# Patuxent Institution Board of Review v. Hancock

> Court of Appeals of Maryland · March 12, 1993 · 329 Md. 556

URL: https://www.frixlaw.com/law-library/cases/9651226

## Case

- **Full name:** PATUXENT INSTITUTION BOARD OF REVIEW v. Clarence J. HANCOCK
- **Court:** Court of Appeals of Maryland
- **Decided:** March 12, 1993
- **Citations:** 329 Md. 556; 620 A.2d 917; 1993 Md. LEXIS 36
- **Precedential status:** Published
- **Opinion:** Dissent by McAULIFFE
- **Judges:** Bell, McAuliffe
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651226

## How later opinions describe it (automated extraction)

- stating that as a condition of Mr. Hancock’s parole he was required to “attend weekly supervision as directed,” and that, in general, as conditions of parole, offenders face restrictions “not affecting the ordinary citizen or in which the ordinary citizen is entirely free to a…
- stating that “[r]evocation of probation . . . must be based on conduct occurring subsequent to the grant of probation, but prior to its expiration”
- finding liberty interest flowed from order of parole, prior to release

## Opinion text

McAULIFFE, Judge,
dissenting.
The Court is correct in identifying procedural faults growing out of Patuxent’s attempts to follow an ambiguous order issued by a trial judge in 1990. Because the procedure employed subsequent to the trial judge’s order diverted the attention of all parties from the basic question which *593 must be addressed—a question that was adequately identified by the trial judge’s order—Hancock is entitled to a new hearing at which the Patuxent Institution Board of Review (the Board) is entitled to show that Hancock’s conduct subsequent to the initial recommendation of parole justifies rescinding or refusing parole.
In January 1977, Hancock was sent to the jurisdiction of the Division of Corrections for life plus 35 years for the murder of a woman and for committing an assault with intent to murder on the woman’s 11-year-old son. In April of 1977 Hancock was found to be a “defective delinquent” and was accepted at Patuxent Institution. In September, 1977, after the law governing eligibility for acceptance at Patuxent changed, Hancock was found to be an “eligible person,” and remained at Patuxent.
On 19 November 1987 the Board recommended to the Governor of Maryland that Hancock be granted parole. On 13 July 1988, the governor rejected that recommendation. On 1 December 1988, Hancock was removed from work release when that program was suspended for all inmates. In November, 1989, the Board was advised of “problems” with Hancock because of alleged deterioration of performance, and on 15 March 1990, the Board revoked Hancock’s work release status. On 5 April 1990, the Board determined that Hancock was no longer an eligible person, and ordered his release from Patuxent and transfer to the Division of Corrections.
On 7 June 1990, this Court decided that the statutory requirement of gubernatorial approval for parole from Patuxent, which had been added by Chapter 588 of the Acts of 1982, could not constitutionally apply to persons incarcerated for crimes committed prior to the passage of that act. Gluckstern v. Sutton, 319 Md. 634, 672 , 574 A.2d 898 , cert. denied, 498 U.S. 950 , 111 S.Ct. 369 , 112 L.Ed.2d 331 (1990). On 24 July 1990, Judge John Carroll Byrnes entered an order in a Habeas Corpus case earlier brought by Hancock, holding that the granting of parole to Hancock was not subject to gubernatorial approval and directing further pro *594 ceedings in accordance with Hancock’s claimed right to parole.
On 8 August 1990, purporting to act in accordance with Judge Byrnes’ order of 24 July, Patuxent issued an “Order of Parole” for Hancock. On the same day, Dr. John Farrell, a psychologist at Patuxent, filed a request for a parole revocation warrant; a preliminary hearing was held; and Hancock was “removed” from parole pending a full hearing. On 6 September, the Board held a hearing and ordered Hancock’s parole revoked. Hancock’s appeal from that decision is now before the Court.
Matters began to go awry in this case when Judge Byrnes entered the order of 24 July 1990. Judge Byrnes was entirely correct in holding that Gluckstern v. Sutton, supra, applied to Hancock’s case because Hancock’s criminal activity occurred before passage of Ch. 588 of the Acts of 1982. Although Hancock may have been entitled to no more than a new parole hearing unfettered by the necessity for gubernatorial approval, I cannot fault Judge Byrnes’ decision to give Hancock the benefit of the Board’s previous approval of parole, and to place upon those who would resist parole the burden of showing circumstances that occurred subsequent to the initial decision which would persuade the Board that parole at the present time would be inappropriate. Judge Byrnes said in his order:
The Court is mindful of the fact that the petitioner may have engaged in conduct since the initial parole decision by the Board of Review that would militate against his release on parole at this time.
Had Judge Byrnes left it at that, an appropriate hearing would have been held and, I am satisfied, Hancock would have been denied parole because: 1) as a matter of law he was no longer eligible for parole from Patuxent; and, 2) his conduct subsequent to 19 November 1987 demonstrated that he posed a danger to society.
