Appendix — Patuxent Institution Board of Review v. Hancock

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

TABLE OF CONTENTS

April 14, 1993 Order of Chief

Justice William Rehnquist as

Circuit Justice in Patuxent

Institution Board of Review

v. Hancock, No. _, October

April 2, 1993 Order of the

Court of Appeals of Maryland

in Patuxent Institution Board

of Review v, Hancock, No. 5,

September Term, 1992 .......

March 12, 1993 Opinion of the

Court of Appeals of Maryland in

P Setiuton Soest of

Review v, Hancock, 329 Md. 556,

620 A.2d 917 (majority opinion

3a-77a; dissenting opinion

re a ng sk

February 18, 1992 Opinion of the

Court of Special Appeals of

Maryland in

No. 1144, September Term, 1991

July 3, 1991 Order of the Circuit

Court for Howard County in

H “ig Instituti

Board of Review, Case No.

we ss

——

September 6, 1990 Decision of

the Patuxent Institution Board

of Review in In The Matter Of

Clarence Hancock, No. 3310 ........... 116a

August 8, 1990 State of Maryland

Patuxent Institution Order

eer eee gt Or A hs 122a

July 24, 1990 Memorandum and Order

of the Circuit Court for Baltimore

City in Hancock v, Henneberry,

Case No. 90030905/H3825 ............ 129a

April 14, 1993

Ms. Carmen Shepard

Assistant Attorney General

200 St. Paul Place-20th floor

Baltimore, MD 21202

Re: Patuxent Institution Board of

Review,

v. Clarence J. Hancock

Application No. A-762

Dear Ms. Shepard:

The application for stay of the mandate pending

the timely filing and disposition of a petition for writ

of certiorari in the above-entitled case has been

presented to the Chief Justice who on April 14, 1993,

endorsed thereon the following:

"4/14/93

Denied

William Rehnquist"

Very truly yours,

WILLIAM K. SUTER, Clerk

Cynthia Rapp

Assistant Clerk

NOTE - FOR YOUR INFORMATION: a copy of

this letter has been sent to all interested

parties shown on the attached notification

list.

April 2, 1993

Carmen M. Shepard, Esquire

Attorney General’s Office

200 St. Paul Place

Baltimore, MD 21202

RE: Patuxent Institution Board of Review

v. Clarence J, Hancock

No. 5, September Term, 1992

Dear Ms. Shepard:

Please be advised that the motion for

reconsideration and the stay of the issuance of the

mandate were denied by the Court on April 1, 1993.

Very truly yours,

Alexander L. Cummings

Clerk

ALC:bmd

cc: Joseph B. Tetrault, Esq.

IN THE COURT OF APPEALS OF MARYLAND

No. 5

SEPTEMBER TERM, 1992

PATUXENT INSTITUTION BOARD OF REVIEW

Vv.

CLARENCE J. HANCOCK

Murphy, C.J.

Eldridge

Rodowsky

McAuliffe

Chasanow

Karwacki

Bell

JJ.

OPINION BY Bell, J.

Murphy, C.J., McAuliffe and

Karwacki, J.J. dissent.

Filed: March 12, 1993

We granted certiorari to review the judgment of

the Court of Special Appeals, which ordered Clarence

Hancock, the respondent, immediately released from

prison.

In 1976, the respondent was convicted of

murder, attempted murder, and assault and battery.

He was sentenced to life imprisonment, plus thirty-five

years. In April 1977, the respondent was accepted at

Patuxent Institution,' as a "defective delinquent."

' Patuxent Institution was established by the Maryland

General Assembly in 1951 to operate, separately and

independently from the prisons under the jurisdiction of the

Maryland Division of Correction. See Ch. 476, Laws

1951; Md. Code (1951) Art. 31B, § 1, et seq. The

purpose was to "provide efficient and adequate programs

and services for treatment with the goal of rehabilitation of

eligible person." Md. Code (1957, 1990 Repl. Vol), Art.

31B, § 2(b).

? A “defective delinquent" was:

an individual who, by __ the

demonstration of persistent

aggravated antisocial or criminal

behavior, evidences a propensity

When the defective delinquent statute was repealed,

effective July 1, 1977, see Acts 1977, Ch. 678, the

respondent was retained at Patuxent as an "eligible

person,” Le.,

a person who (1) has been convicted of a

crime and is serving a _ sentence of

imprisonment with at least three years

remaining on it, (2) has an intellectual

deficiency or emotional unbalance, (3) is

likely to respond favorably to the programs

and services provided at Patuxent Institution,

and (4) can be better rehabilitated through

those programs and services than by other

incarceration.

Md. Code (1957, 1976 Repl. Vol., 1980 Cum.

toward criminal activity, and who is

found to have’ either such

intellectual deficiency or emotional

unbalance, or both, as to clearly

demonstrate an actual danger to

society sO aS to require such

confinement and treatment, when

appropriate, as may make it

reasonably safe to society to

terminate the confinement and

treatment.

Md. Code (1957, 1976 Repl. Vol.), Art. 31B §5.

Suppl.), Art. 31B § 1(g). In 1984, the respondent was

approved for accompanied day leave. See Md. Code

(1957, 1982 Repl. Vol.), Art. 27, § 700D. In July

1985, pursuant to Md. Code (1957, 1983 Repl. Vol.),

Art. 31B, § 10,° Hancock was placed in Patuxent’s

work-release program and in September, his work

release status was changed to school-release.‘

> Section 10(a) provides:

(a) Eligibility for wor!

release and leave of absence. -

Persons transferred to the

Institution for treatment are

eligible for the work release and

leave of absence programs

provided for in §§ 700A through

700D-1 of Article 27 of the Code.

The functions of the warden or

Superintendent and_ the

Commissioner under those sections

shall be performed by the board of

review with respect to persons

confined in the Institution.

* Md. Code (1957, 1982 Repl. Vol.), Art. 27, §

7OOA(a) provides:

Pursuant to Art. 27, § 700D, Hancock was approved

for unaccompanied leave in 1986.

In 1987, the respondent was recommended for

parole. The statute then in effect required

gubernatorial approval in the case of an inmate serving

a life sentence. Md. Code (1957, 1983 Repl. Vol.),

Art. 31B § 11(b)(2).° That statute has been enacted in

(a) Establishment. - The

Department of Correction is authorized to

establish a "work release" program under

which prisoners sentenced to the jurisdiction

of the Department may be granted the

privilege of leaving actual confinement

during necessary and reasonable hours for

the purpose of working at gainful private or

public employment or attending school as

‘part of a work release program. Such

program may _ also_ include, under

appropriate conditions, releases for the

purpose of seeking such employment.

> Article 31B §11(b)(2) provided:

_ (b) Action by board of review prior

. - At any time after

transfer of a person to the Institution for

treatment as an eligible person but prior to

1982. See ch. 588, Law 1982. The Governor rejected

the recommendation. Subsequently, on December |,

1988, the work release program was suspended. See

Holmes v, Robinson, 84 Md.App. 144, 578 A.2d 294,

cert. denied, 321 Md. 501, 583 A.2d 275 (1991).

the expiration of the person’s sentence, the

board of review, upon review of the person

may take the following action:

a -

(2) If the board of review

concludes that (i) it will not impose an

unreasonable risk on society; and (ii) it will

assist in the treatment and rehabilitation of

the eligible person, it shall grant a parole

' from the Institution for a period not

exceeding one year. An eligible person who

is serving a term of life imprisonment shall

only be paroled with the approval of the

Governor. The board of review may attach

reasonable conditions to the parole, at any

time make reasonable and appropriate

modifications of these conditions, and

revoke the parole if it finds that the person

has violated a condition of the parole. The

board of review shall review the person’s

Status prior to the expiration of the parole

period, and may extend the parole.

Thereafter, in March 1989, citing "his deteriorating

behavior," the Board revoked the respondent’s

participation in the work release program. The

respondent was removed from Patuxent Institution on

April 5, 1990, after the Board concluded that he

behavior had become “unbefitting [of] continued

participation in the program and services” of Patuxent

Institution. The bases for this conclusion mirror the

allegations which later would be made in support of the

petition for parole violation filed by the Board.

We filed our opinion in Gluckstern v, Sutton,

319 Md. 634, 574 A.2d 898, cert. denied sub nom.

Henneberry v. Sutton, _—«U«.S. ___, 111 S.Ct. 369,

112 L.Ed.2d 331 (1990), on June 7, 1990. In that

case, we held that gubernatorial approval could not be

required in the case of Patuxent inmates whose life

‘ |

sentences were for offenses committed before July 1,

1982, the effective date of the statute; the statute could

not be applied retroactively. Id. at 669, 574 A.2d at

915.° Relying on that decision, the respondent filed

an habeas corpus action in the Circuit Court for

Baltimore City, in which he challenged the Governor’s

decision to withhold parole approval.

* In Gluckstern vy, Sutton, 319 Md. 634, 574 A.2d

898, cert. denied sub nom. Henneberry v, Sutton, _U.S.

, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990), the trial

court ordered “the Institutional Board of Review to afford

[the defendant] another parole hearing [based] ‘solely on

the facts and evidence as they existed when [it] originally

considered [the defendant] for parole . . . Id. at 646, 574

A.2d at 904. Should parole be granted, it permitted

Patuxent to “seek revocation of such parole ... on the

basis of any actions or conduct ... of [the defendant[]

occurring after" the date he was recommended for parole.

The court made clear that release from custody was being

ordered only if application for revocation of parole was not

filed immediately after the parole hearing. Id. at 647, 574

A.2d at 904. Significantly, we did not pass upon "the

propriety of the relief granted or . . . [as to] any specific

provisions of the order,” since "neither side in this Court

complains about the nature of the circuit court’s order or

about any of its specific provisions... ." Id. at 648, 574

A.2d at 904.

10a

' .

‘

The circuit court agreed that Gluckstern applied

and, on July 14, 1990, passed the following order:

.. .[The petitioner] be, and hereby is,

directed to parole [the respondent] on or

before August 10, 1990, unless [the

petitioner} within that time period

commences appropriate and _ legally

mandated procedures to revoke [the

respondent’s] parole, with a copy of the

Request For Issuance of Retake Warrant

form setting forth particularized grounds for

the alleged violation to be served on [the

respondent], his counsel and this Court on

or before August 10, 1990.

Citing Morrissey v. Brewer, 408 U.S. 471, 483-84, 92

S.Ct. 2593, 2601, 33 L.Ed.2d 484, 495 (1972), the

court explained:

The Court is mindful of the fact that [the

respondent] 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.

Consequently, the Patuxent Board of Review

is entitled to review [the respondent’s]

conduct since the parole recommendation to

determine whether he “has in fact breached

the conditions of parole.”

It concluded:

lla

Since [the respondent] has not been on

parole physically, the Court recognizes he

may not have satisfied many of the ordinary

terms and conditions of a parole order, e.g.

maintaining a job, reporting to a parole

officer at specified times. However, these

failings are not of his own_ volition.

Therefore, in deciding whether revocation is

warranted, the Board of Review should

focus on behavior over which [the

respondent] has exercised control.

Neither party appealed the judgment.

Consistent with the circuit court’s order, the

petitioner paroled the respondent.’ It issued him an

’ The panoply of rights usually associated with a

criminal case do not extend to violation of parole or

probation proceedings. Baldwin v. State, 324 Md. 676,

682-83, 598 A.2d 475, 478 (1991); Bergstein v. State, 322

Md. 506, 520, 588 A.2d 779, 785-86 (1991); Smith v.

