State v. Rogers

Gilbert, C. J., delivered the opinion of the Court. The appellees in these consolidated appeals escaped from lawful confinement in the Maryland House of Correction at Jessup, Anne Arundel County, Maryland. Each of the appellees was subsequently apprehended, returned to the custody of the Division of Correction, and indicted for the statutory offense of escape. Md. Ann. Code art. 27, § 139 (a).

They continued their “struggle to escape” * 1 by attacking the escape statute on the ground that it denied equal protection of the law to persons who escaped from any penal institution except those at Hagerstown, Maryland. Two judges of the Circuit Court for Anne Arundel County agreed with the appellees that the statute was unconstitutional and dismissed the indictments. The State, as it is permitted to do when an indictment is dismissed, 2 appealed to this Court. On motion, ⁵⁷⁵ we consolidated all the cases for the purpose of oral argument.

Appeal No. 182 Pursuant to then Md. Ann. Code art. 27, § 139 (a), Reginald Rogers, Matthew E. Walinski, Larry Woodhouse, Richard C. Harris, Preston Rich, Wilford Stovall, Brett Taylor, Neil H. Branch, Alvin Scott, and Vernon Hawkins were indicted by the Grand Jury for Anne Arundel County for the crime of escape. Each of the indictees filed a motion to dismiss on the ground that the statute under which they were charged was unconstitutional. The statute provided in pertinent part: “(a) 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, escapes he shall be guilty of a felony and on conviction 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 whatever additional period, not exceeding ten years, as the court may adjudge. The sentence so imposed shall be consecutive to the sentence under which the inmate was originally confined and may not be suspended.

However, for escapes from ' the Maryland Correctional Institution — Hagerstown or the Maryland Correctional Training Center — Hagerstown or any juvenile institution which have not involved an assault, the sentence may not exceed confinement for three years.” [ 3 ] The movants directed their attack to the fact that section 139 (a) prescribed different penalties for escape depending upon the institution from which the escape was made. Anyone who unlawfully fled confinement in “the Maryland ⁵⁷⁶ Correctional Institution — Hagerstown [(MCIH)] or the Maryland Correctional Training Center — Hagerstown [(MCTCH)] or any juvenile institution” when the flight involved no assault, was subjected to confinement for a period of time not exceeding three (3) years. All escapees from “any other place of confinement in this State,” were subject to a sentence of not more than ten (10) years. The movants vigorously contended that there was no rational basis for the distinction between MCIH, MCTCH, and the other institutions, and that because of the distinction without a difference, they were denied the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States and of Article 23 of the Maryland Declaration of Rights.

The motion was rejected by Judge E. Mackall Childs of the Circuit Court for Anne Arundel County because, as in Carter v. State, 38 Md. App. 400 , 381 A. 2d 309 (1978), the movants “failed to offer any evidence regarding types of inmates or training other than to state that the Hagerstown facility is described in the 1973-1974 Maryland Manual as a ‘medium security institution’ as is the House of Correction at Jessup [from which the movants had made their unlawful departure]____” Judge Childs was of the view that a single statement in the Maryland Manual in which the “Hagerstown facility” and the House of Correction were both-characterized as “medium security institutions” was not sufficient to demonstrate that there was no rational basis for the legislative classification. Subsequently, the movants sought and obtained a new hearing from another judge of the Circuit Court for Anne Arundel County. The movants introduced testimony from Howard Lyles, Assistant Commissioner of Operations, Maryland Division of Correction. Mr. Lyles told the court that the MCIH was originally “called the Penal Farm bécause it actually was a large tract of land and they did raise many crops____It was then later .. .renamed :.. the Reformatory for Males.

Then later, it was renamed and called the Maryland Correctional Institution for Men, and ... is now called the ... [MCIH].” It was primarily built and “designed for young ⁵⁷⁷ offenders that were just above the juvenile age____” It became a correctional institution “in the early ‘6Q’s.’ ” Mr. Lyles said that MCIH is “still at this date not a full part of the adult system” although the Department of Correction is “placing adults into that facility... [because of] the fact there is not space in the — you know, adult facilities....” Lyles further stated that “twenty-five per cent of... [the inmates] are there because of lack of space.” Those inmates are not segregated in any manner but are part of the general institutional population. If space in other institutions were available, “we would revert back to having predominately, in all possibility, all of the Hagerstown complex being for young offenders.” There was not one word of testimony that any of the “adults” were more than 25 years of age. The hearing judge felt that “the original legislative purpose for distinguishing between the inmates housed at Hagerstown and those in other facilities ... no longer exists----” He opined that there is no “proper or reasonable ground” for treating escapees from MCIH or MCTCH differently than escapees from other penal institutions, and that Md. Ann. Code art. 27, § 139 (a) was unconstitutional as violative of “the Equal Protection Clause” as well as “the Maryland Declaration of Rights.” 4 ⁵⁷⁸ Appeal No. 378 Approximately one month after disposition in the Rogers, et al., case, the same hearing judge, on motion, dismissed escape charges against Aaron B. Copley, Gary Wayne Jefferies, Thomas Lightfoot, Michael Johnson, Claudie West, Victor Marzullo, James E. Barnes, Edward R. Henry, Clarence Eugene Ross, Larry Williams, Earl Scott, and Marvin Franklin. The dismissals were granted for the identical reasons that Rogers, et al. was dismissed.

