Filed March 15, 2007--Opinion by Judge Alan M. Wilner (retired, specially assigned).
Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van and was subsequently convicted in the Circuit Court for Baltimore City of (1) possession with intent to distribute goods of a value less than $1,000 that Appellant knew bore or were identified with a counterfeit mark, (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the same name and address of the transferor of the sounds or images, and (3) acting as a peddlar without a license. The court sentenced Appellant to 18 months in prison, with all but 30 days suspended in favor of 18 months probation. As an additional penalty, the court required that Appellant pay restitution in the amount of $955.
Although no objection was made to the restitution order and notwithstanding Appellant immediately, at the sentencing hearing, paid the restitution, Appellant now complains that the order constitutes an illegal sentence because (1) the recipient was neither a victim nor a proper restitution payee, and (2) no evidence was introduced regarding the amount of restitution.
Referring to Chaney v. State, to fit within the category of an illegal sentence, the illegality must inhere in the sentence itself, i.e., there either has been no convinction warranting any sentence or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantially unlawful. This Court held that the Order challenged here did not fit within the ambit of an "illegal sentence" in that regard, and the alleged deficiencies went only to the amount and to whether the recipients were persons entitled to restitution. Any other deficiency in the sentence that may be grounds for an appellate court to vacate it must ordinarily be raised in or decided by the trial court. Subject only to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court. Here, not only did the Appellant not object to the restitution, but brought money orders totalling $955 to the sentencing hearing, made them payable to persons not identified in the record, and delivered them to the prosecutor.
Held: When a criminal defendant fails to raise a timely objection in the trial court to a valid restitution order, that defendant waives any complaint about the amount or the recipient of the restitution.
The full opinion is available in PDF.
Showing posts with label restitution. Show all posts
Showing posts with label restitution. Show all posts
Friday, March 16, 2007
Thursday, March 15, 2007
Chaney v. State (Ct. of Appeals)
Filed March 14, 2007. Opinion by Judge Alan M. Wilner (retired, specially asigned).
From the headnote of the opinion:
Following conviction of second degree assault, Chaney was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditions of probation were that Chaney pay restitution to the victim in the amont of $5,000 within 30 months after his release from prison and that he be employed full-time or a full-time student. At the sentencing hearing, Chaney was presented with, and signed, the probation order and separate judgment of restitution. Chaney timely appealed the conditions to probation.
After the appeal request, Chaney filed a motion for modification and reduction of sentence, complaining that there had been no request by the victim for restitution, and no evidentiary basis for the $5,000 judgment. Chaney's motion was denied, and no appeal was taken from that ruling. The Court of Appeals granted certiorari prior to consideration by the Court of Special Appeals, to consider whether the two conditions constituted an "illegal sentence" that may be corrected notwithstanding Chaney's failure to object to them in a timely manner in the trial court below.
The court noted that a defendant may file a motion to correct an illegal sentence even if 1) no objection was made when the sentence was imposed, 2) the defendant consented to it, or 3) the sentence was not timely challenged in direct appeal, but that the scope of the privilege is narrow, where the illegality inheres in the sentence itself. That is, either there has been no conviction warranting the sentence or the sentence is not a permitted one for the conviction upon which it was imposed, and therefore is intrinsically and subtantively unlawful.
The court found nothing intrinsically illegal about either condition here, even though Chaney argued that the conditions were inappropriate here because no evidentiary foundation was laid to support them. At best, this would require the court to vacate if the compaint was preserved for appellate review, or the court chooses to exercise its discretion under Rule 8-131(a) to consider issues not raised in or decided by the trial court. Here, Chaney had failed to appeal from the trial court's denial of his motion, but the court nonetheless decided to exercise its discretion and consider the restitution issue, because it was found to constitute plain error and transcended this case, potentially affecting hundreds of other cases, but not the employment condition, which could await the time Chaney is charged with violating that condition.
Restitution is provided for in Section 11-603 of the Criminal Proceedings Article, if as a direct result of the crime, the victim suffered specified items of damage set forth in subsection (a), and in subsection (b) the victim is presumed to have a right of restitution if the victim or the State requests restitution, and the court is presented with competent evidence of any specified item of damages. The court noted the facial ambiguity of the statute, calling it "at best, inartfully drawn," and was unwilling to read the first part without the conditions set forth in the second part, since restitution is part of a criminal sanction.
Consequently, the court held that as a matter of due process and Maryland criminal procedure, restitution may only be awarded if 1) the defendant is given reasonable notice that restitution is being sought and the amount, 2) the defendant is given a fair opportunity to defend against that request, and 3) there is sufficient admissible evidence to support the request, as to both the amount and relationship to the crime. The court noted that the statues and rules provide for the involvement of the victim in the process and provide a due process framework for consideration of these requirements. Here, in spite of the presence of the victim and compliance with those statutes and rules, no demand was made for restitution, and no evidence was submitted, so the $5,000 restitution figure "was pulled entirely out of thin air." Thus the court vacated the order of restitution.