State, 306 Md. 1, 7, 506 A.2d 1165, 1168 (1986); Dean v.

Smith, 291 Md. 198, 202, 434 A.2d 552, 555 (1981). The

due process clause of the Federal and State constitutions

establishes procedural guarantees that must be afforded a

parolee before he/she = be deprived of a liberty interest.

See Vv , 408 U.S. 471, 484, 92 S.Ct.

2593, 2602, 33 L.Ed. 12d 484, 496 (1972) ((1) written

notice of claimed violations; (2) disclosure of the evidence

against the parolee; (3) opportunity to be heard; (4) right

to confront and cross-examine witnesses; (5) a neutral and

detached hearing body and (6) written statement of

evidence relied upon in revoking parole). See also Black

12a

Order of Parole which expired August 2, 1991 and

contained special, as well as general terms and

conditions of parole.* One of the conditions was

General Condition #3: "The parolee shall not commit

any act which would be a violation of any Federal,

vy. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85

L.Ed.2d 636, 642 (1991); Baldwin v. State, 326 Md. at

683, 598 A.2d at 478; Adkins v. State, 324 Md. 641, 655

n.8, 598 A.2d 194, 201-02 n.8 (1991).

* The Order of parole required the respondent’s

acceptance. By accepting, which the respondent did when

it was issued to him, he acknowledged understanding and

agreed to abide by the terms and conditions of parole and

to waive extradition should he violate parole. It also

contained four special conditions:

1) The respondent must reside in an

halfway house;

2) The respondent must abstain from use of

alcohol or drugs and submit to tests for such

substances;

3) The respondent must stay away from

Ms. Theresa Knight and son; and

4) The respondent must attend weekly

supervision as directed.

Eighteen general conditions of parole were also prescribed.

13a

ae |

State Law or Municipal ordinance; and shall conform

to all rules of conduct imposed upon him by the

Patuxent Institution or authorized representative.”

Simultaneously, the petitioner served the respondent

with a Preliminary Hearing Notice’ notifying him of

the purpose of the hearing - to determine whether

probable cause exists to believe he violated parole and

the consequences of that finding, - and a Request for

Parole Revocation Warrant, charging the respondent

with violation of parole, Le, General Condition #3.

* Maryland Rule 4-222(b) provides that "an adult. . .

shall be released on personal recognizance under terms and

conditions that do not significantly restrain the defendant’s

liberty unless the judicial officer determines that there is

probable cause to believe that the . . . defendant committed

the offense . . . ." Because the petitioner had paroled the

respondent, he ordinarily would have been entitled to

immediate release. He could be held in custody pending

the parole revocation hearing only if the hearing officer

were to find probable cause to believe that the respondent

violated his parole and, thus, on that account, declined to

release him.

l4a

}

;

Specifically, the Board charged that during his last

year at the Institution, the respondent refused fully to

participate in the program services "vital to his

successful rehabilitation,” that, in "repeated instances,"

he “refused to discuss essential aspects of the

motivation for his crime and the factors necessary to

prevent its recurrence," and that, despite repeated

encouragement, "he consistently failed to cooperate in

his treatment” and addressed counseling sessions "in an

unsatisfactory manner." :

After the preliminary hearing, probable cause to

believe that the respondent failed to “conform to all

rules of conduct imposed upon him by the Patuxent

Institution or an authorized representative," having

been found, the hearing officer ordered the

respondent’s detention at Patuxent pending a formal

15a

parole revocation hearing.

Dr. Farrell, an institutional psychologist, who

had seen the respondent in group therapy, testified at

the formal revocation hearing. Concerning the

respondent’s participation in therapy, he said that the

respondent would become "evasive and general" in

response to his questions and that he did not respond

"favorably" to, nor "cooperate" in, treatment. Dr.

Farrell asserted that, indeed, the respondent had not

progressed as far as Dr. Farrell felt he should have.

Consequently, he recommended against the respondent

being released into the community. The Board agreed.

Concluding that the respondent "failed to comply with

the instructions and directives of his therapist...

[and] thwarted the purpose and mission of the

Institution," it found him in violation of the terms and

l6a

conditions of his parole.

The respondent appealed to the Circuit Court for

Howard County. That court affirmed, stating, "none

of the -bases set forth in [Maryland Code (1984)]

Section 10-215(g)(3) [of the State Gov’t Article!” for

10 Maryland Code (1984) § 10-215(g)(3) of the State

Government Article states that:

(g) Decision. - In a proceeding under this

section, the court may:

(3) reverse or modify the decision if

any substantial right of the petitioner may

have been prejudiced because a finding,

conclusion, or decision of the agency:

(i) is unconstitutional;

(ii) exceeds the statutory

authority or jurisdiction of

the agency;

(iii) results from an

unlawful procedure;

(iv) is affected by any

other error of law;

(v) iS unsupported by

competent, material, and

substantial evidence in light

of the entire record as

submitted; or

(vi) is arbitrary or

capricious.

17a

a reversal or modification of the Board’s decision have

been found." The Court of Special Appeals, in an

unreported opinion, reversed. Holding _ that

"revo[cation of appellant’s] parole, based on conditions

that appellant was not made aware of until the moment

his parole was revoked, is a violation of appellant’s

due process rights under Article 24 of the Maryland

Declaration of Rights and the Fourteenth Amendment

to the United States Constitution,” it ordered the

respondent’s immediate release from incarceration

"pursuant to the terms of the 19 November 1987

Review Board decision."

The Patuxent Institution Board of Review filed

a petition for certiorari and a motion to stay the

execution of the mandate of the Court of Special

Appeals. We granted both the petition and the stay.

18a

Characterizing the intermediate appellate court’s

decision as being based upon the failure of the

petitioner physically to release the respondent before

initiating revocation proceedings, the petitioner argues

that, in ordering the respondent’s release on parole, the

Court of Special Appeals reversed a final judgment

entered by the Circuit Court for Baltimore City in

prior, separate proceedings. That judgment, which the

respondent did not appeal, prescribed the procedure the

petitioner followed in revoking the respondent’s parole

in this case: it ordered the respondent’s release

"unless he *. . . has in fact acted ig violation of one or

more conditions of his parole [agreement],’ authorized

review [of the respondent’s] conduct since the parole

recommendation to determine whether he ‘has in fact

19a

breached the conditions of parole’" . . .; and directed

the petitioner to "focus on behavior for which [the

respondent] has exercised control." It asserts,

furthermore, that the reversal was on a ground that

was not raised by the respondent at any stage of the

proceedings. As the petitioner sees it, the July 1987

court order finally and validly determined whether

parole revocation proceedings could be initiated, and

concluded, prior to the physical release of the parolee.

The Court of Special Appeals’ holding, referring to the

procedure the petitioner followed, that "[i]t was utterly

at variance with the concept of due process of law and

basic fairness to charge the [respondent] with a

violation of a condition of parole when he was not on

parole ...," the petitioner maintains, constitutes "a

collateral attack on a long-since final order of the

20a

Circuit Court for Baltimore City." The petitioner’s

brief at 11.

The respondent does not dispute that he did not

challenge, at the administrative hearing, before the

Circuit Court for Howard County, or on appeal to the

Court of Special Appeals, the petitioner’s right to

revoke his parole before he had been physically

released. In fact, he does not question, in this Court,

either the validity or the propriety of the July 24, 1990

order of the Circuit Court for Baltimore City. The

respondent does dispute the _ petitioner’s

characterizations of the holding of the Court of Special

Appeals, and, hence, the issue before this Court. He

asserts that the intermediate appellate court held what

he has argued from the beginning, that due process

was offended when his parole was violated on the basis

2la

of a condition of which he had not been previously

apprised. Thus, as the respondent sees it, the issue

before this Court is not whether he could have been

charged with violating his parole when he was not on

parole, but rather it is about the notice due a parolee

before parole may be violated.

We agree with the respondent. The Court of

Special Appeals neither decided nor purported to

decide whether due process was offended by parole

revocation proceedings initiated before the respondent’s

physical release, in other words, before - was

paroled.

The intermediate appellate court did not address

the merits or propriety of the July 24, 1990 order.

That court acknowledged, agreeing with the petitioner,

that neither that order nor the procedure it prescribed

22a

Panerai

was before it. It was emphatic, however, that

[w]hat is before this Court is the decision of

the Circuit Court for Howard County

affirming the decision of the Patuxent

Institution Board of Review’s revocation of

appellant’s parole. As to the decision

affirmed by the Circuit Court for Howard

County and thus before us on this appeal,

the Board of Review violated the appellant’s

right to due process of law by revoking his

parole based on what is claims to be a

violation of a condition of his parole of

which he had never been given notice. The

Circuit Court for Baltimore City could not

authorize the Board of Review to do that;

and its ruling cannot be construed as

authorizing the Board of Review to deny

appellant due process of law. The most

onerous interpretation of the ruling of the

Circuit Court for Baltimore City and the

habeas corpus proceeding is that appellant’s

parole could be revoked before he was

released if he had violated some law or

engaged in conduct that any parolee may be

presumed to know would be a parole

violation. Appellant had no reason to appeal

that ruling.

Slip op. at 7-8.

The Court of Special Appeals decided this case

on an issue that the record reflects troubled the

23a

respondent from the very beginning,'' the adequacy

'! At the administrative hearing, the respondent’s

counsel commented, during cross-examination of the

petitioner’s chief witness, that he was "still not entirely

clear what rule Mr. Hancock violated." In his Petition for

Reversal of Administrative Agency Action, filed in the

Circuit Court for Howard County, in addition to contending

that the "proceedings and decisions violate the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution,” the respondent argued: “Patuxent could not,

and did not, identify a valid rule or regulation that [he]

allegedly violated" and that “assuming, arguendo, that the

alleged conduct occurred, Patuxent failed to identify a valid

parole condition that encompasses the alleged misconduct."

Before the Court of Special Appeals, the respondent

presented five issues, three of which clearly implicate the

adequacy of the notice he received:

l. When there is no parole condition

requiring the attendance in therapy, does the

revocation of Mr. Hancock’s parole for

alleged failing in therapy violate

constitutional due process?

y B Can a_ therapist impose oral

conditions regarding therapy when there is

no written condition requiring Mr. Hancock

to attend therapy?

a Is it unconstitutionally vague and

overbroad to apply a _ general parole

condition requiring obedience to all laws and

rules of conduct to alleged failings in

therapy?

In his reply brief at p.2 in the Court of Special Appeals,

the respondent lamented, "[he[{ was charged with violating

24a

of the notice he was given of the conditions of his

parole. Indeed, that is precisely what the court said:

We agree with appellant that

revoking his parole, based on conditions that

appellant was not made aware of until the

moment his parole was revoked, is a

violation of appellant’s due process nights

under Article 24 of Maryland Declaration of

Rights of the Fourteenth Amendment to the

United States Constitution.

Slip op. at 4. This is also made crystal clear when the

court’s opinion is read in its full context. After noting

that parole revocation proceedings consist of two steps,

quoting Morrissey v. Brewer, 408 U.S. 471, 479-80,

92 S.Ct. 2593, 2599, 33 L.Ed.2d 484, 493 (1972), the

court said:

The actions of the Review Board at

Patuxent prevent us from even considering

the first step [Le. the factual determination

whether the parolee has violated one or

terms and conditions of parole by conduct which allegedly

occurred before he ever received notice of those terms and

conditions." (emphasis added).

