Cunningham v. State

WILNER, J. Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van on a public street in Baltimore City. For that illicit conduct, he was 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 (Criminal Law Article, § 8-611(b) and (d)), (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the name and address of the transferor of the sounds or images (Criminal Law Article § 7—308(d)(2)), and (3) acting as a peddler without a license (Business Regulation Article, § 17-911). It appears from comments made by his attorney at sentencing that this was appellant’s business. Indeed, his arrest in this case occurred only hours after he had been placed on probation for similar offenses.

The court sentenced appellant to eighteen months in prison, with all but thirty days suspended in favor of eighteen months probation. As an additional penalty, the court required that appellant pay restitution in the amount of $955. That is the nub of this appeal. Although no objection was made to the restitution order and notwithstanding that appellant immediately, at the sentencing hearing, paid the restitution, he 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.” We shall affirm the restitution order.

This case, to some extent, is a companion case with Chaney v. State, 397 Md. 460 , 918 A.2d 506 , 2007 WL 754635 (2007), in ⁵²⁶ which we discussed the very limited circumstances under which an order of restitution could constitute an “illegal sentence” correctable by an appellate court without regard to the appellant’s failure to object to the sentence in the trial court. We held there that, to fit within that category, the illegality must inhere “in the sentence itself; i.e., there either has been no conviction 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 substantively unlawful.” Id. at 466, 918 A.2d at 466 . Any other deficiency in the sentence that may be grounds for an appellate court to vacate it, we added, “must ordinarily be raised in or decided by the trial court.” Id. Subject only to the appellate court’s discretion under Maryland Rule 8-131(a), which we expressly decline to exercise in this case, “the defendant is not excused from having to raise a timely objection in the trial court.” Id.

The restitution order challenged here most definitely does not fit within the ambit of an “illegal sentence” in that regard. The police recovered 195 counterfeit CDs and 66 counterfeit DVDs from appellant’s van. Restitution is certainly a permissible penalty for possessing for distribution or delivery counterfeit CDs and DVDs, and appellant does not contend otherwise. See Maryland Code, § 11-603 of the Criminal Procedure Article.

The alleged deficiencies go only to the amount and to whether the recipients were