Ingram v. State

Harrell, J. Ask, and it will be given to you.... Matthew 7:7 (King James). and MD. CODE, CRIM. PROC. § 11-603(b)(1). vs. Even if you don't ask, "sometimes you get what you need." THE ROLLING STONES , You Can't Always Get What You Want , LET IT BLEED album (Decca Records 1969). and MD.

CODE, CRIM. LAW § 7-104(g)(1)(i)(2). We are called upon here to construe (based on purely secular legal principles) assertedly opposing statutory provisions of the Maryland Code regarding court-ordered restitution in theft cases. Petitioner, Philip Ingram Jr. ("Ingram"), urges us to find that orders of restitution in all criminal cases, including a prosecution for theft under Criminal Law Article, § 7-104 (" § 7-104"), are governed exclusively by the procedural requirements of Title 11 of the Criminal Procedure Article ("Title 11").

Ingram seeks to overturn a restitution order, stemming from his theft conviction, requiring him to pay his victim the value of the goods he stole, i.e., $18,964.55. Ingram points out specifically that Title 11 contains a provision ( § 11-603(b)(1) ) that obliges the victim or State to request restitution in order to trigger a presumed right to receive restitution, a prerequisite not satisfied in his case. The State retorts that, in theft cases, § 7-104(g)(1)(i)(2) of the Criminal Law Article provides independent authority (indeed, a mandate) for a court to order restitution as part of a sentence for a theft conviction, regardless of a request for that relief. For reasons to be explained, we hold that the restitution requirement in § 7-104(g)(1)(i)(2) authorizes a court in a theft case to award restitution, regardless of whether the State or the victim requests that relief.

Thus, we affirm the judgment of the Court of Special Appeals. I. FACTUAL AND PROCEDURAL BACKGROUND Ingram was employed by BJ's Wholesale Club ("BJ's") from 1 October 2015 until 17 November 2015 in its Baltimore County store. On multiple instances during his relatively brief tenure at BJ's, Ingram was observed (on store surveillance video) stealing new automobile tires. When confronted ultimately by BJ's Loss Prevention Department, Ingram admitted to the theft.

His employment was terminated. He was also arrested by local law enforcement. In all, Ingram stole approximately 120 tires, having a total value of $18,964.55, as attested by a BJ's representative, Derek Schreck ("Schreck"), its Regional Asset Protection Manager. Ingram was charged initially in the District Court of Maryland, sitting in Baltimore County, with two counts, theft and theft scheme of property having a value of at least $10,000, but less than $100,000.

He declined to provide information to either the police or BJ's regarding the party or parties to whom he transferred the tires. In the Circuit Court for Baltimore County, Ingram entered a guilty plea to an amended count of theft of property valued of at least $1,000, but less than $10,000. The State agreed to nol pros the theft scheme count. It agreed additionally to "submit on the Defendant's record and victim impact" statement, in exchange for the guilty plea.

In an on-the-record exchange, defense counsel demonstrated Ingram's understanding of the charge to which he was pleading guilty. Counsel informed Ingram that the charge "carries a maximum penalty of up to 10 years" and that the judge was free to "impose up to 10 years of incarceration." Neither defense counsel, the State, nor the court advised Ingram at that time that his sentence could (or could not) contain also an order to pay restitution. The court accepted Ingram's plea and found him guilty. During sentencing, defense counsel noted that Ingram suffered from drug addiction.

In view of this, his counsel requested the court to impose a partially-suspended sentence and allow Ingram to participate in a drug treatment program during his incarceration. The State abstained from making a specific sentencing recommendation. Rather, the State submitted Ingram's criminal record, which included misdemeanor theft convictions from 2012 and 2015. Schreck testified during sentencing as the victim's representative.

He stated that BJ's missed by $21,331 its budgeted profit plan, for that part of the store's department that included tire sales, and attributed the shortfall to Ingram's theft. Schreck expressed sympathy for Ingram, stating that "I just hope that he learns a lesson and, you know, gets himself treatment." Schreck did not request restitution for the $18,964.55 described earlier as the value of the tires or the asserted "lost profit" number. The court sentenced Ingram to 10 years of incarceration, with all but 18 months suspended in favor of three years of probation. The judge ordered also Ingram to pay to BJ's $18,964.55 in restitution.

Defense counsel remonstrated that there had been no request for restitution. The court explained: I know this is a large company, but when things like this happen companies go out of business, then all of those other people who work there who need those jobs to pay for their mortgage, to pay for their rent, to pay for the food for their kids don't have those jobs. So it's not a victimless crime because it's a company. I expect restitution in the amount of $18,964.55.

Ingram moved for modification of his sentence, renewing his objection to the order of restitution on the ground that neither the State nor the victim requested restitution. The court denied this motion. Ingram filed an application for leave to appeal from his guilty plea. He argued that the circuit court erred in ordering restitution because neither the State nor the victim requested such relief.

