Juliano v. State

BARBERA, J. This appeal requires us to consider the constitutionality of Maryland’s restitution statute, formerly codified at Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.), Article 27, § 807. 1 Appellant, Michael Juliano, contends that the statute eliminates the requirement that the State prove the victim’s entitlement to restitution. For the reasons we shall discuss, that contention fails. Appellant also complains about the amount of restitution he has been ordered to pay, and the prosecutor’s comments and conduct during his rebuttal to the defense’s closing argument. We discern no abuse of discretion in the trial court’s ruling with respect to closing argument.

We conclude, however, that the court erred in determining the amount of restitution. We shall therefore vacate the restitution order and remand for a new determination of the proper amount of restitution. FACTS AND PROCEDURAL HISTORY The underlying facts of this case are straightforward. In April 2001, appellant participated in a scheme that involved the purchase of automotive parts with stolen credit card information.

Early in that month, appellant, representing himself as “John” from “Wade’s Towing,” made a telephone ⁵³⁶ call to Brandywine Auto Parts, Inc. (“Brandywine”). He placed an order for parts, supplying the number of a credit card belonging to Bonnie and Thaddus Rose. He informed the sales clerk that he anticipated making a number of future purchases and wanted to use the same credit card number for each transaction. The clerk recorded the credit card number.

During the next several weeks, appellant placed numerous telephone orders using that card number. Appellant or other persons picked up the orders from Brandywine. A grand jury sitting in the Circuit Court for Charles County returned an indictment charging appellant with one count of theft of property with a value of $500.00 or more. Following a two-day jury trial, he was found guilty of that offense.

The court sentenced appellant to fifteen years’ incarceration, with all but eleven years suspended, and four years’ probation. The court also ordered, as a condition of probation, that appellant pay $6,881.42 in restitution to Brandywine. This appeal followed. Appellant frames the questions as follows: I. Did the prosecutor’s comments and conduct during closing argument deprive [appellant] of his right to a fair trial?

II

Did the trial court err in ordering [appellant] to pay restitution in the amount of $6,881.42? A. Maryland’s restitution statute is unconstitutional. B. The circuit court erred in failing to make explicit findings of fact with respect to the amount of restitution. C. The amount of restitution is not supported by competent evidence.

We shall address the two questions in reverse order. DISCUSSION Restitution Appellant challenges the constitutionality of Maryland’s “statutory restitution scheme,” arguing that the statute ⁵³⁷ violates due process because it dispenses with the requirement that the State prove by a preponderance of the evidence both the victim’s entitlement to restitution and the amount of it. He points to the statute’s inclusion of the language that a victim’s entitlement to restitution is “presumed,” enabling the sentencing court to order that relief solely on the basis of “competent evidence.” He separately contests the restitution award as not supported by competent evidence. The State responds to the merits of appellant’s arguments.

The State also interposes the contention that appellant has not preserved the arguments for our review. We first shall consider the State’s preservation argument. The court entered the order of restitution in this case as a condition of probation. 2 “An order to pay restitution as a condition of probation is part of the punishment for the crime. As such, ‘an illegal condition of probation can be challenged as an illegal sentence.’ ” Goff v. State, 387 Md. 327, 340 , 875 A.2d 132 (2005) (citation omitted).

A sentence, if illegal, may be corrected at any time. Md. Rule 4-345(a); Mateen v. Saar, 376 Md. 385, 397 , 829 A.2d 1007 (2003); see Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949 (1985) (holding “that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court”). Appellant contests the restitution order as illegal because it was the product of an unconstitutional statute and it was, in any event, unsupported by competent evidence proved by a preponderance of the evidence. The State cites several cases, Brecker v. State, 304 Md. 36 , 497 A.2d 479 (1985), Saenz v. State, 95 Md.App. 238 , 620 A.2d 401 (1993), and Corcoran v. State, 67 Md.App. 252 , 507 A.2d 200 , cert. denied, 307 Md. 83 , 512 A.2d 377 , cert. denied, 479 ⁵³⁸ U.S. 932, 107 S.Ct. 404 , 93 L.Ed.2d 357 (1986), in support of its argument that appellant’s contentions are not properly before us.