25a

more conditions of parole]. Appellant was

never apprised of the conditions of his

"short-lived" parole. The

Sutton, 319 Md. 634, 574 A.2d 898, cert.

denied, US. mite 5% 369, 112

L.Ed.2d 331 (1990)] d decision eliminated the

gubernatorial approval requirement for

Patuxent inmates serving life sentences for

offenses permitted before 1 July 1982.

Appellant falls into this class of Patuxent

inmates. It was utterly at variance with

concepts of due process of law and basic

fairness to charge appellant with a violation

of a condition of parole when he was never

on parole and had never been apprised of

what the conditions of his parole would be.

Perhaps Patuxent’s proceedings would have

been more colorable if appellant had

violated some state or federal law. Such is

not the case. At the revocation hearing,

Patuxent personnel testified that appellant

had not broken any law or violated any

institutional disciplinary rule. It is alleged

that appellant violated the last directive of

General Condition Number 3, by failing to

"conform to all rules of conduct imposed

upon him by Patuxent Institution or an

authorized representative."

Slip op. at 6-7 (emphasis added). Later, when

summarizing its decision, the court observed:

[A]ppellant was entitled to know the

conditions of his parole in order that he be

able to protect his liberty interest in

26a

remaining free, once he was actually

released. "[W]hen notice is a person’s due,

process which is mere gesture is not due

process.”

, 339 U.S. 306, 315, 70

S.Ct. 652, 657, 94 L.E#d. 865 [,874]

(1950).

To be sure, the court did comment that the

respondent "was never on parole,” and referred to the

Gluckstern decision, which buttresses that point.

Adding "and he has never been apprised of what the

conditions of his parole would be," clearly gave its

comment context and meaning. Its reference to

Gluckstern may also be read as the court again making

the point that the respondent, having never been

paroled, had never previously been apprised of the

conditions of his parole.

The Court of Special Appeals, not having

decided the issue on the ground alleged by the

petitioner and, furthermore, the ground upon which it

27a

did decide the case having been properly raised at

every stage of the proceeding, which the petitioner

does not seriously dispute, the matter is properly

before us.

Before we can determine whether the

respondent’s parole was properly revoked, we must

consider the nature of parole and its function in the

corrections context. The Supreme Court has said,

"[t]he essence of parole is release from prison, before

the completion of sentence, on the condition that the

prisoner abide by certain rules during the balance of

the sentence." Mornssey, 408 U.S. at 477, 92 S.Ct.

at 2598, 33 L.Ed.2d at 492 (1972). Our Legislature

has defined it as “a conditional release from

imprisonment, granted by the Maryland Parole

28a

Commission . . . [which] entitled the recipient . . . to

leave the institution in which he is imprisoned, and to

serve the remainder of his term outside the confines

thereof... ." Md. Code (1957, 1990 Repl. Vol.)

Art. 41, § 4-S01(5). See also Murray v. Swenson,

196 Md. 222, 229, 76 A.2d 150, 153 (1950). The

purpose of parole is to help individuals reenter society

and to alleviate the costs to society of keeping an

individual in prison. Morrissey, 408 U.S. at 477, 92

S.Ct. at 2598, 33 L.#d. 2d at 492. While the

executive branch, usually through a parole board, is

vested with the authority to grant parole and implement

its purpose, it is the legislature that establishes the

governing procedures and criteria. Arthur W.

Campbell, Law of Sentencing § 17:6, at 449 (2d ed.

1991). Thus, parole is a matter of legislative grace,

29a

not of constitutional right. Vitek v. Jones, 445 U.S.

480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552, 562

(1980); Greenholtz_v, Inmates of Neb, Penal and

Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100,

2104, 60 L.Ed.2d 668, 675 (1979); Dunn v, Cal,

Dept. of Corrections, 401 F.2d 340, 342 (9th Cir.

1968); Matthews v. State, 304 Md. 281, 292, 498

A.2d 655, 661 (1985); Hutchinson v, State, 292 Md.

367, 369, 438 A.2d 1335, 1336 (1982); Belch v,

Raymond, 196 Md. 649, 650, 75 A.2d 96, 97 (1950).

Although in Maryland, the parole Commission

ordinanly has exclusive discretionary power to

"[aJuthorize the parole of individuals sentenced under

the laws of this State to any penal or correctional

institution, jail, or other place of confinement or

detention within the State,” art. 41, § 4-504(a)(1), in

30a

the case of a prisoner at the Patuxent Institution, it is

the Board of Review that is given that discretion. Md.

Code (1957, 1990 Repl. Vol.), Art. 31B, § 6(c)(2).

This has been the policy since the creation of the

Institution.

Parole refers to the administrative action taken

after the prison door has closed on the defendant, State

v. Hewitt, 270 N.C. 348, 352, 154 S.E.2d 476, 479

(1967), while probation, which may be ordered as a

part of a split sentence, see Md. Code (1957, 1992

Repl. Vol.), Art. 27, § 641A(c); Matthews v. State,

304 Md. 281, 498 A.2d 655 (1985), ordinarily refers

to judicial action taken prior to its being closed.

Hewitt, 270 N.C. at 352, 154 S.E.2d at 479.

Notwithstanding that parole and probation differ in

terms of when they occur in the correctional process,

3la

each enables criminal offenders to serve at least part of

their sentences in the community rather than in prison

and requires the offenders to adhere to prescribed

conditions in order to retain their conditional freedom.

Neil P. Cohen and James J. Gobert, The Law of

Probation and Parole, § 1.01, at 4-5 (1983). Because

both the revocation of parole and the revocation of

probation pertain to punitive sanctions imposed on a

defendant for the commission of a criminal act,

Bergstein v. State, 322 Md. 506, 515, 588 A.2d 779,

783 (1991), for due process purposes, there is no

relevant difference. Gagnon v, Scarpelli, 411 U.S.

778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656,

661-62 (1973).

Since parole is a matter of grace and not of

right, the state may condition continuance of parole on

32a

the parolee’s compliance with certain prescribed

conditions. Morrissey, 408 U.S. at 478, 92 S.Ct. at

2598, 33 L.Ed.2d at 492. Such conditions may restrict

the parolee’s conduct and activities "substantially

beyond the ordinary restrictions imposed by law on an

individual citizen," id., so long as they are not illegal

or unrelated to rehabilitative purpose, or impossible to

perform. Arciniega v. Freeman, 404 U.S. 4, 4, 92

S.Ct. 22, 22, 30 L.Ed.2d 126, 127 (1971); Campbell,

§ 17.9, at 464. Generally, such conditions have been

held proper when they are not vague, indefinite or

uncertain, Smith v. State, 306 Md. 1, 7, 506 A.2d

1165, 1168 (1986), and until they are agreed to by the

offender, the grant of parole is ineffective. Hopkins v.

North, 151 Md. 553, 135 A. 367 (1926); Campbell,

supra, § 17.9, at 465. See also Lanzetta v, N.J., 306

33a

U.S. 451, 453, 59 S.Ct. 618, 619, 83.L.Ed. 888, 890

(1939) (criminal defendant entitled to be informed of

what the State commands and forbids); Costa y. State,

58 Md.App. 474, 483, 473 A.2d 942, 946-47 (1984)

(agent’s instructions to probationer to enter drug

therapy not within the general condition that

probationer follow agent’s instructions).

There are usually two types of conditions. The

first type forbids conduct which is also prohibited to

the ordinary citizen, e.g., commission of a criminal

offense. The other regulates conduct in areas not

affecting the ordinary citizen or in which the ordinary

citizen is entirely free to act. Examples of this type

of condition include requiring compliance with

institutional conditions, prohibiting associations, and

regulating the consumption of alcohol, interstate travel,

34a

possession of firearms, curfews, and the frequenting of

certain places. See Morrissey, 408 U.S. at 478, 92

S.Ct. at 2598-99, 33 L.Ed.2d at 492, Cohen and

Gobert, supra, § 4.04 at 165-66. See also Michael

Gottesman and Lewis J. Hecker, Note, Parole: A

Criti F its Lecal Foundati | Conditions, 38

N.Y.U.L. Rev. 702, 720-21 (1963). A violation of

either type may result in revocation of parole, but, in

the latter, there is more room for the exercise of

discretion. Id. at 721. While parole may be revoked

if the parolee fails to comply with one or more parole

conditions, Art. 41, § 4-511(a); Smith, 306 Md. at 7,

506 A.2d at 1168; Howlett v. State, 295 Md. 419,

425, 456 A.2d 375, 378 (1983); Dean v, State, 291

Md. 198, 202, 434 A.2d 552, 554 (1981), non-

compliance must occur when the offender is on parole.

35a

State v. Miller, 289 Md. 443, 446, 424 A.2d 1109,

1111 (1981); State v. Berry, 287 Md. 491, 499, 413

A.2d 557, 562 (1980); Cornish v. State, 65 Md.App.

213, 214, 500 A.2d 295, 295 (1985); Cohen and

Gobert, supra, § 9.05, at 4.23.

Miller and Berry, albeit dealing with probation,

are instructive. In Berry, the State alleged that the

defendant violated probation by failing to pay support

and maintenance for his wife and children. 287 Md.

at 499, 413 A.2d at 559. The alleged violation

occurred during the probation period, but the

revocation proceedings were not completed until

probation had expired. In Miller, the defendant, who

had-teen convicted of breaking and entering and

possession of narcotics paraphernalia, was placed on

soe _probation in lieu of a suspended sentence. After the

36a

probationary period had expired, he was charged with,

and convicted of, violating the terms and conditions of

his probation. The defendant argued on appeal that the

trial court lacked jurisdiction to revoke his probation

since the arrest warrant was issued, and the revocation

hearing was held, after probation expired. 289 Md. at

444, 424 A.2d at 1110.

We held in both cases that probation revocation

proceedings may be pursued and may be held after the

probationary period has expired, so long as the act

nstituting a violation

the probationary period. 289 Md. at 446, 424 A.2d at

1111; 287 Md. at 499, 413 A.2d at 562. Revocation

of probation, in other words, must be based on conduct

occurring subsequent to the grant of probation, but

prior to its expiration. See Dean, 291 Md. at 203, 434

37a

A.2d at 555, in which, reversing a judgment finding

the probationer in violation of probation, we

commented, "if the trial court had relied solely upon

independent, probative evidence showing that the

probationer had committed a crime subsequent to

probation, revocation of probation would have been

appropriate." (emphasis added). See also Cornish, 65

Md.App. 213, 500 A.2d 295 (1985) (probation

revocation reversed where State failed to prove new

conviction was based on conduct occurring during

period when the probationer was subject to the

condition violated). Compare Soden v. State, 71

Md.App. 1, 523 A.2d 1015 (1987) (Although no direct

evidence of dates of commission of offenses was

presented, evidence was sufficient to establish that the

defendant could only have committed crimes following

38a

his release from prison, thus during his probationary

period); Nelson v, State, 66 Md.App. 304, 503 A.2d

1357 (1986) (Subsequent convictions were for

violations of the law occurring while the appellant was

on probation).

Other jurisdictions are in accord. In Demchak

vy. State, 351 So.2d 1053 (Fla. Dist. Ct. App. 1977),

the defendant, on probation since April 28, 1975, was

convicted of offenses occurring on or about March 13,

1975 and continuing through May 5, 1975. Id. at

1054. The lower court’s judgment revoking probation

was reversed, the appellate court holding that while

probation may be revoked on the basis of a conviction

for a subsequent crime, the illegal activity giving rise

to the conviction must occur during the probationary

period; "[i]mproper conduct occurring prior to entry of

39a

the probation order cannot be the basis for revocation

even though the conviction resulting from such conduct

occurs while the defendant is on probation." Id.

