Fox v. Director, Patuxent Institution

Per Curiam. Applicant had been convicted in the Criminal Court of Baltimore of perverted practice on 18 June 1965, and had been sentenced to imprisonment for a term of 5 years. On 14 February ⁴⁷⁶ 1966 he was found to be a defective delinquent at a court trial in the Criminal Court of Baltimore and was committed to Patuxent Institution. Application for leave to appeal from that determination was denied.

Fox v. Director, 244 Md. 725 . On 1 August 1968 he filed a petition for the purpose of having his defective delinquency redetermined. Upon hearing on 11 December 1968 he was redetermined to be a defective delinquent by Judge J. Harold Grady. Application for leave to appeal and a memorandum in support thereof has been filed by his court appointed-attorney.

His contentions are that the evidence was insufficient, that § 7 of Art. 31B, Md. Code is unconstitutional and that his hearing was “basically unfair.” The Director of Patuxent Institution testified that it was his opinion and that of his staff that the applicant meets the definition of a defective delinquent as defined by law. An interval note in the record before us also so states. A report of Dr. Philip F. Lerner, who examined the applicant at the request of the applicant’s attorney expressed the opinion that the applicant no longer fits the description of defective delinquent in accordance with the Maryland State Law. The point thus goes to the weight of the evidence and questions relating to the weight of the evidence are not available on application for leave to appeal if, in a non-jury case, the finding is not clearly erroneous.

Fox v. Director, supra, at 726. On the evidence before the court here, its finding was not clearly erroneous. The ground advanced for the contention that Md. Code, Art. 3IB, § 7 is unconstitutional is that although subsection (a) of § 7 requires