State v. Musgrove

Hornby, J., delivered the opinion of the Court. The question presented by this appeal is whether the order of court granting habeas corpus and releasing a patient from Patuxent Institution was appealable under the circumstances of this case. When Frank Harrison Musgrove entered a plea of guilty to a charge of storehouse breaking with intent to steal, the Circuit Court for Montgomery County sentenced him to the Correctional Institution for an indeterminate period of time not to exceed eighteen months from June 12, 1964, and two days later, on its own initiative, ordered him transferred to Patuxent to be examined for possible defective delinquency pursuant to the provisions of Article 31B. 1 At Patuxent, although the patient persistently refused to permit members of the staff to examine him as directed by the order of court, he did not commit any other infractions of the rules. As a result of his intransigence, however, the institution was unable to state its findings in a written report to the court within the period of six months fixed by the statute.

In his petition for a writ of habeas corpus, the patient, besides alleging that he had not been determined to be a defec ⁵²⁵ tive delinquent and was therefore “illegally confined and restrained” by Patuxent, claimed that his sentence, allowing credit for good behavior, had expired. At the hearing, the petitioner contended that because his sentence had expired and Patuxent had failed to file a report as to his condition or bring him to trial on the question of defective delinquency, he was entitled to a release. On the other hand, the State’s Attorney, although conceding that the prison term of the petitioner had expired, contended that the patient should not be released because he had made it impossible for Patuxent to conduct the examination on which the report would have been based. During the course of the proceedings before Judge James H. Pugh, the Court suggested that if an examination by the Patuxent staff was desired, the deposition of the patient for discovery purposes could have been taken.

The Court further suggested that based on the prior record of the patient the staff could have reached a conclusion as to whether he was a defective delinquent, and if they concluded that he was, then the proceeding, involving a determination of his defective delinquency, could have been set down for trial, whereat the patient could have been called as a witness. The judge, although aware that he was hearing a civil proceeding, also declared that if he were the patient he would not “cooperate with” the staff by submitting to an examination because that would “be giving evidence against yourself.” Later on he expressed a similar opinion by saying that regardless of “what the law says [that] would be incriminating yourself, because you would run the risk of staying in jail the rest of your life.” In a written opinion filed two days later, the judge, besides saying that the time within which the institution must report the result of its findings had long since expired and that the sentence imposed on the petitioner in the criminal case had likewise expired, stated that an alleged defective delinquent was not required to talk to the staff or discuss any matters concerning his possible defective delinquency and that, since the character of the required examination was not specified, nor limited to oral discussion, it could “take any form that the * * * [staff] desire [d] to use.” The order attached to the opinion granted the writ sought and released the patient from Patuxent, and the State appealed. ⁵²⁶ The first question raised by the State on appeal involves an interpretation of the meaning and purpose of the statutory requirement that the staff shall make a determination (as set forth in § 7(a) of Art. 31B) “on the basis of all the assembled information, plus their own personal examination and study” as to whether or not the patient is a defective delinquent. The third question, a corollary to the first, is an inquiry as to whether alternative procedures, not sanctioned by statute or rule of court, may be employed in a defective delinquent proceeding. The second question is whether an order of court transferring a person to Patuxent for an examination (pursuant to § 6 (e) of Art. 31B) “until such time as the procedures * * * for the determination of whether or not said! person is a defective delinquent have been completed” may be defeated by the refusal of a patient to submit to such examination.

The fourth and final question, which is corollarial to the second, is whether the patient should have been released on habeas corpus before it was shown that the criminal sentence had in fact expired. The appellee promptly moved to dismiss the appeal on the ground that he had been confined as a result of a proceeding under Article 31B, and that the appeal was barred by the provisions of § 645A (e) of Article 27. In answering the motion to dismiss, the appellant, in addition to maintaining that the appeal was authorized because the petition neither involved the legality of a conviction, sentence or imprisonment nor confinement as the result of a proceeding under Article 3IB, contended that the order releasing the appellee from confinement was unconstitutional (and therefore appealable pursuant to Maryland Rule Z56) in that it was violative of the provisions of Article 31B authorizing the confinement of a person in Patuxent until an evaluation of defective delinquency can be made. This Court, in advancing the case for argument, ordered that arguments on the motion to dismiss and on the merits be heard together.

