Clark v. State

Orth, J., delivered the opinion of the Court. In Maryland, it is a statutory felony for a person to escape from a place in this State in which he is legally detained or confined. The punishment upon conviction is confinement for whatever additional period, not exceeding ten years, as the court may adjudge, except that for escapes, not involving an assault, from the “Maryland Correctional Institution — Hagerstown or the Maryland Correctional Training Center — Hagerstown or any juvenile institution,” the sentence may not exceed confinement for three years. 1 The sentence imposed shall be consecutive to the sentence under which the ²⁶³ inmate was originally confined and may not be suspended. Maryland Code (1957, 1976 Repl.

Vol.) art. 27, § 139 (a). 2 Each of the appellants escaped from a place in this State in which he was legally confined. Carl Clark escaped from the Maryland Correctional Camp Center in Anne Arundel County on 19 August 1977. Joseph Stutzman and Roger E. Pritchard escaped from the Eastern Correctional Camp in Queen Anne’s County, Stutzman on 1 June 1975 and Pritchard on 21 June 1976. Each of appellants was duly charged, convicted and sentenced to the jurisdiction of the Department of Correction — Clark for three months and Stutzman and Pritchard for eighteen months, the sentences to run consecutively to the sentences then being served.

Each noted an appeal to the Court of Special Appeals. We ordered the issuance of writs of certiorari before decision by that court. I Below, each of appellants sought dismissal of the indictment returned against him on the ground that § 139 (a) of art. 27 was unconstitutional as denying equal protection of the laws. 3 . Each motion to that end was denied by the respective trial court.

The appellants pursued the contention in their briefs on appeal, but in oral argument before us they abandoned the position that the whole of § 139 (a) was unconstitutional and focused their attack on the three year exception. 4 ²⁶⁴ (1) Essential to the position that only the three year exception offends the constitutional guarantee is that this part of the statute is severable, and appellants apparently so concede. In any event, we think it clear that it is severable. The first statute proscribing escape was passed on 6 January 1810. Acts 1809, ch. 138, § 32.

A lesser penalty for escapes under certain circumstances first appeared by amendment over a hundred and fifty years later. Acts 1963, ch. 157. See State v. Schuller, 280 Md. 305, 318-321 , 372 A. 2d 1076 (1977); Davidson v. Miller, 276 Md. 54, 83 , 344 A. 2d 422 (1975); Shell Oil Co. v. Supervisor, 276 Md. 36, 48 , 343 A. 2d 521 (1975). Compare Wheeler v. State, 281 Md. 593, 607-609 , 380 A. 2d 1052 (1977), cert. denied, 435 U. S. 997 (1978).

We have serious doubt that appellants have standing to contest the constitutionality only of the three year exception. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 5 U. S. (1 Cranch) 137, 163 (1803) (emphasis added). See Baker v. Carr, 369 U. S. 186, 208 , 82 S. Ct. 691 (1962); Barrows v. Jackson, 346 U. S. 249, 255 , 73 S. Ct. 1031 (1953). Thus, the general rule is that a person may only assert his own constitutional rights or immunities.

McGowan v. Maryland, 366 U. S. 420, 429 , 81 S. Ct. 1101 (1961). “[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v. Raines, 362 U. S. 17, 21 , 80 S. Ct. 519 (1960). We observed in State v. Cherry, 224 Md. 144, 155 , 167 A. 2d 328 (1961) that although as a general rule in criminal prosecutions the accused has the right to assert the invalidity of the law under which he is being prosecuted, he must show that his rights are adversely affected by the statute and more ²⁶⁵ particularly that his rights are thus affected by the particular feature of the statute alleged to be in conflict with the constitution, it not being sufficient that the statute may impair the rights of others. To like effect, see Brown v. State, 177 Md. 321, 327 , 9 A. 2d 209 (1939); State v. Case, 132 Md. 269, 272 , 103 A. 569 (1918); Crouse v. State, 130 Md. 364, 371 , 100 A. 361 (1917); Parker v. State, 99 Md. 189, 200 , 57 A. 677 (1904); Hughes v. State, 14 Md. App. 497, 501 , 287 A. 2d 299 , cert. denied, 265 Md. 739 , cert. denied, 409 U. S. 1025 (1972); Lashley v. State, 10 Md. App. 136, 143-144 , 268 A. 2d 502 , cert. denied, 259 Md. 733 (1970), appeal dismissed, cert. denied, 402 U. S. 991 (1971). In other words, a person challenging the validity of a statute on equal protection grounds “cannot rely on theoretical inequalities, or such as do not affect him, but must show that he is himself affected unfavorably by the discrimination of which he complains.” Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 55 , 46 S. Ct. 375 (1926).

