Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
This application for leave to appeal from the denial of an application for relief under the Uniform Post Conviction Procedure Act (Code (1960 Supp.), Art. 27, §§ 645A-645J, the "PCPA") presents several questions. The applicant, Lloyd R. Roberts, is now held at the Patuxent Institution pending trial and determination of whether or not he is a defective delinquent within the meaning of the Defective Delinquent Laws (Code (1957), Art. 31B, as amended.) He was tried and convicted in the Circuit Court for Frederick County on July 18, 1958, on a charge of assault and battery committed on June 29, 1958, and was sentenced to three years' imprisonment in the House of Correction, accounting from June 30th, the date of his arrest. Roberts had been convicted of stealing an automobile from the victim of his 1958 assault about a year earlier and had been sentenced to a year's imprisonment. The assault occurred very shortly after his release and, as we said in affirming the 1958 conviction from which he appealed, the "attack was clearly an act of revenge." Roberts v. State,
219 Md. 485, 487, 150 A.2d 448. Because of several prior offenses, -- assault and larceny, including the theft of the automobile above mentioned, -- Judge Schnauffer at the time of imposing sentence directed that Roberts be sent to Patuxent for examination, evidently with the thought that he might receive mental treatment which would help him to overcome his unfortunate tendencies. (219 Md. at 491-492.) We rejected Roberts' contention that the court's comments indicated that the court thought him incapable of standing trial for the offense charged without the aid of counsel.
While Roberts' appeal was pending in this Court (our opinion was filed on April 15, 1959), Roberts was examined at Patuxent and on November 18, 1958 a report of the Institution was forwarded to the State's Attorney for Frederick County and on December 10, 1958 it was filed with the Circuit Court for that County. (Code (1957), Art. 31B, § 7).
That report states in part:
"He [Roberts] is in need of psychiatric treatment and rehabilitation in order to make a future adjustment in society. He can be classified as a defective delinquent under the terms of the law, because he has exhibited extreme emotional unbalance as well as a propensity toward aggravated criminal behavior. His commitment to the Patuxent Institution is therefore recommended."
The hearing on this report required by § 8 of Art. 31B was greatly delayed. The court seems to have assumed that the State's Attorney's office was taking care of the matter. So far as we can tell from the record before us nothing was done by the State's Attorney's office towards bringing the matter to actual trial until October, 1960; and even then action was initiated only after prodding by the Patuxent Institution. There are in the record copies of letters dated April 21 and August 15, 1960, from the Director of Patuxent requesting action, to which no replies appear to have been received. The first of these letters was addressed to Mr. Barrick, who had been State's Attorney in November and December, 1958. His term expired at the end of the latter
month. He was succeeded by a Mr. Nikirk, who resigned in less than a year, and he, in turn, was succeeded by the present State's Attorney, to whom the letter of August 15 was addressed. That letter called attention to the then tentative date of expiration of Roberts' sentence, which was September 27th. Finally, on September 21st, the Director wrote to Judge Schnauffer calling attention to the expiration date, referring to an opinion of Judge McLaughlin (apparently in the Caple case hereinafter referred to), and urging that some proper disposition be made of Roberts' case. This letter apparently got results, and on October 11, 1960, the State's Attorney notified Roberts that his case would be heard on October 20th.
In March, 1960, Roberts had taken the initiative himself to the extent of asking that he be examined, pursuant to § 7 (b) of Art. 31B, by a psychiatrist of his own choice. Under § 7 (b) the State pays the reasonable cost of such examination. The psychiatrist whom he selected was not licensed to practice in Maryland, and he was therefore advised that though he could be examined by this psychiatrist, he, and not the State, would have to pay for his services. This sign of activity did nothing, so far as appears, to bring the case to a hearing.
On October 11, 1960, the State's Attorney for Frederick County sent Roberts a letter stating that his defective delinquency hearing was scheduled for October 20, 1960 and that the court would appoint counsel for him and that he had the right to select a psychiatrist of his own choice, provided the psychiatrist had qualified to practice in Maryland, and that the State would pay the psychiatrist's fee. Roberts, on October 16, 1960, notified the State's Attorney that he desired Miss Elsbeth Levy, of Baltimore, to represent him at the defective delinquency proceeding.
However, on October 7, 1960 Roberts, without informing the authorities in Frederick County, had filed a petition in the Circuit Court for Washington County for a writ of habeas corpus. When this action became known in Frederick County the defective delinquency hearing there ...