Unfortunately, Judge Byrnes directed the use of a particular procedure to test whether Hancock should be released *595 on parole. He ordered the Board to view the matter as if Hancock had been on parole since the entry of the Board’s original recommendation in 1987, and to release him on parole unless it issued a parole revocation retake warrant on or before 10 August 1990, alleging “conduct since the initial parole decision ... that would militate against his release on parole at this time.” Judge Byrnes recognized that utilizing this hypothetical framework posed certain problems because Hancock had in fact been in custody and was therefore unable to conform to certain standard conditions of parole, such as maintaining a job and reporting to a parole officer. He made it clear, therefore, that the Board “should focus on behavior over which petitioner has exercised control.” As an example, he said, proof of Hancock’s violation of one of Patuxent’s major disciplinary rules would suffice. The judge’s order did not consistently differentiate between hypothesis and reality, however, and in a single sentence the Board was directed “to parole [Hancock] on or before August 10, 1990, unless [the Board] within that time period commences appropriate and legally mandated procedures to revoke petitioner’s parole____”
Both parties attempted to comply with Judge Byrnes’ order, but from a reading of the transcript it is obvious that form got in the way of substance. Patuxent offered legally sufficient evidence to show that as a result of Hancock’s voluntary conduct subsequent to the earlier recommendation for parole, he was no longer eligible for parole because he longer qualified as an eligible person and had been transferred to the Division of Corrections, and because he would pose a danger to the community if released on parole. Yet, the Court of Special Appeals reversed the Board’s refusal to release Hancock on parole on the grounds that Hancock had not been shown to have violated any specific condition of parole of which he had been made aware.
If the parties had concentrated on the substance of Judge Byrnes’ order, it would have been clear that intervening conduct by Hancock which disqualified him from parole was to be considered, as well as conduct that violated specific *596 conditions of parole which hypothetically would have been imposed.
In Matthews v. State, 304 Md. 281, 292 , 498 A.2d 655 (1985), this Court held that
a trial court has the authority to revoke probation for criminal acts committed after the imposition of sentence but before service of probation based on a condition implicit in the grant of probation that the defendant obey all laws. (Footnote omitted.)
The requirement that a defendant obey all laws is not the only condition implicit in a grant of probation or parole. Equally implicit in the grant of parole from Patuxent Institution would be the conditions that the inmate remain legally eligible for parole status, and that parole of the inmate “will not impose an unreasonable risk on society____” Maryland Code (1957, 1990 Repl.Vol.) Art. 31B, § 11(b)(2). These are conditions “so basic and fundamental that any reasonable person would be aware of such condition[s].” Matthews v. State, supra, 304 Md. at 291 , 498 A.2d 655 (quoting Brooks v. State, 484 P.2d 1333, 1334 (Okl.Cr.App.1971)).
In the instant case two absolutely unequivocal conditions to the grant of parole existed by virtue of statute; there was no need to set them forth in a parole order, because without those conditions being met there could be no parole order. Those conditions, established by Art. 31B, § 11(b) were that: 1) the person to be paroled is an eligible person confined at Patuxent Institution; and 2) the parole of that person “will not impose an unreasonable risk on society.” Article 31B, § 11(b)(2). The “Request for Parole Revocation Warrant” alleged that Hancock’s conduct had resulted in an earlier finding by the Board that Hancock was no longer an eligible person, and because of his conduct he “is seen as posing a threat to the safety of the community____” The evidence of record is sufficient to support both allegations.
*597 Dr. John Farrell testified in opposition to the proposed parole. He conducted therapy for Hancock’s group, both before and after Hancock was on work release. In order to understand some of the concerns expressed by Dr. Farrell, it is necessary to know something of the nature of the offense for which Hancock was convicted.
On 29 February 1976 Hancock broke into the victim’s apartment when she was temporarily absent, intending to bind her three children and then sexually assault her when she returned. The victim returned after Hancock had bound one of the children. He then bound and gagged the victim and removed her clothing. The victim managed to remove the gag and began to scream. Hancock panicked, and with a hammer he found in the kitchen, beat the victim so badly that she later died. When the 11-year-old child of the victim attempted to come to the aid of his mother, Hancock struck the child 27 or 28 times, inflicting massive and permanent brain damage.