None of the appellants received a sentence which imposed confinement exceeding three years. It is not enough that each of them might have been sentenced to a term greater than the maximum permitted with regard to an escape from one of the Hagerstown facilities or a juvenile institution. None, in fact, were so punished. Accepting that the statute establishes a favored class of those who escape from one of the Hagerstown facilities or any juvenile institution, none of appellants received a sentence greater than that authorized for such class, so none of them suffered an actual injury.

Appellants seek only to strike down a part of the statute which has not affected them adversely, and it may well be that they have no standing to do so. 5 ²⁶⁶ (2) Assuming that appellants have standing to pursue their challenge to the constitutionality of the three year exception, they do not prevail. We see no denial of equal protection of the laws arising from it. The standard of review applicable here is the “rational basis” test, that is, whether “the classification challenged be rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U. S. 297, 303 , 96 S. Ct. 2513 (1976). We pointed out in Montgomery Co. v. Fields Road, 282 Md. 575, 579-580 , 386 A. 2d 344 (1978): The basic rules which guide a court in applying this test were set down over sixty-five years ago by Mr. Justice Van Devanter for the Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79 , 31 S. Ct. 337, 340 , 55 L. Ed. 369 (1911): “The rules by which this [equal protection] contention must be tested, as is shown by repeated decisions of this court, are these: 1.

The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify ... but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the ²⁶⁷ burden of showing that it does not rest on any reasonable basis, but is essentially arbitrary.” See cases cited in Fields Road at 580 .

We put it concisely in Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 370-371 , 104 A. 2d 813 (1954), citing Lindsley and Salsburg v. State, 201 Md. 212 , 94 A. 2d 280 (1953), aff’d, 346 U. S. 545 (1954): [A] classification made by a Legislature is presumed to be reasonable in the absence of clear and convincing indications to the contrary, and the person who assails it has the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. We made clear in Wheeler, 281 Md. 593 , that in the light of our prior decisions and especially Aero Motors v. Adm’r, M.V.A., 274 Md. 567 , 337 A. 2d 685 (1975); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496 , 312 A. 2d 216 (1973); Adm’r, Motor Veh. Adm. v. Vogt, 267 Md. 660 , 299 A. 2d 1 (1973); and Tatelbaum , that the principles enunciated in Lindsley have lost none of their vitality.

In applying the rational basis test to the three year exception, we look first to the nature of the institutions designated in the exception. As we have indicated, the exception first appeared in the escape statute by Acts 1963, ch. 157, in this language: However, for escapes from the Reformatory for Males which have not involved an assault, the sentence shall not exceed confinement for three years. [Md. Code (1957, 1967 Repl. Vol.) art. 27, § 139.] A new reformatory had been established by Acts 1931, ch. 366. It was to be located in Washington County and known as the Maryland State Penal Farm.

Its name was changed to the “Maryland State Reformatory for Males” by Acts 1945, ch. 519, which provided that it “shall be a place of confinement and training for male offenders from sixteen (16) years to twenty-five (25) years of age, both inclusive.” The name of ²⁶⁸ the facility was again changed by Acts 1964, ch. 45, which declared that it be called the “Maryland Correctional Institution — Hagerstown.” Both it and the Maryland Correctional Training Center — Hagerstown are now under the Division of Correction. Code (1957, 1976 Repl. Vol.) art. 27, § 689 (d) and (d-1). The law relating to the Maryland Correctional Institution — Hagerstown is set out in § 689 (d): The Maryland Correctional Institution — Hagerstown, ... is a place of confinement and training for male offenders from sixteen (16) to twenty-five (25) years of age, both inclusive.

In those cases in which the judge of the Supreme Bench of Baltimore City, who is assigned to exercise jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of sixteen, and the judge of any circuit court in any county exercising jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of eighteen, to be held for action under the regular procedure that would follow if such act or acts had been committed by an adult, then and in that event the judge presiding in the criminal courts of Baltimore City and the judge of the circuit court of any county upon assuming jurisdiction in such case and upon conviction may commit the minor to the Maryland Correctional Institution — Hagerstown regardless of age. The courts of this State, instead of imposing sentences of fixed duration upon male offenders included within this subsection may sentence them to the Maryland Correctional Institution — Hagerstown for an indeterminate period of time which may not exceed the maximum term of imprisonment provided by statute for the offenses of which said person was convicted; and in the event no penalty is prescribed by statute for said offenses then the court shall prescribe the maximum term of imprisonment; but nothing in this sentence applies to any case in which the sentence is life imprisonment or to the service of time for nonpayment of a fine. ²⁶⁹ See Acts 1947, ch. 924; Acts 1951, ch. 13; Acts 1964, ch. 45; Acts 1966, ch. 385. Looking at the three year exception provision in § 139 (a) with the provisions of § 689, we see no constitutional infirmity with respect to equal protection. The three year exception encompassed institutions for the confinement of youthful male offenders, i.e., those from sixteen to twenty-five years of age (the two Hagerstown facilities) and juvenile offenders (any juvenile institution).