The opinion is available in PDF format.
From the headnote of the opinion:
Before a restitution order is granted, Section 11-603 of the Criminal Procedure Article requires that the victim of the crime or the State request restitution and that competent evidence supporting the amount of the restitution order be presented to the trial court. In this case, because the record demonstrates that no request for restitution was made and no competent evidence was presented to support the amount of restitution, the restitution order must be vacated.
Following conviction of second degree assault, Chaney was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditions of probation were that Chaney pay restitution to the victim in the amont of $5,000 within 30 months after his release from prison and that he be employed full-time or a full-time student. At the sentencing hearing, Chaney was presented with, and signed, the probation order and separate judgment of restitution. Chaney timely appealed the conditions to probation.
After the appeal request, Chaney filed a motion for modification and reduction of sentence, complaining that there had been no request by the victim for restitution, and no evidentiary basis for the $5,000 judgment. Chaney's motion was denied, and no appeal was taken from that ruling. The Court of Appeals granted certiorari prior to consideration by the Court of Special Appeals, to consider whether the two conditions constituted an "illegal sentence" that may be corrected notwithstanding Chaney's failure to object to them in a timely manner in the trial court below.
The court noted that a defendant may file a motion to correct an illegal sentence even if 1) no objection was made when the sentence was imposed, 2) the defendant consented to it, or 3) the sentence was not timely challenged in direct appeal, but that the scope of the privilege is narrow, where the illegality inheres in the sentence itself. That is, either there has been no conviction warranting the sentence or the sentence is not a permitted one for the conviction upon which it was imposed, and therefore is intrinsically and subtantively unlawful.
The court found nothing intrinsically illegal about either condition here, even though Chaney argued that the conditions were inappropriate here because no evidentiary foundation was laid to support them. At best, this would require the court to vacate if the compaint was preserved for appellate review, or the court chooses to exercise its discretion under Rule 8-131(a) to consider issues not raised in or decided by the trial court. Here, Chaney had failed to appeal from the trial court's denial of his motion, but the court nonetheless decided to exercise its discretion and consider the restitution issue, because it was found to constitute plain error and transcended this case, potentially affecting hundreds of other cases, but not the employment condition, which could await the time Chaney is charged with violating that condition.
Restitution is provided for in Section 11-603 of the Criminal Proceedings Article, if as a direct result of the crime, the victim suffered specified items of damage set forth in subsection (a), and in subsection (b) the victim is presumed to have a right of restitution if the victim or the State requests restitution, and the court is presented with competent evidence of any specified item of damages. The court noted the facial ambiguity of the statute, calling it "at best, inartfully drawn," and was unwilling to read the first part without the conditions set forth in the second part, since restitution is part of a criminal sanction.
Consequently, the court held that as a matter of due process and Maryland criminal procedure, restitution may only be awarded if 1) the defendant is given reasonable notice that restitution is being sought and the amount, 2) the defendant is given a fair opportunity to defend against that request, and 3) there is sufficient admissible evidence to support the request, as to both the amount and relationship to the crime. The court noted that the statues and rules provide for the involvement of the victim in the process and provide a due process framework for consideration of these requirements. Here, in spite of the presence of the victim and compliance with those statutes and rules, no demand was made for restitution, and no evidence was submitted, so the $5,000 restitution figure "was pulled entirely out of thin air." Thus the court vacated the order of restitution.
The opinion is available in PDF format.
Wednesday, March 14, 2007
Robey v. State (Ct. of Appeals)
Filed March 14, 2007 -- Opinion by Judge Glenn Harrell
Robey was convicted of second-degree assault and reckless endangerment and sentenced to three years imprisonment, all of which was suspended, and ordered restitution in an amount to be determined by the Maryland Division of Parole and Probation. The Division arrived at the figure of $42,260.75. During a separate restitution hearing, the Circuit Court required Robey to pay $42,342.74 in restitution. Robey unsuccessfully appealed his conviction and sentence to the Court of Special Appeals, and subsequently challenged the amount of his restitution order in the Circuit Court with a Motion to Correct Illegal Sentence on the theory that Md. Code (2001), Crim. Proc. Article, §11-604(b) prohibits a restitution order in an amount exceeding $10,000. The Circuit Court denied Robey’s motion and Robey appealed to the Court of Special Appeals. Before that court could hear the case, the Court of Appeals granted a writ of certiorari, on its own motion, to consider Robey’s contention that the $10,000 statutory limit on restitution orders applies to adult defendants as well as child defendants and respondents and their parents.