Appeal No. 426 Robert McGee was also indicted by the Grand Jury of Anne Arundel County on the charge of escape. McGee moved to dismiss the indictment because of what he perceived to be a constitutional defect. The trial judge did not see it that way and denied the motion. McGee was convicted and sentenced to nine (9) months incarceration, to be served consecutively to the term he was serving when he escaped.

After the decision in Rogers, et al. McGee filed a motion for reconsideration and rehearing. The trial judge that had presided at McGee’s trial granted the motion, reconsidered, and on the basis of the Rogers decision, dismissed the indictment. The Merits of the Appeal Obviously alarmed by what it perceives to be an erroneous abolition of the escape statute, the State seeks reversal. Here the State asserts: “THE LOWER COURT ERRED IN DECLARING MD.

ANN. CODE ARTICLE 27, § 139 (a), UNCONSTITUTIONAL BECAUSE THE STATE LEGISLATURE HAD A RATIONAL BASIS FOR ENACTING DIFFERING PENALTÍES DEPENDING UPON THE NATURE OF THE CORRECTIONAL INSTITUTION FROM WHICH THE ESCAPE WAS EFFECTED.’’ It is well settled that equal protection attacks will not be successful if, as in the matter now before us, the legislative ⁵⁷⁹ classification rests upon any rational basis rather than feigned differences. Administrator, Motor Veh. Adm. v. Vogt, 267 Md. 660, 677 , 299 A. 2d 1, 10 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358, 376 , 293 A. 2d 241 (1972); Allied American Co. v. Commissioner, 219 Md. 607, 623 , 150 A. 2d 421 (1959).

See also Schilb v. Kuebel, 404 U. S. 357 , 92 S. Ct. 479 , 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U. S. 471 , 90 S. Ct. 1153 , 25 L.Ed.2d 491 (1970); McDonald v. Board of Election Comm’rs, 394 U. S. 802 , 89 S. Ct. 1404 , 22 L.Ed.2d 739 (1969). We agree with the State that the Legislature did, indeed, have a rational basis for the distinction that it drew between escapes from MCIH or MCTCH and other penal institutions. As created, MCIH and MCTCH were visualized as housing youthful offenders who were above the age of juveniles but still within the classification of “youthful.” Md. Ann. Code art. 27, § 689, enacted by the Legislature in 1962, 5 specifies the age limits of those confined in Hagerstown to between 16 and 25. 6 In 1963, one year after section 689 so classified the Hagerstown facilities, the Legislature provided a less severe penalty for escapes from Hagerstown than from other places of confinement by adding an exception to the existing ⁵⁸⁰ language of section 139 (a). 7 Apparently the General Assembly believed that those youths who would be confined to MCIH or MCTCH would be neither hardened criminals nor dangerous offenders. To protect its Hagerstown officers, however, the Legislature carefully limited the lesser penalty to those escapes not involving assault upon the officers.

If an individual, in escaping from a Hagerstown detention facility, committed an assault upon a prison officer in the course of the escape, the three-year maximum penalty would not be applicable, and the offender could be sentenced up to ten (10) years imprisonment, consecutive to the sentence the offender was serving at the time of the escape. Md. Ann. Code art. 27, § 139 (a) should not be read in a vacuum but must be considered along with Md. Ann. Code art. 27, § 689. The latter section articulates the legislative purpose for the use of MCIH and MCTCH. “[W]e cannot escape history,” 8 and when the history of the use of the two Hagerstown institutions, including the legislative purpose for them, is weighed along with section 139 (a), it is clear that the statutory scheme for the difference in the degree of punishment for escape from MCIH or MCTCH as compared with escape from other penal institutions serves a rational purpose and is not subject to successful constitutional challenge merely because of that disparity. Johnson v. Louisiana, 406 U. S. 356 , 92 S. Ct. 1620 , 32 L.Ed.2d 152 (1972); Gibson v. State, 17 Md. App. 246 , 300 A. 2d 692 (1973).

See also Administrator, Motor Veh. Adm. v. Vogt, supra; Potomac Sand and Gravel v. Governor, supra; Allied American Co. v. Commissioner, supra. Paraphrasing what we said in Gibson , there is nothing invidious in the Maryland distinction between ⁵⁸¹ escapes from MCIH or MCTCH and other Maryland penal institutions. That this State chooses to treat its youthful, less-serious offenders who escape from Hagerstown in a manner that varies from the