(emphasis added). See also U.S. v. Drinkall, 749 F.2d

20 (8th Cir. 1984) (act occurring before conviction);

U.S. v. Paden, 558 F.Supp. 636 (D.C. Cir. 1983)

(conduct occurring after end of maximum period of

probation); Martinez v. Kirbens, 710 P.2d 1138 (Colo.

Ct.App. 1985) (conduct oceans after-end of

maximum probation period); Hinton v, State, 462

So.2d 583 (Fla. Dist. Ct. App. 1985) (violation

occurring prior to entry of probation order); Bell v.

State, 656 S.W.2d 502 (Tex. Ct. App. 1982) (cannot

revoke probation for violation occurring . before

judgment placing the defendant on probation); Bryce v.

‘Commonwealth, 414 S.E.2d 417 (Va. App. 1992)

40a

(Where conditioned one future good conduct,

revocation must be predicated on conduct occurring

subsequent to imposition of suspension).

An exception, recognized in this State, see

Matthews v. State, 304 Md. 281, 498 A.2d 655

(1985), permits rescission of parole or probation for

misconduct occurring after parole or probation has

been granted, but before it becomes effective. Cohen

& Gobert, § 4.04 at 165. In Matthews, the defendant

was sentenced to five years’ imprisonment with all but

nine months suspended and three years’ probation upon

his release from custody. Id. at 283, 498 A.2d at 656.

While still in custody, serving his sentence, but on

work release, he was arrested and subsequently

convicted of violations of the controlled dangerous

substance laws, receiving a sentence of imprisonment.

4la

Id. at 283-84, 498 A.2d at 656. The defendant was

then convicted of violating his probation and the

suspension of that portion of the sentence not served

was stricken. We rejected the defendant’s argument

that he could not lawfully be on probation while

serving a prison sentence, id. at 284, 498 A.2d at 656,

and thus could not have violated probation. We 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." Id. at 292, 498 A.2d at 660

(emphasis added, footnote omitted). See also U.S. v.

Veatch, 792 F.2d. 48 (3rd Cir.), cert. denied, 479

U.S. 933, 107 S.Ct. 497, 93 L.Ed.2d 359 (1986)

(revocation of probation for conviction of new offenses

42a

committed before commencement of probation term but

after sentence imposed); U.S, v. Wright, 744 F.2d

1127, 1130 (Sth Cir. 1984) (revocation of probation

before probationary term begins permitted if the

defendant commits an illegal act); U.S. v. Dove, 570

F.2d 840, 844 (9th Cir. 1977) ("Knowledge of the

criminal law is imputed on the [parolee] as is an

understanding that violation of the law will lead to the

revocation of [parole]"); Layson v. Montgomery, 251

Ga. 359, 306 S.E.2d 245 (1983) (revocation of

probation for conduct occurring after entry of order of

probation but before service of probation begins); State

v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982)

(revocation of probation for violation occurring before

commencement of probation term but after imposition

of sentence); Lee R. Russ, Annotation, Power of Court

43a

to Revoke Probation for Acts Committed After

I - FS But Pri C f

Probation Term, 22 A.L.R. 4th 755 (1983). Judge

McAuliffe, speaking for this Court, put it thusly:

If, at any time before the defendant has

completed the maximum _ period of

probation, or before he has begun service of

his probation, he should commit offenses of

such a nature as to demonstrate to the court

that he is unworthy of probation... the

court could revoke or change the order of

probation.

Matthews, 304 Md. at 291, 498 A.2d at 660 (quoting

Com, v. Dickens, 327 Pa. Super. 147, 475 A.2d 141

(1984)).

Parole also may be rescinded when it has been

obtained by means of fraud or lack of candor. Cohen

& Gobert, supra, § 9.05 at 423. In U.S. v. Kendis,

883 F.2d 209 (3rd Cir. 1989), an attorney, who,

pursuant to a plea agreement, pled guilty to bank

44a

fraud, was sentenced to five years imprisonment, with

all but six months suspended, in lieu of five years

probation. A requirement of the plea agreement was

that he pay restitution to the potential victims of the

fraud. Prior to the start of the probationary period, the

government moved to revoke the defendant’s

probation, maintaining that he used money entrusted to

him by other clients to make restitution. Id. at 210.

The court affirmed the revocation of probation even

though the conduct on which it was based occurred

prior to service of probation. It opined that revocation

was proper because the defendant "relied heavily on

his acts of restitution to persuade the district court to

give him a relatively light prison sentence . . . and .

_-. failed to reveal that restitution had been made with

clients’ money." Id. See also Bryce v. Como, 414

45a

S.E.2d at 418 (use of assumed name at trial constituted

fraud on the court).

Conduct which not only occurred before the

parole or probation decision was made but was known

to the granting authority may, but need not, support

rescission. Compare Fox v, U.S. Parole Comm’n,

517 F.Supp. 855 (D. Kan. 1981) with Ready v, U.S.

Parole Comm ’n, 483 F.Supp. 1273 (N.D. Pa. 1980).

Cohen and Gobert have analyzed the results and their

effect:

It is submitted that the result in Fox

makes better sense in light of the purposes

of parole. If the basic goal is to release

individuals who are rehabilitated and who

are likely to live a crime-free life in the

community following release, any

information bearing on that decision, no

matter when received should be considered.

Indeed, ignoring such information may do

the public a grave disservice since it could

result in the release of a dangerous

individual. To place on the parole board the

responsibility for a full investigation of all

46a

allegations, rumors, and the like may also

be overly burdensome. On the other hand,

the Fox court’s approach, unlike that of the

court in Ready, has the disadvantage of

potentially subjecting parole and probation

_ decisionmakers to community and political

pressures to rescind an already fixed release

date. It also encourages the board to be less

than thorough in preparing cases for

decision.

Cohen & Gobert, § 45, at 168.

The Circuit Court for Baltimore City issued an

order requiring the petitioner to parole the respondent

and to release him form custody unless it filed, within

a specified time an action for violation of parole and

subsequently proved the violation.'? The court

contemplated and, indeed, stated, that the Board would

12 As we stated, granting parole is purely an executive

function, Murray v. Swenson, 196 Md. 222, 229, 76 A.2d

150, 153 (1950), not a judicial one. Consequently, the

judiciary cannot grant parole, its function is limited to

granting probation. See Simms v, State, 65 Md.App. 685,

689, 501 A.2d 1338, 1341 (1986). In this case, the circuit

court did not parole the respondent, it ordered Patuxent

Institution’s Board of Review to do so.

47a

be “entitled to review [the respondent’s] conduct since

the [1987] parole recommendation to determine

whether he ‘has in fact breached the conditions of

parole." Although it did not order a new parole

eligibility determination, only parole and a revocation

hearing, the order in this case is reminiscent of the

trial court’s order in Gluckstern, the merits of which

we did not reach. See note 6, supra. That the court

ordered the petitioner to parole the respondent and then

conduct revocation proceedings was obvious to all

parties. Although we had never passed on such an

order, esiliiinadl. the petitioner believed it was

proper and, more important, that it could meet the

burden that the order imposed. Therefore, based on

that order, and without noting an appeal to challenge

its appropriateness, it served on the respondent an

48a

Order of Parole, which expired one year later,

including special and general terms and conditions of

parole, a Request for Parole Revocation Warrant,

charging the respondent with violation of parole, and

a notice of preliminary hearing. The parole violation,

it was alleged, occurred in 1989, the respondent’s last

year at the Patuxent Institution.

The petitioner does not argue, and the facts do

not indicate, that the respondent violated any condition

of parole after August 1990, when he was served with

the Order of Parole. Indeed, between April 1990 and

that date, he was not even at Patuxent. Moreover, the

petitioner does not assert, and the evidence does not

support, that the respondent broke any laws either

prior to, or after August 8, 1990. Nor is there a

contention that the respondent defrauded the court in

49a

order to obtain parole. The contention is, and the

evidence was offered to prove, rather, that the

respondent violated parole by failing to conform to a

rule of conduct imposed upon him by the Patuxent

Institution or authorized representatives, Le., to

cooperate with his therapist. That conduct occurred,

and was evident, prior to the respondent’s parole. The

respondent had not, at that time, been paroled or

apprised of the conditions that would pertain were he

paroled, however.

In Gluckstern, the trial court ordered, as the

appropriate relief for violation of the defendant’s

rights, a new parole hearing. Only if parole were

granted after that hearing did the court authorize

revocation of parole and, then, only "on the basis of

any actions or conduct. . . occurring after [the date he

50a

was recommended for parole].". 319 Md. at 647, 574

A.2d at 904. The trial court in this case did not order

a new parole hearing even though it probably could

have - much had changed since 1987 when the Board

recommended the respondent for parole and the Board

undoubtedly perceived the respondent as no longer

eligible for parole, a fact of which the court was made

aware. Instead, the court ordered the Board to parole

the respondent and revocation proceedings to forestall

the respondent’s actual release from custody were

authorized.

The Baltimore City Circuit Court’s order can

only be construed as _ authorizing § revocation

proceedings after parole had been ordered and to

permit those proceedings on the basis of conduct

occurring before parole was either recommended or

Sla

ordered and even though it is not proscribed by any

parole condition. A court may not, however, authorize

revocation of parole or probation on a ground not

otherwise permitted by law. See also Baldwin vy.

State, 324 Md. 676, 684, 598 A.2d 475, 479 (1991)

(decision to revoke probation may not be based on an

improper ground). Parole may be revoked for

violation of a condition of parole during the term of

parole, for commission of a crime, whether or not the

parole term has started, or for misconduct occurring

either before, or after, the grant of parole. When

violation of a condition of parole is alleged, the parolee

must be aware that the conduct constituting the

violation is prohibited by a condition of parole. None

52a

: 7

of the foregoing has occurred in this case.'?

II.

The fact that a parole system exists does not, in

and of itself, give rise to a constitutionally protected

liberty interest in parole release. Bd. of Pardons v.

Allen, 482 U.S. 369, 373, 107 S.Ct. 2415, 2418, 60

L.Ed.2d 668, 676 (1987). On the other hand, a

statute, administrative rules or regulations, or accepted

practices may provide such an interest. Cohen &

Gobert, supra, §§ 3.13-3.16, at 133-140. Whatever its

‘> The petitioner also maintains that, because the

Board’s decision to revoke the respondent’s eligible person

status was based on acts committed after the Board’s initial

recommendation to the Governor in 1988, its actions were

consistent with Matthews v, State, 304 Md. 281, 498 A.2d

655 (1985). Whether that is so, or not, is a matter that is

not before us. The respondent does not challenge that

action. It should be noted, however, that revocation of

eligible person status and revocation of parole, once

granted, may rest on entirely different considerations.

53a

source, in order that parole be given effect, there must

be "justifiable reliance on maintaining [a] conditional

freedom" instead of a "mere anticipation or hope of

freedom." Morrissey, 408 U.S. at 482 n. 8, 92 S.Ct.

at 2601 n. 8, 33 L.Ed.2d at 495 n. 8, quoting U.S, ex

rel. Bey v. Conn, Bd. of Parole, 443 F.2d 1079, 1086

(2nd Cir.), vacated as moot, 404 U.S. 879, 92 S.Ct.