The Court of Appeals held that the plain language of Crim. Proc., §11-604(b) precluded Robey’s interpretation because the thrust of the relevant subsection and the surrounding subsections deals exclusively with child defendants or respondents and their parents. Examining legislative intent, the Court noted that the predecessor statute from which §11-604(b) was derived also focused exclusively on restitution as applied to child defendants or respondents and their parents, and a subsequent revision further verified that the General Assembly did not intend to include adult defendants within the purview of the limit on restitution orders.
The Court further noted that its interpretation of the statute was consistent with the rehabilitative purpose of restitution as directed towards children in the juvenile justice system and that the limit prevented young offenders from being saddled with an insurmountable debt, which would frustrate the goals of rehabilitation.
The opinion is available in PDF.
Robey was convicted of second-degree assault and reckless endangerment and sentenced to three years imprisonment, all of which was suspended, and ordered restitution in an amount to be determined by the Maryland Division of Parole and Probation. The Division arrived at the figure of $42,260.75. During a separate restitution hearing, the Circuit Court required Robey to pay $42,342.74 in restitution. Robey unsuccessfully appealed his conviction and sentence to the Court of Special Appeals, and subsequently challenged the amount of his restitution order in the Circuit Court with a Motion to Correct Illegal Sentence on the theory that Md. Code (2001), Crim. Proc. Article, §11-604(b) prohibits a restitution order in an amount exceeding $10,000. The Circuit Court denied Robey’s motion and Robey appealed to the Court of Special Appeals. Before that court could hear the case, the Court of Appeals granted a writ of certiorari, on its own motion, to consider Robey’s contention that the $10,000 statutory limit on restitution orders applies to adult defendants as well as child defendants and respondents and their parents.
The Court of Appeals held that the plain language of Crim. Proc., §11-604(b) precluded Robey’s interpretation because the thrust of the relevant subsection and the surrounding subsections deals exclusively with child defendants or respondents and their parents. Examining legislative intent, the Court noted that the predecessor statute from which §11-604(b) was derived also focused exclusively on restitution as applied to child defendants or respondents and their parents, and a subsequent revision further verified that the General Assembly did not intend to include adult defendants within the purview of the limit on restitution orders.
The Court further noted that its interpretation of the statute was consistent with the rehabilitative purpose of restitution as directed towards children in the juvenile justice system and that the limit prevented young offenders from being saddled with an insurmountable debt, which would frustrate the goals of rehabilitation.
The opinion is available in PDF.
Friday, February 2, 2007
State v. Garnett (Ct. of Special Appeals)
Filed February 2, 2007. Opinion by Chief Judge Joseph F. Murphy, Jr.
From the official headnote of the case:
On consideration, the court concluded that the law of the case doctrine did not preclude raising the illegal sentence issue, since the Court of Appeals in Garnett I had noted the issue had not been before it. Further, the court rejected the State's claim that recent legislative changes to the Victim's Rights Act had effectively overruled the holding in Pouncey v. State, 297 Md. 264 (1983), finding that no sentence of restitution should have been imposed on Garnett, concluding that the illegal sentence of restitution was appropriately corrected, and affirming the judgment.
This opinion is available in PDF format.
From the official headnote of the case:
CRIMINAL PROCEDURE; LAW OF THE CASE DOCTRINE; MOTION TO CORRECTThe procedural history of the case was set forth in the previous trip to the Court of Appeals (in Garnett I) and was not repeated in this opinion, other than to note that in Garnett I, the order of restitution entered against Garnett was a penal sanction to which she was subject, despite a finding of guilty but not criminally responsible. As such, it was not subject to discharge in bankruptcy, and the State's motion to allow garnishment should have been allowed. On remand, Garnett sought to dismiss the garnishment motion, claiming the restitution order was illegal because she was found guilty but not criminally responsible and could not be held to account for the crimes for which she was convicted. The circuit court granted Garnett's motion to dismiss, and this appeal followed.
ILLEGAL SENTENCE: Although Md. Rule 4-345(a) does not entitle a defendant to relitigate an “illegal sentence” issue actually decided by the Court of Appeals or the Court of Special Appeals, that rule would be meaningless if the law of the case doctrine were extended to sentences that could have been -- but were not -- challenged as illegal at the time an appellant filed his or her first appellate brief. The law of the case doctrine therefore prohibits a defendant from attempting to once again present an “illegal sentence” argument that has been presented to and rejected by an appellate court.
On consideration, the court concluded that the law of the case doctrine did not preclude raising the illegal sentence issue, since the Court of Appeals in Garnett I had noted the issue had not been before it. Further, the court rejected the State's claim that recent legislative changes to the Victim's Rights Act had effectively overruled the holding in Pouncey v. State, 297 Md. 264 (1983), finding that no sentence of restitution should have been imposed on Garnett, concluding that the illegal sentence of restitution was appropriately corrected, and affirming the judgment.
This opinion is available in PDF format.
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