It is obvious that the Legislature believed that such offenders would ordinarily not be hardened or dangerous criminals and were better confined in institutions more adapted to their rehabilitation than other places of confinement where they would intermingle with older, seasoned and dangerous criminals. 6 We find it plain upon application of the rules by which the equal protection contention must be tested to the statutory scheme evident from § 139 (a) and § 689 that the difference in permissible punishment between escapers from the institutions specified in the challenged exception and escapers from other places of confinement is sufficiently related to a legitimate state interest so as not to be without any reasonable basis and purely arbitrary. Accord, Alex v. State, 484 P. 2d 677 (Alaska 1971); People v. Gardner, 15 Ill. App. 3d 255 , 304 N.E.2d 125 (1973); State v. Pebworth, 260 La. 647 , 257 So. 2d 136 (1972). However, our conclusion that the three year exception in § 139 (a) when viewed with § 689 has no equal protection infirmity does not furnish a complete resolution of the issue.

Imposed over § 689 is the mandate that offenders are to be sentenced to the jurisdiction of the Division of Correction instead of to institutions. This requirement was first established by Acts 1967, ch. 695, and, as now in effect, appears in Md. Code (1957,1976 Repl. Vol.) art. 27, § 690. The law is applicable to all judges exercising criminal jurisdiction, ²⁷⁰ § 690 (a), when a sentence of three months or more is imposed, subsection (c). 7 Subsection (b) reads in relevant part: Notwithstanding any of the provisions of this article or any other law to the contrary, on and after June 1, 1967, judges, in the sentencing of convicted persons (1) for any offense for which the provisions of this article or any other law requires the imprisonment to be served at any one of those institutions enumerated in § 689 of this article or (2) any offense for which prior to June 1, 1967, the sentence was made for whatever reason to one of those institutions in § 689, shall in all such cases sentence such persons to the jurisdiction of the Department of Correction.

All such persons shall be committed to the custody of the Commissioner of Correction and delivered to him for imprisonment. Thereafter all such persons shall be held confined in, assigned to or transferred to such of the institutions and facilities under the jurisdiction of the Department as the Department from time to time may order, including State Police barracks where such use is convenient and practical. This provokes inquiry of the use the Division of Correction is making of the Hagerstown facilities. 8 In each case sub judice, the testimony of Howard Lyles, given on 24 February 1978 at the trial of State v. Rogers, et al. in the Circuit Court for Anne Arundel County, which involved the issue here before us, was before the trial court. 9 Lyles testified that he had worked for the Division of Correction, under its various designations, for twenty years. Since 9 November 1977, he has been the Assistant Commissioner of Operations, and for ²⁷¹ the preceding thirty-four months, he was “acting” in that capacity.

The duties and responsibilities of the Assistant Commissioner of Operations go to the administration of the Division, including classification, social services, security and general operation of the facilities. He described the Hagerstown facilities as a complex of two major correctional institutions. Both are medium security, meaning that the inmates need armed control but sentences are shorter — up to twenty years — than those being served by inmates in a maximum security institution. 10 Predominantly youthful offenders, namely those up to age 22, are housed in the Maryland Correctional Institution — Hagerstown (MCI) and the Maryland Correctional Training Center — Hagerstown (MCTC). MCI is the older institution, and its inmates, many of whom are first offenders or parole violators, usually are serving longer sentences than those persons who are confined in MCTC.

The Maryland Correctional Institution — Hagerstown was originally built for young offenders above juvenile age but not old enough to be placed in an adult institution. It was a “reformatory” and not classified as a juvenile institution. There are some adults being placed there for the reason that there is not space in the adult facilities. There are also some exceptional cases, such as inmates needing special protective custody, for which the House of Correction or the Penitentiary were not appropriate.

Lyles made clear that the Hagerstown facilities had not become a full part of the adult system. They are, in general, being ²⁷² operated in keeping with the original purpose — “the philosophy is there.” “[Predominantly the age groups are there. . . . And the only diversion, more or less, from the original establishment of the place, or the philosophy of why it was established is now due to space.” It was Lyles’ opinion that about twenty-five percent of the inmates were there because of