Those cases are inapposite, because none addresses review of the legality of the sentence itself. See Breaker, 304 Md. at 39-42 , 497 A.2d 479 (distinguishing Walczak, supra, and holding that the appellant’s complaint that the court’s ordering restitution, without first inquiring into his ability to pay restitution, was not preserved for appeal because the argument did not challenge the legality of the sentence and the appellant had not objected to the award on that ground at sentencing); Saenz, 95 Md.App. at 241 n. 1, 620 A.2d 401 (noting merely that we would consider Saenz’s appellate argument notwithstanding that his trial counsel’s comment of “Thank you, Your Honor” did “not constitute an objection” that would preserve Saenz’s argument for appellate review); Corcoran, 67 Md.App. at 254-55 , 507 A.2d 200 (distinguishing Walczak and holding that the appellant waived the contention that Maryland Rule 4-346 was violated because the hearing was held before someone other than the sentencing judge). The contentions appellant presents attack the substantive legality of the restitution order. Notwithstanding appellant’s failure to object at sentencing, his arguments are properly before us.

See Goff, 387 Md. at 339-40 , 875 A.2d 132 ; Walc-zak, 302 Md. at 427 , 488 A.2d 949 . The constitutional challenge Appellant’s first attack is grounded in a challenge to the constitutionality of a portion of Maryland’s restitution statute. For purposes of this case, the operative version of the statute is Maryland Code (1957, 1996 Repl.VoL, 2000 Supp.), Article 27, § 807. That section in pertinent part provides: (a) Restitution upon conviction, acceptance of plea of nolo contendere, etc.; priority of payment; reasons for not ordering restitution. -(1) A court may issue a judgment of restitution directing a defendant to make restitution in addition to any other penalty for the commission of a crime, if: ⁵³⁹ (i) Property of the victim was stolen, damaged, destroyed, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime; (2) A victim is presumed to have a right to restitution under paragraph (1) of this subsection if: (i) The victim or the State requests restitution; and (ii) The court is presented with competent evidence of any of items (i) through (vi) of paragraph (1) of this subsection.

(Emphasis added.) Focusing upon § 807(a)(2), appellant declares that the statute “violates due process because it does not require the State to prove the facts supporting an award of restitution by a preponderance of the evidence, and instead creates a presumption that restitution is warranted merely upon ‘competent evidence’ of a qualifying loss by the victim.” Appellant insists that, “under the statutory scheme governing restitution, the existence of any evidence of a loss, so long as it is not legally incompetent, generates a presumption that restitution is warranted, no matter how unpersuasive the ‘competent evidence’ may be in light of the totality of the evidence before the court.” We disagree that the statute’s reference to competent evidence generating a presumption of a qualifying loss by the victim eliminates the proof required for imposition of a restitution award. As we consider the issue, we are guided by the standard rules of statutory construction, principal among which is that we give effect to the plain language of the statute. Goff, 387 Md. at 341 , 875 A.2d 132 . Moreover, when, as here, a statute’s constitutionality is challenged, our consideration of the issue is governed by the principles that “there is a presumption that the statute is valid,” and appellate courts are “reluctant to find a statute unconstitutional if, by any construction, it can be sustained.” Galloway v. State, 365 Md. 599, 610 , 781 A.2d 851 (2001) (citations and internal quotation ⁵⁴⁰ marks omitted), cert. denied, 535 U.S. 990 , 122 S.Ct. 1547 , 152 L.Ed.2d 472 (2002).

By no stretch can it successfully be argued that Article 27, § 807 eliminates the basic requirement that the State prove the victim’s entitlement to a restitution award. Certainly, the State must introduce “competent evidence” to carry its burdens of production and persuasion that the victim is entitled to restitution, and, if so, the amount of it. “Competent evidence” is simply evidence that is reliable and admissible. See In re Billy W., 387 Md. 405, 433 , 875 A.2d 734 (2005) (citing Alix v. E-Z Serve Corp., 846 So.2d 156, 159 (La.App. 2003), for the proposition that “competent evidence” is evidence that has “some degree of reliability and trustworthiness”); Grier v. State, 351 Md. 241, 261 , 718 A.2d 211 (1998) (“Incompetent evidence refers to evidence that is inadmissible for reasons other than relevancy.”); Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 600 at 233 (3d ed.1999) (stating that “[t]he competency issue focuses upon the inherent reliability of the evidence being offered. Evidence that passes the relevancy and materiality tests will be admitted unless it is incompetent or privileged”).