196, 30 L.Ed.2d 159 (1971). This is so because there

is a critical and substantial difference between being

deprived of a liberty one has, as in parole, and being

denied a conditional liberty that one desires,

Greenholtz v. Inmates of Neb, Penal and Correctional

Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 2105, 60

L.Ed.2d 668, 676 (1979); "[T]here is a human

difference between losing what one has and not getting

what one wants." Id. at 10, 99 S.Ct. at 2105, 60

54a

L.Ed.2d at 677, quoting Bey, 443 F.2d at 1086.

(citations omitted). Procedural due process protections

extend to the parolee’s situation because "the liberty of

a parolee, although indeterminate, includes many of the

core values of unqualified liberty and its termination

inflicts a ‘grievous loss’ on the parolee and often on

others." Morrissey, 408 U.S. at 482, 92 S.Ct. at

2601, 33 L.Ed.2d at 494-95. See also Greenholtz, 442

U.S. at 10, 99 S.Ct. at 2105, 60 L.Ed.2d at 676.

In 1987, the former director of Patuxent

Institution recommended the respondent for parole; at

that time, the statute required the Governor to approve

the parole of all inmates serving life sentences at the

Institution. That we subsequently held gubernatorial

approval to be unconstitutional as applied to inmates

such as Hancock, whose crimes were committed prior

55a

to 1982, 319 Md. at 669, 576 A.2d at 915, thus

rendering the Governor’s approval unnecessary, did

not change the nature of the Board’s actions. A

recommendation of parole did not automatically

become an order of parole. Therefore, that action did

not give the respondent a liberty interest. In

Gluckstern, we did not hold that the excision of the

gubernatorial recommendation requirement entitled the

inmate to be released immediately.

The Board never paroled the respondent either

before or after the Governor’s rejection, nor did it

issue an order after the Gluckstern opinion. Thus, the

respondent could not justifiably have relied on the 1987

recommendation to maintain conditional freedom.

Indeed, the respondent never achieved conditional

freedom pursuant to that recommendation. In short,

56a

the recommendation merely furnished the respondent

with an anticipation or hope of freedom. Mormissey,

408 U.S. at 482 n. 8, 92 S.Ct. at 2601 n. 8, 33

L.Ed.2d at 495 n. 8.

The August 1990 circuit court order did not

parole the respondent. While it directed the petitioner

to do so absent the occurrence of a certain condition,

that order also did not provide the respondent with a

liberty interest in parole release."* On the other

hand, when, on August 8, 1990, it served the

respondent with an Order of Parole and a copy of a

'4 The court order by its terms, provided due process

protection for the respondent. Release was mandated

unless “appropriate and legally mandated procedures to

revoke parole” were commenced immediately. If such

proceedings were initiated, the order required a revocation

hearing be held to establish whether the respondent violated

parole. Of course, it required that the respondent be given

notice of the violations alleged.

57a

parole agreement, the petitioner effected the

respondent’s parole and, in the process, created in him

a liberty interest in parole release. It is the order of

parole, which, by its terms, was for one year, from

which the liberty interest flowed. The circuit court

order merely set the stage.

Notwithstanding its failure to object to the

circuit court order and to file an appeal challenging the

court’s authority to pass it, the petitioner asks us to

declare the order invalid and to excuse its own

omission. It focuses on the facts that the respondent

has never been released from custody and that, indeed,

the court only ordered his release in the event that the

petitioner did not proceed with revocation proceedings.

From these premises, the petitioner argues that the

respondent never acquired a liberty interest because a

58a

person who is actually on parole occupies a position

that "is very different from that of confinement in a

prison." Morrissey, 408 U.S. at 482, 92 S.Ct. at

2601, 33 L.Ed.2d at 495. It relies on Jago v. Van

Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13

(1981).

Jago is inapposite. There, a prisoner received

a favorable parole decision, which was communicated

to him along with a parole agreement stating that he

had “earned the opportunity of parole" and that the

Board "is therefore ordering a Parole Release in your

case." 454 U.S. at 15, 102 S.Ct. at 33, 70 L.Ed.2d at

16. Before that decision was made effective, the

parole board, having learned that he had not been

er‘irely truthful during his hearing, rescinded it. It did

so without first affording the prisoner a hearing. Id.

59a

The Court of Appeals for the Sixth Circuit held that

the "mutually explicit understanding” created between

the prisoner and his parole board by the latter’s

original affirmative recommendation, id. at 16, 102

S.Ct. at 34, 70 L.Ed.2d at 16, gave the prisoner a

liberty interest. The Supreme Court rejected the

appellate court’s analysis and opined, “mutually

explicit understanding" could engender property

interests, but not a liberty interest. Id. at 17, 102 U.S.

at 34, 70 L.Ed.2d at 17-18. It observed further that,

in property interest cases, there often is an implied

contract aspect of the understanding which is not

present in parole cases. Id. The Court concluded that,

since the prisoner did not have a statutorily protected

interest and a mutually explicit understanding could not

create one, he was not entitled to a hearing, the due

60a

process clause being inapplicable. Id. at 21, 102 S.Ct.

at 36, 70 L.Ed.2d at 19.

The facts sub judice, contrasted with those in

Jago, reveal that the respondent’s parole was so far

effectuated that he had been served with the Order of

Parole, apprising him of the terms and conditions with

which he was required to comply, which he signed,

both acknowledging the conditions and accepting them

and the parole. The respondent in Jago had not been

paroled, but merely recommended for parole. The

critical decision in the case before us was not favorably

to recommend parole; rather, it was to grant it. Such

a decision may not, without complying with due

process, be rescinded based on new information

discovered before physical release has actually

occurred. Moreover, in this case, unlike in Jago, a

6la

parole revocation hearing was mandated by the order

pursuant to which the prole order was issued and the

revocation proceedings were authorized and, of course,

the Order of Parole created a liberty interest.’ As

the Court of Special Appeals put it: the respondent

was accorded the rights of a parolee.

The petitioner is correct; the order of the Circuit

Court for Baltimore City is a final order which may

not be attacked collaterally. See Coles v, State, 290

Md. 296, 303, 429 A.2d, 1029, 1032 (1981). That

prohibition, however, also extends to the petitioner.

Having fully complied with the court order and paroled

'S The court order may well have been inartfully

drafted. Although it states that parole is conditioned on the

petitioner’s initiation of revocation proceedings, the context

makes clear that it is the respondent’s release from custody

that it is intended to address. Revocation proceedings may

necessitate detention of the parolee pending their

resolution; they do not require, nor negate, the parole

decision.

62a

the respondent, i.e., accorded him the rights that status

requires and that the court’s order mandated, the

petitioner may not now argue that it need not have

done so. The court order, after all, pertained to a

matter over which the court was competent to act. See

Stewart v. State, 287 Md. 524, 526 413 A.2d 1337,

1338 (1980); First Federated Commodity Trust Corp.

v. Comm’r of Securities, 272 Md. 329, 334, 322 A.2d

539, 543 (1974).

The petitioner next contends that the

respondent’s parole eligibility should have been

determined under the 1977 statute, see Maryland Code

(1957, 1976 Repl. Vol., 1980 Cum. Suppl.) Art. 31B,

63a

§ 11(b),"® the inapplicability of the 1982 statute

'© See infra note 5. Article 31B, § 11(b)(1)-(2)

provides:

(b)

1 7

. - At any time after

transfer of a person to the Institution for

treatment as an eligible person but prior to

the expiration of the person’s sentence, the

board of review, upon review of the person

may take the following action:

(1) If the board of review

concludes that the person is no longer an

eligible person but should remain confined

until released on parole in accordance with

normal Parole Commission standards or

expiration of his sentence or the inmate

requests a transfer in writing, the director

shall notify the Commissioner and send him

a copy of the evaluation team’s report.

Within 90 days after that notice, the person

shall be delivered to the appropriate

correctional facility designated by the

Commissioner. This transfer shall not affect

any mght to parole consideration that the

person may then have.

(2) If the board of review

concludes that (1) it will not impose an

unreasonable risk on society and (2) it will

assist in the treatment and rehabilitation of

the eligible person, it shall grant a parole

from the Institution for a period not

exceeding one year. The board of review

64a

having been established. It maintains that the

respondent was not eligible under the statute. As we

have seen, the trial court ordered the petitioner to

parole’’ the respondent. At no time, either before or

after that order, was the issue of the respondent’s

eligibility for parole under the pre-1982 statute raised

and, of course, the court did not address it. By

ordering the respondent’s parole, the court necessarily

assumed his present eligibility, whether under the pre-

1982 statute or the 1982 statute after the gubernatorial

may attach reasonable conditions to the

parole, at any time make reasonable and

appropriate modifications of these

conditions, and revoke the parole if it finds

that the person violated a condition of the

parole. The Board of review shall review

the person’s status prior to the expiration of

the parole period, and may extend the

parole.

17 In this context, parole must be read as meaning

"released from custody."

65a

consent requirement was excised. By complying with

the court order, the petitioner, at the very least,

acquiesced. Its acquiescence was underscored and

made manifest when it thereafter, as we noted earlier,

utterly failed timely to challenge that order on appeal.

The issue of the respondent’s parole eligibility,

therefore, is not now before this Court.

IIT.

Noting that "[i]t was utterly at vanance with

concepts of due process of law and basic fairness to

charge appellant with a violation of a condition of

parole when he was never on parole and had never

been apprised of what the conditions of his parole

would be," slip op. at 6, the Court of Special Appeals

held that the respondent’s parole was improperly

revoked: the “appellant was entitled to know the

66a

conditions of his parole in order that he be able to

protect his liberty interest in remaining free, once he

was actually released." Slip op. at 8.

As a matter of constitutional law, a parolee

reasonably may be expected to follow only such

conditions of parole of which he or she is made aware.

Cohen & Gobert, supra, § 5.04 at 193. As we have

seen, however, parole can be rescinded, as opposed to

revoked, when the parolee engages in conduct which

is not violative of a formal parole condition. The

parolee’s liberty cannot be forfeited as a result of that

conduct "unless he [or she] is given prior fair

warning." U.S. v. Dane, 570 F.2d 840, 844 (9th Cir.

1978).

The Order of Parole and the parole agreement

with which the respondent was served on August 8,

67a

ieee email

1990 required the respondent to "conform to all rules

of conduct imposed by Patuxent Institution or an

authorized representative." The Request For Parole

Revocation Warrant, with which the respondent was

also served, alleged that the respondent violated this

precise condition. Nothing in the record indicates that,

in 1987, when the Board recommended that he be

paroled, that the respondent was apprised of the

conditions with which he would have to comply or was

given a parole agreement listing them. So far as this

record reveals, the respondent was first notified of the

conditions of his parole at the same time that he was

informed that he violated one of them.

Because the conduct on the basis of which the

revocation was premised was not criminal - the

petitioner has conceded that the respondent has not

68a

violated any federal or state law or municipal

ordinance - and did not constitute an institutional

infraction, i,e., it was not the institutional equivalent of

criminal conduct, we hold that the respondent’s parole

was improperly revoked, he not having been notified,

in advance, of the condition allegedly violated. Both

common sense and due process demands this result.

See Swan v. State, 200 Md. 420, 425, 90 A.2d 690,

693 (1952) (whether a condition of probation has been

violated depends upon the terms of the suspension,

which were made known to the probationer, and by

which he was to be guided in this conduct). See also

Benboe v. State, 730 P.2d 356 (Alaska App. 1987).

