there is no reasonable distinction to be made between a post conviction proceeding and a defective delinquent proceeding in the contemplation of
I cannot agree that merely because procedures adopted to bring a granted application for leave tо appeal to argument before the Court of Special Appeals are the same as those to bring a direct appeal to argument, the application for leave to appeal attains the status of a direct appeal so as to confer on the Court of Appeals jurisdiction to review the proceeding when such review is so plainly prohibited by
Whether it is advisable for the Court of Appeals to have power to review by way of certiorari decisions of the Court of Special Appeals under grants of leave to appeаl is not here relevant. If it is advisable, it may be properly accomplished by legislative action. What the Court is doing by assuming jurisdiction in the face of the legislative prohibition is, I believe, putting judicial preference before legislative intent. I think that the petition for writ of certiorari should have been denied for lack of jurisdiction.