Wood v. Director of Patuxent Institution

243 Md. 731 (1966) 223 A.2d 175

WOOD
v.
DIRECTOR OF PATUXENT INSTITUTION

[App. No. 86, September Term, 1965.]

Court of Appeals of Maryland.

Decided October 12, 1966.

Before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

PER CURIAM:

This is an application for leave to appeal from an order of the Circuit Court for Frederick County dated January 28, 1965, finding that the applicant is a defective delinquent and committing him to Patuxent Institution. Morris Wood previously had been convicted in the Circuit Court for Frederick County of assault and battery, and on September 24, 1962, he was sentenced to the Maryland Institute for Men for not more than three years. Subsequently, on January 28, 1965, Judge Patrick M. Schnauffer, sitting without a jury, found him to be a defective delinquent.

The applicant raises the following contentions:

1. That there was an unconstitutional delay of nearly twenty-eight months from the time of applicant's commitment to Patuxent Institution to the time of his adjudication as a defective delinquent. The delay has postponed the running of the two years which must lapse before applicant can seek a redetermination.

2. That Art. 31B violates the due process and equal protection clauses of the Fourteenth Amendment.

3. That Art. 31B violates the double jeopardy provisions of the federal Constitution.

4. That Art. 31B is an ex post facto law, in violation of Art. I, § 10, of the Constitution of the United States.

5. That Art. 31B violates the self-incrimination provision of the Fifth Amendment of the United States Constitution.

6. That in violation of the due process clause of the Fourteenth Amendment applicant was denied the right to have an attorney present at the time of his mental examination at Patuxent Institution.

7. That sentence for an indeterminate period of time is a denial of equal protection to the applicant.

8. That the finding of defective delinquency was against the weight of the evidence.

With regard to the applicant's first contention, we pointed out in McCloskey v. Director, 230 Md. 635 (1963), that since defective delinquency proceedings are civil in nature, the constitutional rights to a speedy trial are not applicable. Applicant's contentions two, three, four, five and seven have all been disposed of in Director v. Daniels, 243 Md. 16 (1966). The sixth contention also fails because the civil nature of defective delinquency proceedings makes the "right to counsel" inapplicable during examination. Blann v. Director, 235 Md. 661 (1964). With regard to applicant's eighth contention, this Court has repeatedly held that questions of the weight of the evidence are not available on application for leave to appeal if, in a non-jury case, the finding of the lower court was not clearly erroneous. Alt v. Director, 240 Md. 262 (1965); Blakney v. Director, 239 Md. 704 (1965); Colbert v. Director, 234 Md. 639 (1964).

Application denied.