In that case the court reversed a probation revocation

for failure of the defendant to participate in sex therapy

while imprisoned, where the order was not a condition

69a

lll

of probation and covered a period prior to the

commencement of probation because, the court opined,

the order "served no clear notice upon [the defendant]

that the probationary status of his sentence hinged on

his compliance with it." Id. at 360.

In the instant case, as in Benboe, the

respondent’s parole agreement did not contain any

condition that he attend therapy, nor was the

respondent made aware that his progress or, more

accurately, Dr. Farrell’s perception of his progress, in

therapy was an actual condition of parole which, if

violated, would result in loss of liberty.'*

'* In Smith v. State, 306 Md. 1, 7, 506 A.2d 1165,

1168 (1986), we made clear that the conditions may not be

vague, indefinite, or uncertain. There, the trial court

revoked the defendant’s probation for his alleged failure to

comply with the condition that he undergo drug screening.

We reversed. We stated, however, that a general condition

may be reasonable and effective if the probationer were

provided with directions defining the specific conduct

70a

Additionally, the violation of the requirement to

attend and participate in therapy is not a violation of a

criminal law, which all parolees and probationers are

aware is a ground for parolee/probation revocation.

See Dane, 570 F.2d at 844 (knowledge of the criminal

law is imputed to parole/probationer as an

understanding that violation of the law will lead to

required for compliance. Id. at 10, 506 A.2d at 1170.

Thus, "[a] general condition of probation is permissible

only ’so long as it is contemplated that the court or its

designee (usually the probation authority) will provide the

probationer with reasonable, specific direction within the

ambit of the initially expressed general condition, and such

guidance is in fact given.’ " Id. at 7, 506 A.2d at 1168

(citation omitted). See also Hudgins v, State, 292 Md.

342, 347, 348 A.2d 928, 930-31 (1982) (requirement that

the probation, as a "special condition", “cooperate with the

Maryland State police in tracking down criminals” was

acceptable provided the probationer received specific

directions as to what the condition entailed).

The Court of Special Appeals, alternatively,

characterized the conditions with which the respondent

allegedly failed to comply as vague, indefinite and

uncertain. Given the view we take of this case, we need

not and, therefore, do not reach that issue.

Tla

revocation of parole/probation).

To be sure, the requirement that the respondent

conform his conduct to the Board’s rules and

regulations is an appropriate condition of parole

because it bears a direct relationship to its purpose.

Where conduct failing to conform to that requirement

occurs after a favorable parole decision has been made,

but before it has been effectuated, it may very well be

appropriate to rescind the parole on the basis of that

conduct. See Cohen & Gobert, § 4.04 at 165-66. A

different rule necessarily applies after the decision has

been effectuated. In the former case, due process may

not require a hearing since the potential parolee will

only have an expectation of liberty. See Mormissey,

408 U.S. at 482 n.8, 92 S.Ct. at 2601 n.8, 33 L.E.2d

at 495 n.8. In the latter, a hearing will be required

72a

because the liberty interest would have been acquired

by virtue of the grant of parole. See Id. at 482, 92

S.Ct. at 2601, 33 L.E.2d at 495. |

IV.

Finally, the petitioner argues that it has no

authority to parole the respondent because, as of April

1990, he was neither an "eligible person" pursuant to

the Patuxent Institution statute nor an inmate at the

Institution. Furthermore, it points out, the

respondent’s parole expired on August 2, 1991, thus

mooting the issue.

It continues to be significant that the petitioner

did not appeal the circuit court order directing it to

parole the respondent. Its authority to parole one who

was not an “eligible person" pursuant to the Patuxent

Institution statute or even an inmate at the institution

73a

was certainly a proper issue for appellate review and,

indeed, may have been a complete defense to the

respondent’s challenge. Instead of appealing, however,

the petitioner proceeded as if it were authorized to

parole the respondent. Although he was not an inmate

at Patuxent at the time, it obtained his presence, served

the necessary parole papers on him and only then

proceeded with revocation proceedings. Subsequently

answering the respondent’s Petition for Reversal of

Administrative Agency Action, the petitioner admitted

that it paroled the respondent, it did not contend, then,

as it does now, that it was not authorized to do so.

The petitioner’s conduct, in short, was, and is,

inconsistent with one lacking authority. Only when

this matter reached this Court did the petitioner argue

that it lacked authority to have done what it did. The

74a

petitioner cannot now be heard to say that it could not

parole the respondent because he was not an "eligible

person” or that the issue is now moot. See Burroughs

vy. Garner, 43 Md. App. 302, 405 A.2d 301 (1979)

(Doctrine of equitable estoppel operates to prevent

party from asserting rights if it would be inequitable

and unconscionable to assert such rights).

The Court of Special Appeals ordered the

respondent’s release pursuant to the 1987 Review

Board parole recommendation. That was not, as we

have said, anything more than a recommendation of

parole. The August 8, 1990 Order of Parole,

however, effectuated the respondent’s parole and

contained the required notification of its terms and

conditions. Release should be in accordance with that

75a

Order.

More than two years have passed since the

respondent’s __ parole. We have __s previously

acknowledged that parole may be rescinded even

before its physical service has begun, if the parolee has

violated the law, see Matthews, 304 Md. at 291, 498

A.2d at 660, or its institutional equivalent, that is, for

misconduct which makes it apparent that the parolee is

presently unworthy of parole. Thus, before the

respondent is released, the Board is entitled to conduct

an investigation of the institutional records to

determine whether the respondent has engaged in such

misconduct. An allegation that the respondent has

engaged in such misconduct, because he has already

been paroled, must be tested by a prompt hearing. See

Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602, 33

76a

L.Ed.2d at 496.

T7a

No. 5

September Term, 1992

PATUXENT INSTITUTION BOARD OF REVIEW

Vv.

CLARENCE J. HANCOCK

Murphy, C.J.

Eldridge

Rodowsky

McAuliffe

Chasanow

Karwacki

Bell

Dissenting opinion by

McAuliffe, J. in which Murphy, C.J.

and Karwacki, J. join.

Filed: March 12, 1993

78a

McAuliffe, J., 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 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

79a

committing an assault with intent to murder on the

woman's | l-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

80a

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, 111 S.Ct. 369 (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 no

subject to gubernatorial approval and directing further

8la

proceedings 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. Hanceck’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

82a

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 — 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

83a

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 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 or 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

84a

| |

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 ....

85a

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 no

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

86a

™

of Judge Byrnes’ order, it would hove been clear that

intervening conduct by Hancock which disqualified him

from parole was to be considered, as well as conduct

that violated specific 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

87a

unreasonable risk on society .. . .". Maryland Code

(1957, 1990 Repl. Vol.) Art. 31B, § 11(6)(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 (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."

88a

——————E

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.

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,

89a

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 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

90a

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

9la

public safety." Moreover, he testified that an

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

_____ [slip op. at 39-40]. The Court also correctly

concludes that "[a]n allegation that the respondent has

engaged in such misconduct, because he has already

92a

been paroled, must be tested by a prompt hearing."

Id. at _ [slip op. at 40]. 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 _ [slip op. at 39-40]. 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 nsk on

society, will not only justify, but indeed compel, denial

of parole. The same situation would be presented if,

93a

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.

Moreover, I disagree with the Court that at ‘i

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 “a the

basis of equitable estoppel, which I do not find

94a

applicable. The Board was merely trying to follow the

hypothetical framework established by Judge Byrnes’

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’ caused him to

lose his status as an eligible person, he not only should

not be granted parole, he cannot be granted parole by

' 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.

95a

the Board. Article 31(b), § 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 give

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.

96a

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

NO. 1144

September Term, 1991

CLARENCE J. HANCOCK

PATUXENT INSTITUTION BOARD OF REVIEW

Bloom,

Wenner,

Harrell,

JJ.

Per Curiam

Filed: February 18, 1992

97a

In February 1976, appellant, Clarence Hancock,

was sentenced to a term of life imprisonment plus 35

years following his convictions for murder, attempted

murder, and assault and battery. In 1977 he was

accepted at Patuxent Institution as a defective

delinquent and subsequently retained as an “eligible

person,"' thus becoming eligible for parole, regardless

of the length of sentence, when and only when the

Patuxent Institutional Board of Review determined that

parole would benefit both society and appellant.

Appellant was approved for parole by the Board of

Review on 19 November 1987. Pursuant to Md. Ann.

Code Art. 31B, § 11(b)(2) (1986 Repl. Vol.), which

went into effect 1 July 1982, the Governor’s approval

' As defined in Md. Code Art. 31B, § 1(f)(1) (1983

Repl. Vol.). See also Md. Code Art. 31B, § 1(f)(1) (1990

Repl. Vol.).

98a

was necessary before parole becettie final. The

Review Board sent a letter to the Governor

recommending appellant for parole. The Governor

denied parole. On 7 June 1990, the Court of Appeals

held that the retroactive application of the gubernatorial

approval requirement to Patuxent inmates serving life

sentences for offenses committed before the effective

date of law, 1 July 1982, was a violation of the ex post

facto clauses of Article 1, § 10, clause 1, of the United

States Constitution, and Article XVII of the Maryland

Declaration of Rights. Gluckstern v, Sutton, 319 Md.

634, 664-72, cert. denied, US. __, 111 S.Ct.

369, 112 L. Ed. 2d 331 (1990).

On 24 July 1990, the Circuit Court for

Baltimore City issued a Memorandum and Order in a

habeas corpus proceeding brought by appellant.

99a

Applying the Gluckstern decision, the court accorded

appellant the rights and privileges of a parolee. The

court order also stated that:

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.

Consequently, the Patuxent Board of Review

is entitled to review petitioner’s conduct

since the parole recommendation to

determine whether he “has in fact breached

the conditions of parole." Morrissey _v.

Brewer, 408 U.S. 471, 483-484 (1972).

Furthermore, the court order stated that "[uJnless a

parole revocation retake warrant has been issued,

- parole to the community can be postponed beyond

August 10, 1990 only if petitioner has not submitted

reasonable home and employment plans." There was

no appeal from the decision of the Baltimore City

Circuit Court.

100a

Pursuant to the July 24 court order, the Patuxent

Board of Review issued an order of Parole on 8

August 1990. Appellant, however, was not released

on parole because, on the same day, 8 August 1990,

appellee served appellant with a retake warrant and

notice of intent to revoke parole. The notice alleged

that appellant violated General Condition No. 3 of his

order of parole. The notice did not specify what law,

ordinance, or rule appellant violated. Also on the

same day, 8 August 1990, a preliminary revocation

hearing was conducted. The hearing officer found that

probable cause existed to detain appellant for violation

2 General Condition No. 3 states:

The parolee shall not commit any act which

would be a violation of any Federal, State Law or

Municipal ordinance; and shall conform to all rules of

conduct imposed upon him by the Patuxent Institution or an

authorized representative.

10la

of General Condition No. 3 pending a formal

revocation hearing.

A formal revocation of parole hearing was

conducted at Patuxent on 6 September 1990. After

taking testimony and hearing argument the Board

revoked appellant’s parole. Specifically, the Board

found that appellant failed to participate actively in his

therapy, particularly when asked to discuss the

motivation for his crime.

Appellant appealed the Board’s decision to the

Circuit Court for Howard County, pursuant to the

Administrative Procedure Act, Md. State Gov’t Code

Ann., § 10-215 (1984). After submission of legal

memoranda and oral argument, the Circuit Court for

Howard County (Sybert, J.) affirmed the decision of

the Patuxent Institution Board of Review. In so

102a

finding the court stated:

In arriving at its decision, this Court has

also reviewed the transcript of the Board of

Review as well as the conditions of parole

and has decided that none of the basis set-

forth in Section 10-215(g)(3) for a reversal

or modification of the Board’s decision have

been found.