He maintained additionally that the guilty plea was not entered knowingly and voluntarily because he relied assertedly on the prosecutors' alleged oral representation during plea negotiations that restitution would not be sought. The Court of Special Appeals granted Ingram's application for leave to appeal. On appeal, Ingram argued that the circuit court was not permitted to order him to pay restitution without a request from the victim or the State, as provided under Title 11, § 11-603(b)(1) of the Criminal Procedure Article of the Maryland Code. The State countered that restitution was proper because restitution was not ordered under Title 11 of the Criminal Procedure Article, but rather under § 7-104(g)(1)(i)(2) of the Criminal Law Article, which mandates restitution in theft cases.

In affirming the order of restitution, the Court of Special Appeals concluded, in a per curiam opinion, that the sentencing judge was obliged to order restitution pursuant to § 7-104(g)(1)(i)(2) of the Maryland Criminal Law Article. We granted Ingram's petition for writ of certiorari. Ingram advanced for our consideration a bifurcated inquiry, 1 which we reconstruct as three catechisms for analysis: 1. Does § 7-104(g)(1)(i)(2) of the Criminal Law Article provide authority, independent of § 11-603 of the Criminal Procedure Article, for a court to order restitution in a theft case? 2.

Is a court's authority to order restitution governed pre-eminently by the restitution provision in the Criminal Procedure Article? 3. Where a defendant is convicted of theft, may a court order the defendant to pay restitution when neither the victim nor the State request it? With regard to the first two questions, we hold that Criminal Law Article § 7-104(g)(1)(i)(2) provides independent authority for a court to order restitution in a theft case as a specific "theft exception" to the general restitution provision, § 11-603(b)(1), found in the Criminal Procedure Article. A court's authority to order restitution is governed ordinarily by the general restitution provisions in Title 11 of the Criminal Procedure Article, subject however to the theft exception noted above.

As to question three, because § 7-104(g)(1)(i)(2) provides independent authority for a court to order restitution in a theft case, a court may order a defendant convicted of theft to pay restitution as authorized by the penalty provision of that section, regardless of whether the State or the victim requested specifically that relief.

II

STANDARD OF REVIEW We review a trial court's restitution order ordinarily for abuse of discretion. Silver v. State , 420 Md. 415 , 427, 23 A.3d 867 , 874 (2011). When determining the propriety of a restitution order requires the Court to engage in statutory interpretation, however, the review is conducted without deference to the trial court's action. Harrison-Solomon v. State , 442 Md. 254 , 265, 112 A.3d 408 , 415 (2015).

III

RELEVANT STATUTORY PROVISIONS As noted earlier, Ingram plead guilty to theft of property having a value of at least $1,000, but less than $10,000, in violation of Criminal Law Article § 7-104. That section reads, in relevant part: (a) Unauthorized control over property. -- A person may not willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. ... (g) Penalty. -- (1) A person convicted of theft of property or services with a value of: (i) at least $ 1,[000] but less than $ [10,000] 2 is guilty of a felony and: 1. is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 10,000 or both; and 2. shall restore the property taken to the owner or pay the owner the value of the property or services .... MD.

CODE, CRIM. LAW § 7-104 (emphasis added). Ingram argues that § 7-104(g)(1)(i)(2) cannot be read harmoniously with the general restitution provision in Title 11, § 11-603(b)(1). Section 11-603 of that Title states, in relevant part: (a) Conditions for judgment of restitution. -- A court may enter a judgment of restitution ... in addition to any other penalty for the commission of a crime or delinquent act, if: (1) as a direct result of the crime or delinquent act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value substantially decreased; (2) as a direct result of the crime or delinquent act, the victim suffered: ...

(ii) direct out-of-pocket loss (b) Right of victims to restitution. -- A victim is presumed to have a right to restitution under subsection (a) of this section if: (1) the victim or the State requests restitution ; and (2) the court is presented with competent evidence of any item listed in subsection (a) of this section. MD. CODE, CRIM. PROC. § 11-603 (emphasis added).

In addition, § 11-619 of the Crim. Proc. Article states: (a) Operation of subtitle in general. -- Subject to subsection (b) of this section, any order of restitution made by a court shall be governed by the provisions of this subtitle. (b) Subtitle not construed to limit authority of court. -- This subtitle may not be construed to limit the authority of a court to direct a defendant ... to make restitution or to perform certain services, as specified by the court, for the victim as an alternative means of restitution.

MD. CODE, CRIM. PROC. § 11-619 (2018).

