Wood v. Director, Patuxent Institution

Per Curiam. This Court has heretofore reviewed the present application for leave to appeal from an order of Judge Robert E. Clapp, Jr., sitting in the Circuit Court for Frederick County, denying applicant’s petition for relief under the Uniform Post Conviction Procedure Act. See ⁵⁵¹ Wood v. Director, 5 Md. App. 289 . We remanded the case to enable the lower court to determine whether a plea of nolo contendere and a sentence of imprisonment thereafter constituted a “conviction” within the meaning of Md. Code, Art. 31B, § 6, in view of the provision in Md. Rule 723 c, which authorizes the acceptance of such a plea and the imposition of sentence “as on a plea of guilty, but without finding a verdict of guilty.” In accordance with our mandate, Judge Clapp conducted a hearing at which counsel for the applicant and the State submitted arguments.

Thereafter, Judge Clapp filed a well reasoned opinion in which he concluded, and we agree, that an individual “has been convicted and sentenced * * * for a crime or offense” within the meaning of Md. Code, Art. 31B, § 6, when he has been sentenced by a trial court upon a plea of nolo contendere. Accordingly, the application for leave to appeal will be denied for the reasons set forth in Judge Clapp’s Memorandum and Order, dated December 14, 1967, and his Opinion and Order, dated November 16,1968. Application denied. Opinion and Order of the Circuit Court for Frederick County (Clapp, J.) : In this Petition for Post Conviction relief the Court of Special Appeals has indicated in its Per Curiam Opinion in 166 September Term, 1967, Morris T. Wood v. Director, Patuxent Institution, that the issues raised by the applicant were fully dealt with in the previous decision of this Court and that, “ordinarily, the application for leave to appeal would be denied for the reasons set forth in the lower court’s Memorandum.” However, the case has been remanded for the following purpose: “Since Section 6 of Article 31B of the Annotated Code of Maryland would appear to make conviction for a crime or offense as defined therein, a prerequisite to activating the defec ⁵⁵² tive delinquency' proceedings contemplated by the Statute, the case will be remanded for a finding by the lower court of the effect, if any, that the' acceptance of the applicant’s plea of nolo contendere may have upon the validity of his confinement in Patuxent Institution.” This point was not raised by the applicant in his previous application for leave to appeal from an initial finding of defective delinquency, Wood v. Director, Patuxent Institution, 243 Md. 731 , nor in his Petition for Post Conviction relief in this case but the record discloses that he was sentenced to a term of three (3) years confinement by the Circuit Court for Frederick County (Schnauffer, C.J.) after an acceptance of a plea of nolo contendere to a charge of assault and battery.

The mandate of the Court of Special Appeals requires an interpretation of Section 6 of Article 31B of the Code providing for defective delinquency proceedings if a person, “has been convicted and sentenced in a court of this State for a crime or offense committed on or after June 1, 1954,” coming under one or more specifically designated categories of crime. There is no question that the crime for which the applicant was sentenced is within one of these categories and the sole question is whether he has been “convicted and sentenced” within the meaning of the Statute. Argument has been heard from the State’s Attorney for Frederick County and counsel for the applicant and no case has been found that is specifically in point on the facts, possibly because the Maryland Defective Delinquency Statute is unique in this country. However, there are numerous analogies.

In Fellner v.