Silvestri v. Director, Patuxent Institution

Orth, J., delivered the opinion of the Court. Joseph Samuel Silvestri (applicant) was convicted of robbery with a deadly weapon at a court trial in the Criminal Court of Baltimore and sentenced to not more than 5 years. 1 By order of the court of 13 May 1963 he was referred to Patuxent Institution for evaluation as a possible defective delinquent. Upon hearing he was found to be a defective delinquent by the court on 29 November 1963. Application for leave to appeal was denied.

Silvestri v. Director, 234 Md. 641 . It was redetermined that he was a defective delinquent upon hearing on 10 November 1966 and he was recommitted to Patuxent Institution. On 29 May 1969 he again petitioned for a redetermination of his defective delinquent status. Md. Code, Art. 31B, § 10(a).

Upon hearing on 10 Oc ⁴⁰³ tcber 1969 he was determined by a jury to be a defective delinquent and by order of the Superior Court of Baltimore City the same date was recommitted to Patuxent Institution. 2 He seeks leave to appeal from the redetermination. He alleges that he was denied due process of law and effective representation of counsel. Applicant claims a violation of due process because he did not receive a “formal arraignment hearing as prescribed by Code, Art. 31B, § 8 (a).” The statute to which applicant refers clearly relates only to an original determination of defective delinquency under §§ 6 and 7 and not to redetermination hearings under § 10. It is upon the original report of Patuxent Institution stating, that a person is a defective delinquent that under § 8(a) “The Court shall forthwith summons the person before it and advise him of the substance of the report and of the pendency of the hearing hereinafter provided [and] shall further advise him of his right to be represented at such hearing by counsel of his choice, or if he has no choice, by competent counsel appointed by the court.” The procedure for a redetermination of defective delinquency is provided by § 10.

Subsection (a) thereof prescribes, in relevant part, that upon a petition for redetermination : “* * * The court shall forthwith proceed to hear and determine the matter. If the person so confined, or anyone in his behalf, shall pray a jury trial, the court shall empanel a jury of twelve persons * * *. Any person in interest shall have the right to counsel and to process to compel the attendance of witnesses. * * The petition for redetermination here was filed by applicant’s retained counsel. A petition to employ a private psychiatrist to examine applicant was filed and granted on 27 June 1969.

Dr. Philip F. Lerner was employed, examined applicant and filed a report dated 15 July 1969. ⁴⁰⁴ Applicant requested and obtained a hearing by jury and witnesses were