Robinson v. State

Menchine, J., delivered the opinion of the Court. John William Robinson, convicted of armed robbery in the Circuit Court for Anne Arundel County, had been sentenced to eight years imprisonment commencing on February 27, 1969. Robinson subsequently was assigned by the Department of Correction to the Eastern Correctional Camp, Church Hill, Queen Anne’s County, Maryland, for confinement in that Camp under a plan of “work release.” He began work with the Grasonville Fisheries under that work release plan. On July 14, 1972 the management of Grasonville Fisheries reported to Correctional Camp authorities that Robinson had left his work detail at about 8:45 p.m.

When informed that Robinson had returned to Grasonville Fisheries at 10:50 p.m., Camp authorities immediately ordered State Police to arrest Robinson and to imprison him in the Caroline County Jail at Denton. This was done forthwith. At midnight, “the balance of the inmates that were on work release program at Grasonville Fisheries were ready to be brought in from the job.” The interval between 8:45 p.m. and 10:50 p.m., when Robinson was absent without leave from his employment, was said to have been applied by Robinson to the commission of criminal acts. He was not, however, indicted ⁴⁴⁰ or tried for any offense occurring during that interval.

Accordingly his conduct during that period plays no role in the determination of the subject appeal. Robinson waived a jury trial in the Circuit Court for Caroline County, and was tried for escape under a two count indictment. The first count charged violation of Article 27, § 700A; the second charged violation of Article 27, § 139. Robinson was found guilty of violation of § 700A under the first count, but was found not guilty of violation of § 139 under the second count.

Robinson urges that the facts did not permit conviction under § 700A. We agree. Article 27, § 700A, in pertinent part, reads as follows: “(c) * * * * In the ‘work release’ plan of any prisoner, the Commissioner shall include as a specific term or condition the place where such prisoner is to be confined when not released for the purposes of the ‘work release’ program. If any prisoner released from actual confinement under a ‘work release’-plan shall wilfully fail to return to the place of confinement so designated at the time specified in such plan, he shall be guilty of a felony and, upon conviction, shall be subject to the penalties provided in § 139 of Article 27.” [Italics supplied] Article 27, § 139 — Cumulative Supplement — 1972, in pertinent part reads as follows: “If any offender or person legally detained and confined in the penitentiary or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, shall escape he shall be guilty of a felony and on conviction thereof by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement in the penitentiary, jail or house of correction for such additional period, not exceeding ten years, as the court may adjudge.

The sentence ⁴⁴¹ so imposed shall be consecutive to the sentence under which the inmate was originally confined and shall not be suspended.” The State argues — quite correctly — that we held in Shifflett v. State, 4 Md. App. 227 , 242 A. 2d 182 , that the escape of a prisoner while under constructive custody under a work release program was in violation of Article 27, § 139; and in Beasley v. State, 17 Md. App. 7, 12 , 299 A. 2d 482, 485 , that § 700A did not supersede § 139. Those decisions do not, however, aid the State’s position in the subject case. It is true that the record below contains facts which, if believed, would have supported conviction under § 139 within Shifflett, supra. It is equally true that in Beasley, supra, we held that there was no inconsistency or repugnancy between § 700A and § 139 and that both were in full force and effect.

Thus, in a proper factual setting, the two sections would permit a prosecution choice to proceed under either or both; and admit of judicial selection as to guilt or innocence under either. § 139 is a broadly based statute