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:
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.

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