Appellant filed this timely appeal and argues that the

Board’s revocation of appellant’s parole was unlawful.

Precisely, appellant argues:

l. When there is no parole condition

requiring attendance in therapy, does

the revocation of appellant’s parole for

alleged failings in therapy violate

constitutional due process?

2. Can a therapist impose oral conditions

regarding therapy when there is no

written condition requiring appellant to

attend therapy?

3. It is unconstitutionally vague and over-

broad to apply a general parole

condition requiring obedience to all laws

and rules of conduct to alleged failings

in therapy?

103a

Is a revocation of parole, predicated on

alleged failings in therapy,

unconstitutional when there is no

evidence that such failings were willful?

Is there a lack of substantial and

material evidence in the record to

support the Board’s conclusion that

appellant did not obey his therapist’s

instructions?

We agree with appellant that revoking his

parole, based on conditions that appellant was not

made aware of until the moment his parole was

revoked, is a violation of appellant’s due process rights

under Article 23 of the Maryland Declaration of Rights

and the Fourteenth Amendment to the United States

Constitution.

The due process clauses of Article 24 of the

Maryland Declaration of Rights and the Fourteenth

Amendment to the United States Constitution are

104a

identical in meaning. —

Human Relations, 65 Md. App. 237, 243 cert. denied,

305 Md. 419 (1985). The Court of Appeals has held

that "Supreme Court interpretations of the federal

provision are authority for interpretation of Article

24." Id., quoting Department of Transportation v.

Armacost, 299 Md. 392, 415-16 (1984).

Appellant must first establish that he has been

deprived of a property interest in order for him to

establish a violation of procedural due process.

Jackson v, Metropolitan Edison Co,, 419 U.S. 345, 95

S.Ct. 449, 42 L.Ed.2d 477 (1974). Whether a

parolee’s liberty is defined in terms of a right or a

privilege, "[b]y whatever name, the liberty is valuable

and must be seen as within the protections of the

Fourteenth Amendment." Morrissey v. Brewer, 408

105a

U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484

(1972). (Emphasis added).

The Supreme Court has stated that it perceives

no relevant difference to the guarantee of due process

between the revocation of parole and the revocation of

probation. Gagnon v. Scarpelli, 411 U.S. 778, 93

S.Ct. 1756, 36 L.Ed.2d 656 (1973). Procedural due

process guarantees a parolee the nght to continue on

parole absent any violation of his parole conditions.

Herald _v. State, 52 Md. App. 295, 301 (1982).

Generally, in a revocation of parole (or probation)

case, a two-step analysis is applied by the reviewing

court. The Supreme Court enunciated the analysis in

Morrissey:

Implicit in the system’s concern with parole

violations is the notion that the parolee is

entitled to retain his liberty as long as he

substantially abides by the conditions of his

106a

parole. The first step in a revocation

decision thus involves a wholly retrospective

factual question: whether the parolee has in

fact acted in violation of one or more

conditions of his parolee. Only if it is

determined that the parolee did violate the

conditions does the second question arise:

should the parolee he recommitted to prison

or should other steps be taken to protect

society and improve chances of

rehabilitation?

408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 33

L.Ed.2d 484, 493 (1972).

The actions of the Review Board at Patuxent

prevent us from even considering the first step.

Appellant was never apprised of the conditions of his

"short-lived" parole. The Gluckstern decision

eliminated the gubernatorial approval requirement for

Patuxent inmates serving life sentences for offenses

committed before 1 July 1982. Appellant falls into this

class of Patuxent inmates. It was utterly at variance

107a

with concepts of due process of law and basic fairness

to charge appellant with a violation of a condition of

parole when he was never on parole and had never

been apprised of what the conditions of his parole

would be. Perhaps Patuxent’s proceedings would have

been more colorable if appellant had violated some

state or federal law. Such is not the case. At the

revocation hearing, Patuxent personnel testified that

appellant had not broken any law or violated any

institutional disciplinary rule. It is alleged that

appellant violated the last directive of General

Condition Number 3, by failing to “conform to all

rules of conduct imposed upon him by the Patuxent

Institution or an authorized representative." Even if

appellant had been aware of this condition the result

here would be the same. "To be enforceable a

108a

condition of probation [or parole] must not be vague,

indefinite or uncertain." Smith v. State, 306 Md. 1, 7

(1986). This alleged "condition" does not pass muster;

it is vague, uncertain, and indefinite. Moreover,

whether seibillia willfully violated it by failing to

participate in therapy to the satisfaction of the therapist

was a determination dependent entirely upon the

subject evaluation (or arbitrary whim) of the therapist.

The Board of Review erroneously relied on the

Baltimore City Circuit Court Order which stated that

"the Patuxent Board of Review is entitled to review

petitioner’s conduct since the parole senmeiniiciiien

to determine whether he has in fact breached the

conditions of parole." Morrissey v. Brewer, 408 U.S.

471, 483-484 [sic] (1972)." Patuxent points out that

this order was not appealed from and the propriety of

109a

the above-quoted statement is not before this Court.

What is before this Court is the decision of the Circuit

Court for Howard County affirming the decision of the

Patuxent Institution Board of Review’s revocation of

appellant’s parole. As to the decision affirmed by the

Circuit Court for Howard County and thus before us

on this appeal, the Board of Review violated

appellant’s right to due process of law by revoking his

parole based on what it claims to be a violation of a

condition of his parole of which he had never been

given notice. The Circuit Court for Baltimore City

could not authorize the Board of Review to do that;

and its ruling cannot be construed as authorizing the

Board of Review to deny appellant due process of law.

The most onerous interpretation of the ruling of the

Circuit Court for Baltimore City in the habeas corpus

110a

proceeding is that appellant’s parole could be revoked

before he was released if he had violated ome law or

engaged in conduct that any parolee may be presumed

to know would be a parole violation. Appellant had no

reason to appeal that ruling.

In summary, appellant was entitled to know the

conditions of his parole in order that he be able to

protect his liberty interest in remaining free, once he

was actually released. "“[W]hen notice is a person’s

due, process which is a mere gesture is not due

process." l Vv Vv

Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed.

865 (1950).

We reverse the decision of the Circuit Court for

Howard County, and remand the case to that county

for the passage of an appropriate order that will direct

lila

appellant’s immediate release from incarceration,

pursuant to the terms of the 19 November 1987

Review Board decision. Since appellant has been

confined contrary to law since the date of that decision,

our mandate will issue forthwith.

JUDGMENT REVERSED.

- COSTS TO BE PAID BY APPELLEE

MANDATE TO ISSUE FORTHWITH.

112a

CLARENCE J. HANCOCK

IN THE

Appellant CIRCUIT COURT

VS. FOR

PATUXENT INSTITUTION HOWARD

BOARD OF REVIEW COUNTY

Appellee Case No.

90-CA-14372

« cd * = * = ” a Saal -

Before this Court is an appeal from the

September 6, 1990 Patuxent Board of Review decision

to revoke Clarence Hancock’s parole from the Patuxent

Institution.

Mr. Hancock was given a preliminary parole

revocation hearing and later a formal revocation

hearing at which hearing he had the assistance of

Counsel.

This Court, after hearing oral argument by

Counsel, after reading Counsel’s memoranda, after

considering the Administrative Procedure Act of

Maryland and the scope of review of such an appeal

and the burdens upon both the Appellant as well as the

Appellee, is of the opinion that the decision of the

Patuxent Institution Board of Review should be

affirmed.

In arriving at its decision, this Court has also

reviewed the transcript of the Board of Review as well

as the conditions of parole and has decided that none

of the basis set-forth in Section 10-215(g)(3) for a 7

reversal or modification of the Board’s decision have

been found.

Therefore, it is, this 3rd day of July, 1991, by

the Circuit Court for Howard County, Maryland,

ll4a

ORDERED, that the decision of the Patuxent

Institution Board of Review’s revoking the parole of

the Appellant, Clarence J. Hancock, be and the same

is hereby affirmed.

/s/

Cornelius F. Sybert, Jr.

JUDGE

oe: Witold J. Walczak, Esquire

Emory A. Plitt, Jr., Esquire

Copies Mailed: JUL 03 1991

11Sa

PATUXENT INSTITUTION

INSTITUTIONAL BOARD OF REVIEW

DECISION

IN THE MATTER OF CLARENCE HANCOCK

#3310

Hearing Date: September 6, 1990

Attorney for Parolee: Witold Walczak, Legal Aid

Attorney for Institution:

Administrator

Board Members Present:

VIOLATION ALLEGED:

General Condition #3

1l6a

Charles L. Fuller,

Henneberry,

Steffens, Henley,

Sedgewick, Brown,

Richards, Kludt

(Marshall removed

self)

The parolee shall

not commit any act

which would be a

violation of any

Federal, State Law

or Municipal

ordinance; and

shall conform to all

rules of conduct

imposed upon him

by the Patuxent

Institution or an

authorized

representative.

DISCUSSION

This case comes before the Board due to a

successful court challenge made by the Parolee. The

Court held that the Parolee, who is serving a life

sentence, had been sentenced before the law was

changed. At the time of the Parolee’s admission to the

Patuxent program the Board of Review had the sole

authority to grant parole. The subsequent change in

the law requiring the governor’s approval was held to

be an ex post facto law as it applies to the parolee.

Therefore, the parolee should have been released on

parole. Since he was not actually placed on parole the

court held that he should be treated as if he had been

on parole, and his conduct since the time of the

approval of parole should be considered in any

revocation proceeding.

The Parolee’s former therapist Dr. John P.

Farrell testified that he has been working with the

Parolee for several years. During that time he has

reviewed various treatment plans with the parolee and

discussed his progress. The Parolee was approved for

Parole on November 19, 1987 by the Board of

Review, pending approval of the Governor. In July

1988 the recommendation was denied by the Governor.

On November 3, 1988 Mr. Hancock was

approved to continue on Work Release. On December

1, 1988 the entire work release program was

suspended. After the suspension of the Work Release

Program Mr. Hancock’s participation began to decline.

117a

In November 1989 it was noted that Mr.

Hancock failed to continue seriously addressing the

motivation of his crime, which is critical to his

successful rehabilitation. Mr. Hancock was cautioned

on an number of occasions regarding the importance of

his being open and earnestly seeking to address the

nature of his crime. Mr. Hancock failed to

satisfactorily participate in therapy. He became vague,

evasive and spoke in general terms during therapy.

Mr. Hancock’s participation in the therapeutic program

seriously declined to the point where he was brought

before the IBOR and subsequently found io be no

longer an Eligible Person.

In determining Mr. Hancock’s status as a non

Eligible Person, the IBOR found that, despite

numerous directives regarding his conduct, Mr.

Hancock continued to respond unfavorabl¥ to the

programs and services of the Patuxent Institution.

Dr. Farrell emphasized that, due to the nature

of Patuxent Institution being a therapeutic rehabilitative

facility, it is crucial that the inmates seriously look into

their inner self to assist in their rehabilitation. Failure

to do this impairs the inmates rehabilitation.

Treatment plans detailing specific areas of

concern were written for and reviewed by Mr.

Hancock. These plans also contained the rules of

conduct by which he was required to comply. Mr.

Hancock failed to continue his therapeutic progress as

delineated in his treatment plans.

