# Appendix — Patuxent Institution Board of Review v. Hancock

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 905

## 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
By

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.

la

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.

2a

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

3a

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

4a

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.

Sa

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:

6a

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

Ta

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.

8a

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

9a

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4
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¢
:

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

' .
é
5
‘
|

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

}
;

a

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

ee

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

Bi

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

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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

ee

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

ee

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.

A.

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.
A.

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.

B.

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).
c.
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,

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7
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

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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).
V.

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

iB

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
v.

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

|
o
pe

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

a

"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

l
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.

bs

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0961%3A2. Public record. Not legal advice.