Cunningham v. State (Ct. of Appeals)

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.