Keys v. State

GRAEFF, J. On September 15, 2008, in the Circuit Court for Carroll County, Charles R. Keys, Jr., appellant, pled guilty to seven counts of theft and identity fraud. 1 On counts 1, 2, 19 and 21, ²¹ the court imposed concurrent sentences of 15 years, all but ten suspended, to be followed by five years on probation. 2 The court ordered that restitution be paid in an “amount to be determined within 60 days either by agreement or if not agreed to, then either party can request a restitution hearing before the Court.” When the parties were unable to agree on restitution, the court held a restitution hearing and ordered appellant to pay restitution to multiple victims in the amount of $101,993.42. On appeal, appellant presents one question for our review, which we have rephrased slightly: Did the circuit court err in ordering appellant to pay $6,565.50 in restitution to Next Day Blinds and $38,123.16 in restitution to Williams-Sonoma? For the reasons set forth below, we shall dismiss the appeal as untimely. FACTUAL AND PROCEDURAL BACKGROUND On September 15, 2008, appellant was facing 121 counts of identity theft, credit card fraud, and other theft related offenses involving many different victims.

Appellant entered into a plea agreement, which provided that, in exchange for appellant’s plea of guilty to seven counts, the court would “enter a sentence of a maximum time served of 10 years with whatever suspended period of time [the judge] considers appropriate as well as any applicable probation and or restitution.” As indicated, the amount of restitution was “to be determined within 60 days,” either by agreement, or, if no agreement could be reached, then after a restitution hearing. The State presented a statement of facts “to corroborate the plea.” The facts presented indicated that, between November ²² 2005 and February 2007, appellant engaged in a felony theft scheme, receiving goods with a value over $500 by “means of stolen and misrepresented credit cards” issued to numerous individuals. Appellant stole the following items: Swarovski Crystal, GPS units, kitchen and housewares merchandise, gift cards, jewelry, purses, shoes, clothing, blinds, air line flights and other miscellaneous items from William Sonoma, J. Crew, J. Jill, Brooks Brothers, Bass Pro Shops, Territory Head, Isabella Bird Company, Next Day Blinds, Ware Jewelers, Lowe’s, Macy’s, Zabos, Marshall Fields and other various merchants and or corresponding credit card company having a value of over $500 or greater in violation of [Md.Code (2002 Repl. Vol.), § 7-104 of the Criminal Law Article].

The statement of facts described appellant’s actions as “an account take over scheme,” explaining that, “[i]n all of their cases, the victim’s credit cards themselves were still in the victim’s possession but their credit card numbers were used by some person unknown to them,” and that “[a]ll the merchandise ordered with the compromised credit card numbers were delivered to drop off points through Baltimore City Maryland.” The investigation revealed that many of the victims had a common charge of $39 from a Baltimore City heating and air conditioning business called Cold Spring Company, Inc. Authorities eventually traced to appellant’s wife a phone number that was used to obtain phone approval of credit card transactions, using Cold Spring Company’s merchant ID number. On March 7, 2007, police executed a search and seizure warrant for appellant and Ms. Keys’ residence. 3 The search revealed numerous items that “were linked back to purchases made using stolen credit card numbers of Carroll County victims,” “paperwork and computers linked to credit card thefts,” in addition to “dozens of credit card numbers and owners’ information.” After contacting the victims, authori ²³ ties found that approximately 99% of the victims had used their credit cards at a Great Clips Hair Salon in Westminster, Maryland. This led the police to believe that an employee at that salon “was stealing the identity of the credit card customers and relaying that information to” appellant. The statement of facts indicated that Special Agent Low-man, a United States Secret Service Special Agent, conducted a forensic analysis of appellant’s computer, and he determined that appellant used the computer for numerous fraudulent purchases.

In particular, “Charles and Ericka Keys had used stolen credit card numbers to purchase items over the phone and via the internet totaling well in excess of $100,000. They also possessed dozens of personal — victim’s personal identifying information which had not been used to purchase the items.” After determining that the State’s facts corroborated appellant’s guilty plea, the court found appellant guilty on all seven counts. The State nol prossed the remaining charges. The court then inquired regarding the status of restitution.

The State indicated that it needed more time to get exact figures from the retail victims. The court responded that it would “provide that [appellant] pay restitution in an amount to be determined,” and that it would give the parties 60 days to agree to an amount. If an agreement could not be reached within 60 days, either party could “request a restitution hearing at which a restitution figure will be determined.” The court then imposed the sentence of incarceration, to be followed by five years on probation, subject to the condition that appellant pay restitution in an amount “to be determined” within 60 days. 4 The court stated that the restitution would be determined “either by agreement or if not agreed to, then either party can request a hearing before the Court.” ²⁴ On December 5, 2008, the State filed a Request for Restitution Hearing, stating that the parties were unable to reach an agreement. On June 15, 2009, the court held a hearing.

