Martin v. Director

Orth, C. J., delivered the opinion of the Court. On 25 May 1971' in the Circuit Court for Montgomery County HOWARD MARTIN, JR. pleaded guilty to petit larceny (the 2nd count of the indictment in Criminal 12041), and on 2 September 1971 sentence was imposed. The docket entries read: “Sentence of the Court (Moore, J.) to be confined in the Department of Correction for Eighteen (18) months as to Howard Martin, Jr. Defendant to be allowed two (2) months credit for time already served in jail.” On the same day, upon petition by the State, the court ordered that Martin be delivered to Patuxent Institution for evaluation as a possible defective delinquent. The diagnostic staff report of Patuxent, dated 1 February 1972, filed in the case on 3 April 1972, concluded that Martin met the definition of a defective delinquent and recommended that he be committed to Patuxent in accordance with Code, Art. 31B.

On 5 April the State requested a hearing. On 21 April Martin was brought into court and counsel was appointed to represent him. On 19 May he filed a petition for habeas corpus and injunctive relief, claiming the procedures at Patuxent violated his constitutional rights. A hearing on the petition was held on 25 May.

Relief prayed was denied but a request by Martin for a continuance with respect to the hearing for determination of his defective delinquency so he could obtain a private psychiatric examination was granted. The determination hearing was set for 24 October. On 26 ⁵⁰⁷ September, upon petition by the State, the court ordered that the case be continued from the trial docket of Tuesday, 24 October, and rescheduled on a date “which is not a Tuesday,” because the members of the Patuxent staff, needed to testify on behalf of the State, were not available. Tuesday being “the day on which all members of the staff gather for the purpose of diagnostic evaluations of inmates at Patuxent Institution.” Hearing was set for 11 January 1973.

On 9 January Martin filed two motions “for order of transfer of petitioner from Patuxent Institution to another facility of the State Department of Corrections.” One alleged he was committed to Patuxent without a due process hearing. The other claimed that the evaluation report of him was filed more than six months after his transmittal to Patuxent and that he had fully served the sentence imposed on him. He also filed a motion in limine to exclude the evaluation of him. Upon denial of the motions after hearing on 11 January and upon denial of an oral motion to dismiss the proceedings, the hearing on. the issue of defective delinquency proceeded before a jury.

On 12 January the jury found that he was a defective delinquent. The same day the court ordered that he be committed to Patuxent “as a defective delinquent for an indeterminate period and until released by due process of the law.” On 6 February 1973 Martin noted an appeal. By order of this Court of 16 April 1973 the appeal was treated as an application for leave to appeal. Art. 31B, § 11; Maryland Rule 1094.

On 11 May an amended application was filed. It contained five reasons why the order of the court should be reversed, Maryland Rule 1094 a 2 (a): (1) the denial of an unlimited right to appeal is a denial of equal protection of the laws and procedural due process; (2) the burden of proof to establish defective delinquency should be beyond a reasonable doubt; (3) due process of law was violated because “the procedure followed for commitment as a ⁵⁰⁸ defective delinquent is considerably different from those procedures followed in civil commitments outside of the defective delinquency act”; (4) it was improper for the Patuxent psychologist to read to the jury his prior criminal record; (5) prior medical records should not have been used against him without the availability of persons making such medical entries for cross-examination by the defense. In an unreported opinion, Martin v. Director, No. 23, September Term, 1973, Defective Delinquent, filed 16 May 1973, we denied the application as to reasons (1), (2), (4), and (5). We noted that under reason (3) Martin contended that: (i) the power of the State to have a determination of his defective delinquency expired with the expiration of his sentence, citing McNeil v. Director, 407 U. S. 245 ; (ii) the reporting provision of Code, Art. 31B, § 7 (a) is mandatory and not directory; (iii) the procedures for determining defective delinquency are illegal because different from the procedures for civil commitment for insanity.

We denied the application as to (iii). We granted it, however, as to (i) and (ii), and by order of 17 May 1973 directed that the case be transferred to the regular appeal docket for further proceedings pursuant to Chapter 1000 of the Maryland Rules of Procedure as if the order granting leave to appeal were an order of appeal filed pursuant to Rule 1012. See, Code, Art. 31B, § 11; Rule 1094 c. We advanced the case for argument, limiting the questions to be presented to the following: I. Is the reporting provision of Code, Art. 31B, § 7 (a) mandatory or directory?

II

May a determination of defective delinquency ⁵⁰⁹ be had after the sentence for the substantive offense has expired? I Code, Art. .31B, § 7 (a), after setting out by whom an examination for evaluation as to possible defective delinquency shall be made and the evaluation criteria generally, provides: “They 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 occurs.” 1 The record submitted to us does not show when Martin was received in the Institution for examination, 2 although it is patent that it was not earlier than 2 September 1971, the date of the order for his delivery for evaluation. In any event, the date is not controlling because the Court of Appeals, in Director v. Cash, 269 Md. 331 , adhering to its prior indication in State v. Musgrove, 241 Md. 521 , concluded that “the language in Art. 31B, § 7 (a), as amended by Chapter 491 of the Laws of 1971 is directory and not mandatory.” The point was tried and decided below on a motion by Martin for an order to transfer him from Patuxent to another facility of the State Department of Correction. Cash is dispositive of the issue.

We hold that the court below did not err in denying the motion. II Prior to the hearing at which Martin was found to be a defective delinquent, he filed a second motion for an order to transfer him from Patuxent. This motion relied on McNeil v. Director, 407 U. S. 245 . Martin alleged that he had fully served the sentence imposed on him upon his conviction of petit larceny in the Circuit Court for Montgomery County. ⁵¹⁰ He contended that McNeil proscribed a determination of defective delinquency after the sentence for the substantive offense had expired.

The court below denied the motion. After being convicted and sentenced for a criminal offense, McNeil was ordered to be committed to Patuxent for evaluation as a possible defective delinquent. He refused to cooperate with the examining staff and although he was never determined to be a defective delinquent upon a judicial hearing, he remained confined in the Institution. He filed a petition for post conviction relief, alleging that the State’s power to hold him under the order made on the basis of an ex parte judicial determination that there was reasonable cause to believe that he may be a defective delinquent had expired because his sentence had expired.

The trial court . denied relief, holding that a person referred to Patuxent for the purpose of determining whether he is a defective delinquent may be detained in Patuxent until the procedures for such determination have been completed Regardless of the expiration of the criminal sentence. The Court of Appeals denied leave to appeal and the Supreme Court of the United States granted certiorari, McNeil v. Director, 404 U. S. 999 . The opinion of the Court held that McNeil was entitled to be released. It found that he was “confined in Patuxent without any lawful authority to support that confinement.

His sentence having expired, he is no longer within the class of persons eligible for commitment to the Institution as a ' defective delinquent.” McNeil v. Director, 407 U. S. at 252 . In reaching its holding, the Court considered and rejected three contentions of the State. First, the State contended that McNeil had been committed merely for observation, and that a commitment for observation need not be surrounded by the procedural safeguards (such as an adversary hearing) that are appropriate for a final determination of defective delinquency. The Court said, at 249-250: “A confinement that is in fact indeterminate cannot rest on procedures designed to authorize a brief period of observation ...

If the commitment is properly regarded as a short-term confinement with a limited purpose, as the