Mr. Hancock maintains that he has not violated

any rule or regulation. He has never received a

118a

"ticket" for a disciplinary infraction. Furthermore, he

has availed himself of the educational programs

offered. In addition he has done as his therapist have

instructed.

As witnesses, Mr. Hancock produced his wife

Mrs. Elisa Hancock and his pastor Mr. Ralph Dennis.

Mrs. Hancock is a clinical social worker. Mr. Dennis

has counselled Mr. Hancock for the past two years.

Both witnesses testified that in the last two years

neither has noticed any change in Mr. Hancock. They

feel he has always been a stable and model person.

FINDINGS OF FACT

l. Mr. Clarence Hancock was initially

approved for parole on November 19,

1987.

2. In July 1988 the Governor denied the

recommendation for parole.

>. Mr. Hancock was continued on the

Work Release Program.

4. The Work Release Program was

suspended in December 1988.

- Thereafter, Mr. Hancock’s participation

in the therapeutic program seriously

declined to the point where he was

brought before the IBOR and

subsequently found to be no longer an

Eligible Person.

119a

6. By Order of Court, Mr. Hancock’s

parole agreement was reinstated on

August 2, 1990.

CONCLUSIONS OF LAW

Article 31B provides in pertinent part that:

Section 11 (6) Action by board of review

prior to expiration of sentence. -- After the

transfer of a person to the Institution for

treatment as an eligible person but prior to the

expiration of the person’s sentence, the board

of review, upon review of the person may take

the following action:

(2) If the board of review concludes that (i)

it will not impose an unreasonable risk on

society; and (ii) it will assist in the treatment

and rehabilitation of the eligible person, it may

grant a parole from the Institution for a period

not exceeding one year.

(6) The board of review may attach

reasonable conditions to the parole, at any time

make reasonable and appropriate modifications

of the conditions, and revoke the parolee if it

finds that the person has violated a condition of

the parole . . . [emphasis added]

After careful consideration of the testimony in

the matter, the board finds that Mr. Hancock has failed

to comply with the instructions and directives of his

therapist, he has thwarted the purpose and mission of

the Institution. He is, therefore, in violation of the

120a

terms and conditions of his parole.

ORDER

that Mr.

Clarence Hancock’s parole be revoked.

James Kludt, M.D. (for)

Henry Jay Richards, Ph.D

Executive Secretary

Distribution:

Parolee

Witold Walczak

Charles L. Fuller

Base File

l2la

STATE OF MARYLAND

PATUXENT INSTITUTION

ORDER OF PAROLE

The Institutional Board of Review, by virtue of

the authority conferred upon it by the laws of the State

of Maryland, does hereby grant Parole, for a period of

one year, to:

NAME: CLARENCE HANCOCK #3310

who was convicted of: 1) Murder, First

Degree; 2) Assault

with Intent to Murder;

3) Assault and Battery

and has a_ total

sentence of Life plus

thirty-five (35) years

dating from February

29, 1976

in the Prince George’s County Circuit Court on

December 9, 1976 and was committed to Patuxent

Institution as an Eligible Person on September 30,

1977

122a

As witness the

Signature of the

Director of Patuxent

Institution and the

Seal of Patuxent

Institution hereto

affixed; attested by an

administrative officer

of said Institution.

Original Parole Date

Parole Expiration Date

Attested:__/s/ /s/

Director, Patuxent

Institution

hed f

General Terms and Conditions of Parole appear on the

reverse side of this form. Special Conditions of

Parole: 1) Must reside in REF until otherwise directed

by Board of Review or Director of Institution. 2) Must

abstain from drinking alcoholic beverages and from

using illicit drugs and may be required to undergo tests

for these substances at any time. 3) Must abstain from

any contact with Ms. Theresa Knight and son Andrew

Knight. 4) Must attend weekly supervision as directed

by Unit V.

PAROLEE’S ACCEPTANCE OF PAROLE: I,

Clarence Hancock, have read, or have had read to me,

the terms and conditions of parole. I fully understand

them and hereby accept this parole and agree to

comply with all the terms and conditions of parole.

123a

Further, in consideration of the granting to me of this

parole I hereby waive extradition to the State of

Maryland and expressly agree that I will not contest

any effort to return me to the State of Maryland in

consequence of my violating any of the terms and

conditions set forth herein or for any other cause

resulting in issuance of a Warrant for my return. I

hereby acknowledge receipt of a copy of this ORDER

for Parole.

/s/ : /s/ 8/8/90

Witness Signature of Parolee Date

124a

Upon being paroled and released from the

confines of the Patuxent Institution, the parolee shall

remain in legal custody of the Institution during the

period of this parole. The expiration date appearing on

this form represents the end of the period of parole

granted, and does not represent the end of the period

of confinement and treatment. The Board of Review

has the authority to return the paroled inmate to the

Institution if the paroled inmate’s progress in the

community is considered to pose a risk to public safety

or pose a risk to the paroled inmate. Upon violation

of any of the terms and conditions of this parole, the

parolee will be returned to the Patuxent Institution

where a hearing will be conducted by the Institutional

Board of Review. If this parole is revoked, the inmate

will continue to serve his/her sentence within the

confines of the Institution.

TERMS AND CONDITIONS OF PAROLE

5 The parolee shall not. go outside the limits of

the State of Maryland without the written

permission of the Institutional Board of Review.

a The parolee shall promptly report to the

Patuxent Institution or wherever and whenever

an authorized representative may direct.

a The parolee shall not commit any act which

would be a violation of any Federal, State Law

or Municipal ordinance; and shall conform to

all rules of conduct imposed upon him by the

Patuxent Institution or an authorized

representative.

125a

The parolee shall make reasonable effort to

keep himself gainfully employed or otherwise

occupied, as directed by the Institutional Board

of Review.

The parolee shall not change his place of

residence or employment without first having

obtained the permission of the Patuxent

Institution or an authorized representative

thereof.

The parolee shall not own, possess, use, sell,

or have under his control any firearm or

weapon of any description, including any

device when resembles and is used as a

weapon.

The parolee shall not enter into any contract to

engage in business, shall not borrow money,

enter into any installment contract, incur any

debt nor acquire ownership of any motor

vehicle without first having obtained the

permission of the Institutional Board of Review.

The parolee shall not unlawfully possess, use,

buy, sell, or have under his control any

narcotic drug, "controlled dangerous

substance", or related paraphernalia.

A parolee, when seen, shall present proof that

the parolee is maintaining steady employment,

attending substance abuse meetings if

appropriate, and living at a specified address.

This information will be verified and

documented.

126a

10.

11.

12.

14.

15.

16.

A parolee shall give a random urine specimen

as required by the parolee’s supervisor.

A parolee shall discuss the problems or the

progress that the parolee is having in the

community and the types of relationships that

the parolee may be establishing.

A parolee may be subject to a search for

contraband during the parolee’s visit by the

parole supervisor.

Periodic job checks and home checks shall be

made by the parole supervisor.

A parolee functioning on Interstate Compact or

paroled to meet a detainer shall be monitored at

least yearly by a designated employee of the

Institution.

A parolee shall be employed or enrolled in

school, and have a legitimate means of financial

support. If unemployed or unemployable, the

parolee shall have a legitimate means of

financial support while on parole.

When paroled, an inmate shall receive all

current funds in the inmate’s active and reserve

accounts, which have been maintained at

Patuxent Institution. If paroled from work

release, the inmate shall receive 100 percent of

their work release account upon being paroled,

less the deductions specified in COMAR

12.12.07.09B.

127a

17.

18.

A parolee shall be counseled concerning the

benefits of establishing savings accounts at

financial institutions in the community.

A parolee who needs financial assistance shall

be referred to appropriate community agencies

and assisted in the application processes of the

community agencies by a parole supervisor.

128a

CLARENCE HANCOCK ~* IN THE

Petitioner * CIRCUIT COURT

v. * FOR

JOSEPH HENNEBERRY ~* BALTIMORE CITY

Respondent * Case No.:

90030905/H3825

* ad

a ee

MEMORANDUM AND ORDER

Having read and considered Petitioner’s Motion

in the above-captioned case, and having heard oral

argument on the 18th of July, 1990, it is on this 24th

day of July, 1990 ORDERED as follows:

1. The Order staying the granting of relief in

the above-captioned Habeas Corpus action be, and

hereby is, rescinded on the basis that the Maryland

Court of Appeals has affirmed the judgment in the

Circuit Court for Baltimore County in Gluckstern v.

129a

Sutton, No. 107, September Term 1988, (June 7,

1990), denied the State’s request for a stay of the

mandate on June 29, 1990, and issued the mandate on

July 9, 1990. Furthermore, the Supreme Court of the

United States denied petitioner’s request for a stay on

July 9, 1990.

2. The Patuxent Board of Review approved the

petitioner for parole but that recommendation has

denied by the Governor. The Court of Appeals in

Gluckstern v, Sutton, held that retroactive application

of the gubernatorial approval requirement of Md. Ann.

Code, Art. 31B, §11(b)(2) (1986 Repl. Vol., 1988

cumm. supp.) to a Patuxent lifer whose offense(s) were

committed before 1982 violated the ex post facto

clauses of the United States and Maryland

Constitutions. Petitioner must, therefore, be treated as

130a

a parolee, with all of the rights and privileges

appertinent thereto. Morrissey v. Brewer, 408 U:S.

471 (1972). Petitioner must be paroled unless he

"... has in fact acted in violation of one or more

conditions of his parole [agreement]." Id. at 479.

3. 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.

Consequently, the Patuxent Board of Review is entitled

to review petitioner’s conduct since the parole

recommendation to determine whether he "has in fact

breached the conditions of parole." Morrissey, 408

U.S. at 483-484.

4. Since petitioner has not been on parole

physically, the Court recognizes that he may not have

l3la

satisfied many of the ordinary terms and conditions of

a parole order, e.g. maintaining a job, reporting to a

parole officer at specified times. However, these

failing are not of his own volition. Therefore, in

deciding whether revocation is warranted, the Board of

Review should focus on behavior over which petitioner

has exercised control. For example, if petitioner has

committed a new offense or if he has violated a major

disciplinary rule of the Institution, such transgressions

would constitute the "verified facts", Morrissey, 408

U.S. at 484, upon which parole revocation might be

considered.

5. Accordingly, the respondent be, and hereby

is, directed to parole petitioner on or before August

10, 1990, unless respondent within that time period

commences appropriate and legally mandated

132a

procedures to revoke petitioner’s parole, with a copy

of the Request for Issuance of Retake Warrant form

setting forth particularized grounds for the alleged

violation to be served on petitioner, his counsel and

this Court on or before August 10, 1990.

6. Unless a parole revocation retake warrant

has been issued, parole to the community can be

postponed beyond August 10, 1990 only if petitioner

has not submitted reasonable home and employment

plans. In the interim, the respondent is directed to

take appropriate steps to assist petitioner with both. In

the event that a living situation and job have not been

secured by the 10th day of August, 1990, respondent

is to parole petitioner to the half-way house in

Baltimore, under appropriate Supervision, wherein

efforts to finalize both living and employment

133a

situations will continue.

7. Finally, this Court makes clear that this

Order does not insulate petitioner from possible future

parole violations. Should petitioner from here on in

".. . commit acts that would constitute a violation of

parole conditions," Morrissey, 408 U.S. at 485,

Patuxent’s authority to institute revocation proceedings

and to protect the public safety is in no way abridged

by this Order.

/s/

John Carroll Byrnes

Circuit Court Judge

134a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.