III

STATUTORY INTERPRETATION Our inquiry in the matter of this statutory interpretation begins with recalling that: The cardinal rule of statutory construction is to ascertain and effectuate the General Assembly's intent. "[O]ur primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules." The starting point of any statutory analysis is the plain language of the statute, viewed in the "context of the statutory scheme to which it belongs." We presume, moreover, that the General Assembly "intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute's object and scope." We do that "by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory." It is also settled that when a statute's language is "clear and unambiguous, we need not look beyond the statute's provisions and our analysis ends." Yet, it is equally "well settled that the purpose of the plain meaning rule is to ascertain and carry out the real legislative intent." We have emphasized that "[w]hat we are engaged in is the divination of legislative purpose or goal.... the plain-meaning rule is not a complete, all-sufficient rule for ascertaining a legislative intention. The meaning of the plainest language is controlled by the context in which it appears." To that end, "we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments." Kranz v. State , 459 Md. 456 , 474-75, 187 A.3d 66 , 76-77 (2018) (internal citations omitted). A. Plain Meaning.

The first encounter in the statutory interpretation gauntlet is the "plain meaning rule." If statutory language is clear and unambiguous, the examining court is not obliged to look ordinarily beyond the statutes in question. Opert v. Criminal Injuries Comp. Bd. , 403 Md. 587 , 593, 943 A.2d 1229 , 1232 (2008). The meaning of the plainest language is controlled, however, by the context in which it appears.

Kaczorowski v. Baltimore , 309 Md. 505 , 514, 525 A.2d 628 , 632 (1987). The language of § 11-603(b)(1), read in isolation, is not ambiguous, nor is the language of § 7-104(g)(1)(i)(2) when considered similarly. Title 11 supplies a general statutory scheme which governs seemingly any order of restitution in criminal and juvenile cases. Section 7-104 contains, however, a specific restitution provision mandating seemingly restitution for any theft crime.

When read in conjunction, there seems to be, at first blush, conflict between the two statutory schemes. Title 11, according to § 11-619, applies to "any order of restitution made by a court," but it "may not be construed to limit the authority of a court to direct a defendant ... to make restitution." To determine whether there can be a harmonious reading of § 11-603(b)(1) and § 7-104(g)(1)(i)(2), we embark on this quest to divine the intent of the Legislature in maintaining those provisions "on the books." B. Divining Legislative Intent. As noted earlier, our goal in statutory construction analysis is to discern and carry out the intent of the Legislature. Blue v. Prince George's Cty. , 434 Md. 681 , 689, 76 A.3d 1129 , 1133 (2013).

Legislation, for the most part, has an objective, goal, or purpose. It seeks to remedy some evil, advance some interest, or attain some end. Kaczorowski v. Baltimore , 309 Md. 505 , 513, 525 A.2d 628 , 632 (1987). Identifying the particular purpose, goal, or objective may be found in a variety of places: the language of the statute or statutes in question; their bills' titles, preambles, or amendments; their bills' relationship to earlier and subsequent legislation; legislative history; and "other material that fairly bears on the fundamental issue of legislative purpose." Id. at 515 , 525 A.2d at 632 .

Ingram argues that the Legislature "clearly and unmistakably evinced an intent that all orders of restitution be governed by CP Title 11." The Legislature's intent, as diagnosed by Ingram, is clear because § 11-619(a) states: "[s]ubject to subsection (b) of this section, any order of restitution made by a court shall be governed by the provisions of this Subtitle." Section 11-619, in subsection (b), continues, however: "[t]his Subtitle may not be construed to limit the authority of a court to direct a defendant or a child found to have committed a delinquent act to make restitution or to perform certain services as specified by the court, for the victim as an alternative means of restitution." Ingram directs next the spotlight on former Senator John Giannetti, one of the co-sponsors of Senate Bill 428 in the 2003 Regular Session of the Legislature, when he stated then that provisions were being added to Title 11, Subtitle 6, to clarify generally that restitution falls under that title. Senator Giannetti continued that his bill was intended to clarify that Subtitle 11 may not limit the authority of a court to direct a defendant or child to make restitution by performing certain services. 3 Ingram concludes from this that, because the Legislature included alternative means of restitution in the bill, it could have recognized explicitly an exception for theft cases if it intended there to be such an exception. Ingram turns a jaundiced eye on the "legislative history" of § 7-104, which he regards as murky, at best. The restitution provision in that section is traceable to 1809.

Accordingly, there is scant evidence of what the Legislature intended when it enacted that law originally because no records regarding the enactment exist from that time. The only reasonable inference, according to Ingram, is that the Legislature intended thereby merely to authorize restitution, in the discretion of a court, when a defendant commits theft, rather than to compel it. Ingram relies also on Chaney v. State , 397 Md. 460 , 918 A.2d 506 (2007). Chaney involved an altercation culminating in conviction of the defendant for second-degree assault, with restitution as a condition attached to the probation portion of his sentence.

Id. at 462-63 ,