The State advised the court that the parties agreed on “the total amounts for each of these companies that were compromised as a result of the theft scheme,” but there was disagreement regarding “credit for the merchandise that was recovered and also the defendant’s ability to pay.” David Siuta, the regional loss prevention manager with Williams-Sonoma, testified regarding Williams-Sonoma’s loss. He accompanied authorities to appellant’s residence during the execution of the search warrant to identify stolen merchandise belonging to Williams-Sonoma. Mr. Siuta found numerous Williams-Sonoma items that were connected to the stolen credit cards. Mr. Siuta took these items to a Williams-Sonoma retail store to determine if the items were in resale condition, or if they were appropriate for donation to charity or trash.

He explained that an item would be unsellable if it was used, which was the case with most of the items recovered from appellant’s residence. The State introduced into evidence a list prepared by the store manager, indicating which items were to be disposed of or donated, and which items were “in sellable condition.” The items that were able to be resold by Williams-Sonoma had a retail value of $908.95. The total loss to Williams-Sonoma was $39,032.11. Williams-Sonoma sought restitution in the amount of $38,123.61, which reflected the difference between the total loss to the company and the $908.95 in merchandise that the company determined could be resold.

Jeffrey Schuster, a Detective with the Criminal Investigations Bureau of the Westminster Police Department, participated in the search of appellant’s residence. He recovered custom-made blinds from Next Day Blinds, which were obtained through fraudulent transactions. Some of the blinds were hanging in the residence and some were still sealed. Detective Schuster notified Next Day Blinds, but the company ²⁵ did not want the blinds.

It released the blinds to the Westminster Police Department and sought restitution in the amount of $6,562.50. Detective Schuster testified that the items that were being held by the State Police, the State’s Attorney, or by the Westminster Police would be resold, if possible. Any profits from these sales would apply as a credit to the restitution amounts ordered. The detective did not know how the blinds were going to be utilized by the police department, but he stated: “If they can be sold, they will be sold.” After Detective Schuster’s testimony, the State and appellant’s counsel stipulated that appellant was incarcerated and had no current source of income.

The court then recessed and permitted appellant’s counsel to submit further argument in writing, ordering the State to respond to that argument within 15 days of receipt. On June 30, 2009, appellant filed a Memorandum in Response to State’s Request for Restitution. In addition to arguing that the court should not issue a judgment of restitution because he did not have the ability to pay, appellant contended that, pursuant to Md.Code (2002), § 7-104(g)(l)(ii) of the Criminal Law Article (“C.L.”), he had the option to restore the stolen property to the owner or pay for the property. He argued that “payment of value of the property is inappropriate where the property has been restored to the owner,” and therefore, it was inappropriate for Williams-Sonoma to seek payment of the value of the items that were recovered.

Similarly, with respect to Next Day Blinds, appellant suggested that the company’s release of the property to the Westminster Police Department constituted a recovery of the items by Next Day Blinds, with a subsequent donation to the police, and therefore, he could not be required to pay for its value. He argued that he should not be required to pay the value of the blinds without an order that the blinds be returned to him. On July 7, 2009, the State filed a memorandum in response. Initially, the State refuted appellant’s contention that he did ²⁶ not have the ability to pay the restitution amount.

The State also asserted that appellant’s interpretation of C.L. § 7-104(g)(l)(ii) was “not in conjunction with the restitution statute ... and is in disregard [of] the legislative history behind the restitution and theft statutes.” The State argued that appellant did not meet his burden in challenging the restitution requested by Williams-Sonoma or Next Day Blinds. On July 17, 2009, the circuit court ordered appellant to pay restitution, as a condition of his probation and as a term of his sentence, to multiple victims. Specifically, the court ordered appellant to pay $6,565.50 to Next Day Blinds and $38,123.16 to Williams-Sonoma. This order was entered on July 20, 2009, and on July 24, 2009, the court recorded civil judgments in these amounts.

On August 24, 2009, appellant filed a “Notice of Appeal and Alternatively, Application for Leave to Appeal,” challenging the order of restitution. On May 27, 2010, we issued an order granting appellant’s application for leave to appeal and transferring this case to the direct appeal docket. 5 DISCUSSION Appellant contends that “the circuit court erred in ordering [him] to pay restitution to Williams Sonoma, Inc. and to Next Day Blinds where the property had been restored to the owner.” He argues that, pursuant to C.L. § 7 — 104(g)(1)(H), “the court could not order restitution for the items of property that have been restored to the owner.” 6 ²⁷ The State contends that appellant’s “express agreement to pay restitution as determined by the circuit court as part of the binding plea agreement waives his appellate challenge to the restitution order.” It further argues that the restitution awards were appropriate, supported by competent evidence, and fair, asserting that the “property