In Re James B.

Alpert, J., delivered the opinion of the Court. On May 13,1982, James B. was brought before the Circuit Court for Baltimore City, sitting as a juvenile court for a waiver hearing 1 on charges stemming from the destruction of a bus window and the stealing of a quantity of liquor from a local establishment. Pursuant to negotiations in the nature of a plea agreement, in return for the State withdrawing its petition for waiver to the Criminal Court, James B. admitted that he had committed the offenses of breaking with intent to steal and malicious destruction of property, and agreed to immediate disposition. The trial judge thereupon found him to be delinquent, committed him to the care and custody of the Juvenile Services Administration, and ordered him to make restitution in the amount of $331.00.

Defense counsel objected to the imposition of restitution and requested a separate restitution hearing for the purpose of requiring evidence of the amount of the loss. On June 4, 1982, the "restitution hearing” was held, and at the ²⁷² conclusion thereof the court increased the amount of restitution to $451.55 and held both the appellant and his mother jointly and severally liable for that amount. An appeal from that order of restitution was timely filed and appellants argue that: 1. James B. is entitled to enforcement of the condition of his plea agreement that no restitution order be made; 2.

The trial court erred in ordering restitution; and 3. The trial court erred in entering an order requiring James B’s mother to pay restitution. I. Restitution as to James B. A. The Negotiated Agreement In order to determine if appellant "is entitled to enforcement of the conditions of his plea agreement that no restitution order be made” the precise terms of that agreement must be determined. At the outset the Public Defender outlined the general terms of the agreement: Pursuant to negotiations with the State, James is now admitting to count one in both petitions.

In the petition ending in 103, he is admitting to count one which is breaking into the premises of the Port City Pub with the intent feloniously to steal property valued over $300.00 and in the petition ending in 805 he is admitting to count one which is malicious destruction. That is a broken bus window, a mass transit bus. It is my understanding that the State will withdraw their waiver request and we will then waive notice and have disposition today. Next in an apparent effort to comply with Maryland Rule 907b, 2 James B. was questioned at length by his attorney so ²⁷³ that the Court could determine whether he understood the nature and possible consequences of admitting to the allegations of the delinquency petitions.

Although "restitution” was not mentioned at that point as a possible consequence of the admission, the prosecution did imply that the state would not seek restitution. In reciting the statement of facts offered as a factual basis for the admitted allegations of the petition, the assistant state’s attorney stated in pertinent part: The respondent, James B., was taken into custody on December 10th of 1981, advised of his rights, and in fact gave a statement to the police indicating that he was in fact involved in this offense and gave a statement in detail about the offense. The incident did occur in Baltimore City. The property was not recovered.

There is no claim for restitution. (emphasis added). The following colloquy between the trial judge, prosecutor and defense counsel provided further reason for the juvenile to believe that restitution might not be required: THE COURT: How about the liquor that was stolen? What happened to that $331.00?

MR. LAWLOR: The liquor was not recovered, Your Honor. That amount of liquor was not recovered, and they are not seeking restitution in that matter. THE COURT: They are not seeking it.

MR. LAWLOR: They are not. ²⁷⁴ THE COURT: What does that mean? Why would someone not seek restitution? MR.

LAWLOR: Port City Pub has this problem all of the time. I think their feeling is — I have talked to them a number of times about problems over there — and they tell me that they don’t want to come down to court because it takes too much time. Although the State did not seek restitution after finding James B. delinquent, the trial judge, at the disposition stage of the proceedings, sua sponte determined to include restitution as part of his overall disposition of the case. To determine the nature and extent of the agreement, we must consider not only that which was stated initially by the Public Defender, but also the relevant statements that followed.

In so doing, we conclude that: 1. The agreement contemplated that the appellant would admit to certain allegations in the delinquency petition. 2. The State in return would abandon a waiver to the criminal court. 3. The State would recommend referral to the Juvenile Services Administration including commitment to "the training school where Mr. Leeds would take him into .. . the Community Supervision Program.” (emphasis supplied). 4.

Since no claim had been filed by the victim for restitution, the State was not seeking restitution. Appellant construes this as an agreement by the State that no restitution would be ordered, and contends that the trial court accepted that agreement when it found him delinquent; that the court then became bound by the agreement as though it were a party to it. The appellant does not contend that the State breached the agreement, but rather that he is entitled to have the agreement enforced, even against the court. ²⁷⁵ It is axiomatic that the trial court was not ipso facto bound by any agreement reached between the parties regarding restitution, assuming there was, in fact, such an agreement. The State’s comment that no claim for restitution had been filed and that no claim was being made, even when coupled wdth the finding of delinquency, does not translate into an acquiescence by the court that restitution may not be ordered.

Indeed, the court immediately made clear that restitution would be part of its disposition. Although neither Md. Cts. & Jud. Proc. Code Ann. §3-819 nor Chapter 900 of the Maryland Rules includes provisions for plea agreement in juvenile proceedings, Maryland Rule 733 provides a useful analogue since the admission here was the functional equivalent in Juvenile Court of a guilty plea.

See, In Re: Appeal No. 544, 25 Md. App. 26, 42-43 , 332 A.2d 680, 689-90 (1975), wherein we stated: But even if there is no authorization for a plea of guilty in a delinquency proceeding, if admissions by the juvenile by answer or in open court have, in fact, the effect of a guilty plea, we believe the affirmative acceptance by the court should be required under the constitutional guidelines applicable to a plea of guilty in a criminal case. In other words, such admissions may be effectively accepted and considered by the court only under the standard applicable to waiver of constitutional rights as explicated by us in Williams v. State, 10 Md. App. 570 . A fortiori, when the plea agreement precipitates the admissions which are to be accepted and considered by the Juvenile Court, standards for its implementation, although certainly not binding, could be helpful. Maryland Rule 733 countenances plea bargaining in accordance with the American Bar Association Standards of Criminal Justice, "Pleas of Guilty,” Standards 3.1-3.3.

Maryland Rule 733c is particularly instructive. While authorizing the submission of a plea agreement to the trial ²⁷⁶ judge for acceptance or rejection, it specifically provides, inter alia, that "[t]he agreement of the State’s Attorney relating to a particular sentence, disposition or other judicial action is not binding on the court unless the judge to whom the agreement is presented accepts it.” If the trial judge rejects the plea, agreement, he must inform the parties of this fact and advise the defendant that the court is not bound by the plea agreement; that the defendant may withdraw his plea; and "that if the defendant persists in his plea of guilty ... the sentence or other disposition may be less favorable to him than the plea agreement.” See also, American Bar Association Standards for Criminal Justice "Responsibilities of the Judge”, Standard 14-3.3(b)(iii), (g)(1), (2) and the "Commentary” thereon at p. 14.80. The Juvenile Justice counterpart of Standard 14-3.3b is found in the American Bar Association Juvenile Justice Standards (Standards Relating to Adjudication) "Responsibilities of the juvenile court judge with respect to plea agreements” Standard 3.3. Comparable to Maryland Rule 733, that Standard provides in pertinent part that: Disclosure of the plea agreement should be on the record in the presence of the respondent.

The court should then indicate whether it will concur in the proposed agreement. If the court concurs, but later decides not to grant the concessions contemplated by the