We are convinced that a victim’s entitlement to a restitution award and the amount of the award are facts that the State must establish by a preponderance of the evidence. The Supreme Court has held that use of the preponderance of the evidence standard of proof during sentencing generally satisfies due process. See United States v. Watts, 519 U.S. 148, 156 , 117 S.Ct. 633 , 136 L.Ed.2d 554 (1997) (per curiam); McMillan v. Pennsylvania, 477 U.S. 79, 91-92 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986); cf. Apprendi v. New Jersey, 530 U.S. 466 , 487 n. 13, 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) (noting that the holding of McMillan is not overruled; rather, the holding is limited “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict”). The federal courts and a number of our sister states require the prosecution, by statute or by case law, to prove a victim’s ⁵⁴¹ entitlement to restitution by a preponderance of the evidence.

See United States v. Palma, 760 F.2d 475, 480 (3rd Cir.1985) (stating that, by statute, the government must prove the victim’s pecuniary loss by a preponderance of the evidence); Ex Parte Stutts, 897 So.2d 431, 433 (Ala.2004) (stating that, at a restitution hearing, the court need be convinced only by a preponderance of the evidence); In re Stephanie B., 204 Ariz. 466 , 65 P.3d 114, 118 (2003) (stating that “[t]he burden of proof applicable to restitution is proof by a preponderance of the evidence”); People v. Baker, 126 Cal.App.4th 463 , 23 Cal.Rptr.3d 871, 875 (2005) (same); People v. Harman, 97 P.3d 290, 294 (Colo.Ct.App.2004) (same); Benton v. State, 711 A.2d 792, 797 (Del.1998) (same); Koile v. State, 902 So.2d 822, 824 (Fla.Dist.Ct.App.2005) (stating that “[t]he burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence”); Law-renz v. State, 194 Ga.App. 724 , 391 S.E.2d 703, 704 (1990) (concluding that “the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence”); State v. Richmond, 137 Idaho 35 , 43 P.3d 794, 796 (2002) (stating that, by statute, when determining the amount of restitution in a criminal case, “economic loss shall be based upon the preponderance of evidence submitted to the court by the prosecutor, defendant, victim or presentence investigator”); State v. Wagner, 484 N.W.2d 212, 216 (Iowa Ct.App.1992) (stating that, by statute, a crime victim may recover damages proven by the state by a preponderance of the evidence); Commonwealth v. Palmer P., 61 Mass.App.Ct. 230 , 808 N.E.2d 848 , 850 (2004) (stating that “ttjhe standard of proof for restitution is preponderance of the evidence”); State v. Terpstra, 546 N.W.2d 280, 282 (Minn. 1996) (stating that, by statute, the prosecutor has the burden of proving the proper amount of restitution by the preponderance of the evidence); People v. Consalvo, 303 A.D.2d 202 , 756 N.Y.S.2d 541, 542 (N.Y.App.Div.2003) (stating that “the standard of proof at a restitution hearing is preponderance of the evidence, not beyond a reasonable doubt”); State v. Gill, 681 N.W.2d 832, 834-35 (N.D.2004) (concluding that the State has ⁵⁴² the burden of proving “the amount of restitution by a preponderance of the evidence”); McCullough v. Commonwealth, 38 Va.App. 811 , 568 S.E.2d 449, 451 (2002) (stating that “the ‘damages’ or loss incurred by an aggrieved party as a result of the offense need only be proved by a preponderance of the evidence”); State v. Hughes, 154 Wash.2d 118 , 110 P.3d 192, 211 (2005) (stating that, when “determining] the amount of restitution, the trial court can either rely on a defendant’s acknowledgment or it can determine the amount by a preponderance of evidence”); State v. Kennedy, 190 Wis.2d 252 , 528 N.W.2d 9, 11 (1994) (stating that, whereas a jury must be convinced of the value of an item beyond a reasonable doubt, the sentencing court may determine the amount of loss to the victim of a crime by a preponderance of the evidence); Renfro v. State, 785 P.2d 491, 493 (Wyo.1990) (stating that “[p]roof of the restitution amount as a question of sentence need only be proved by credible evidence, by a preponderance, or burden of the evidence”); see