We think the motion to dismiss the appeal must be granted because the lower court order releasing the patient on a writ of habeas corpus under the circumstances of this case is not appealable. The Post Conviction Procedure Act (codified as §§ 645A ⁵²⁷ through 645J of Article 27), originally enacted- by Chapter 44 of the Laws of 1958, provided, inter alia, the procedures for challenging the legality of incarceration under judgment of conviction of a crime and imprisonment therefor, including confinement as a result of a proceeding under Article 3IB, and further provided a right to apply to this Court for leave to appeal from orders passed under the Act. And, having also provided that appeals to this Court in a habeas corpus case should not be permitted or entertained, the right of appeal in habeas corpus proceedings (theretofore provided by § 6 of Article 42) was repealed by Chapter 45. Thereafter no other change was made with respect to the right of appeal in habeas corpus cases until the enactment of Chapter 442 of the Laws of 1965 amending § 645A of Article 27.

That amendment, in addition to rewriting subsection (a) and adding other subsections, designated former subsection (b) as subsection (e), rewrote the first sentence and added the last sentence. As amended, subsection (e) of § 645A provides in pertinent part: “The remedy herein provided is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court * * * [and certain inferior courts] or any remedy of direct review of the sentence or conviction. * * * Hereafter no appeals to the Court of Appeals of Maryland in habeas corpus * * * cases * * * shall be permitted or entertained. * * * Provided, however, that nothing in this subtitle shall operate to bar an appeal to the Court of Appeals (1) in a habeas corpus proceeding instituted under § 25 of Article 41 * * * or (2) in any other proceeding in which a writ of habeas corpus is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence of death or imprisonment therefor, including confinement as a result of a proceeding under Article 3IB * * The effect was to allow appeals in habeas corpus proceedings involving extradition and constitutional rights but bar appeals in a case such as this where the purpose was to challenge the legality of the release of a person from confinement in Pa ⁵²⁸ tuxent. See Cumberland v. Warden, 225 Md. 636 , 171 A. 2d 709 (1961), cert. den. 369 U. S. 855 (1962); Brady v. State, 222 Md. 442, 160 A. 2d 912 (1960). In Brady , which was decided before the amendment made by Chapter 442 of the Laws of 1965, it was said that while the P.C.P.A. did not abrogate the remedy formerly available under the writ of habeas corpus, it took away the right of appeal from an order denying the writ.

We think it is apparent that one of the purposes of the amendment of 1965 relating to conviction, sentence and imprisonment generally was to include confinement under Article 3IB in the same category. It follows that although a patient at Patuxent may avail himself of the right provided by § 645A (a) of Article 27 to set aside or correct a sentence as well as the right to petition for habeas corpus provided by § 10 (c) of Article 31B, it is certain that neither a patient nor the State has a right to appeal from an adverse decision in a habeas corpus proceeding. But the State, principally on the theory that the remarks made by the judge during the course of the proceedings on the petition for a writ of habeas corpus—indicating that the patient did not have to cooperate with the staff at Patuxent because that would be giving incriminating evidence against himself—had the effect of holding that Article 3 IB was unconstitutional insofar as it required a patient to submit to an examination, contends that the provisions of § 19 of Article 42 afforded the State an “automatic” appeal. Section 19 provides in pertinent part that: “Whenever any court * * * or when any judge of any court * * * having jurisdiction * * * shall release or discharge any person * * * under the writ of habeas corpus, charged with the violation of the provisions of * * * any article or section of the Code * * * upon the ground, or for the reason, that such * * * article or section * * * is unconstitutional and void, in whole or in part, because contrary to the Constitution or Bill [Declaration] of Rights of