Dr. Farrell was concerned about Hancock’s failure to express remorse, particularly for what he had done to the child. Hancock apparently told Dr. Farrell in therapy that he had “backhanded” the child during the criminal incident. Dr. Farrell was also concerned about Hancock’s refusal to address the sexual aspect of his crime. Dr. Farrell said that in therapy Hancock insisted on presenting the offense as an impulsive act, arising from anger he felt because the victim had spoken sharply to him, and not involving a sexual component. The psychologist noted that Hancock had brought tape and cord from his home to the victim’s apartment, which indicated prior cognitive activity and probable sexual fantasizing. He also noted that when Hancock had been examined at Clifton T. Perkins Hospital, the doctors found “indications of sexual sadism.” Dr. Farrell felt that Hancock’s refusal to come to grips with the true facts of the crime, and with his motive to commit it, precluded successful therapeutic treatment. For this and other reasons, he also concluded that Hancock constituted “a threat to public safety.” Moreover, he testified that an *598 independent psychological examination of Hancock had been conducted subsequent to his removal from work release, and the examining psychologist found Hancock to be dangerous at that time.
The Court, although agreeing with the Court of Special Appeals that Hancock should not be denied parole for failure to conform to a rule of which he had no adequate notice, recognizes that “parole may be rescinded even before its physical service has begun, if the parolee has violated the law ... or ... for misconduct which makes it apparent that the parolee is presently unworthy of parole.” Court’s opinion at 592. The Court also correctly concludes that “[a]n allegation that the respondent has engaged in such misconduct, because he has already been paroled, must be tested by a prompt hearing.” Id. at 592. My concern is that the Court may be viewing “misconduct” too narrowly.
The Court suggests that “misconduct which makes it apparent that the parolee is presently unworthy of parole” must be determined only from “a review of the institutional records to determine whether the respondent has engaged in such misconduct.” Id. at 592. In so doing, the Court may be suggesting that only recorded infractions may properly be considered. For reasons I have pointed out, conduct short of an infraction, whether labeled misconduct or not, which persuades the Board that Hancock’s release will impose an unreasonable risk on society, will not only justify, but indeed compel, denial of parole. The same situation would be presented if, for example, Hancock had disclosed in the course of therapy that he intended to kill the victim’s son if he were released. This statement might not be considered “misconduct” or an “infraction,” but it most certainly would indicate that the inmate should not be paroled. Any conduct on the part of the inmate subsequent to the initial recommendation of parole, and for that matter any newly discovered information coming to the attention of the Board subsequent to that time, which would indicate that Hancock is currently dangerous, must be considered.
*599 Moreover, I disagree with the Court that at the hearing to be held the Board may not consider whether Hancock is an eligible person, and therefore eligible for parole. The Court reaches that conclusion on the basis of equitable estoppel, which I do not find applicable. The Board was merely trying to follow the hypothetical framework established by Judge Brynes’ order of 24 July 1990. The real substance of that order was to determine whether Hancock had “engaged in conduct since the initial parole decision ... that would militate against his release on parole at this time.” If Hancock has engaged in conduct since the initial parole decision that has lawfully 1 caused him to lose his status as an eligible person, he not only should not be granted parole, he cannot be granted parole by the Board. Article 31B, § 11(b). That is a matter the Board must be permitted to consider, and the consideration of such an issue is consistent with Judge Byrnes’ order.
When this case is . remanded, the notice given Hancock should be amended to include the allegations of violation of the implicit, and statutorily required, conditions I have discussed, and these matters should be considered at the new hearing.
. Hancock informs us that by two actions filed in the Circuit Court for Howard County he has challenged Patuxent Institution’s determination that he is no longer an eligible person, on the ground that he was not afforded procedural due process in the course of that determination. Proceedings in those cases were stayed pending the outcome of this appeal. After remand, the stay should be lifted and those cases should be promptly resolved. If Hancock prevails in those cases, parole could not be denied on the basis that Hancock is no longer an eligible person; on the other hand, if the action of the Board is affirmed in those cases, Hancock’s loss of status as an eligible person should bar his release on parole.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651226. Public record. Not legal advice.