Lee v. State

MURPHY, Chief Judge. The question presented is whether, in light of Walczak v. State, 302 Md. 422 , 488 A.2d 949 (1985), a defendant in a criminal case may, as part of a plea agreement, lawfully be ⁷⁶ ordered to pay restitution in an amount greater than that involved in the crime of which he was convicted. I. Bernard Lee was charged in the Circuit Court for Montgomery County in a two-count indictment (1) with having forged a check on August 18, 1980 in the amount of $198 in violation of Maryland Code (1982 Repl. Vol.), Article 27, § 44 and (2) with theft of $3,155 between the dates of July 31 and September 12, 1980 in violation of Article 27, § 342.

Pursuant to plea negotiations between the parties, Lee agreed to plead guilty to the forgery count; in return, the prosecutor agreed to nol-pros the theft count. At trial before Judge Sanders, the prosecutor informed the court of the plea negotiation, stating that when Lee entered his plea of guilty to the first count, “the State would proffer the facts relating to all pending charges”; that as a condition of the plea agreement Lee would make “a full admission of guilt”; and that the prosecution would reserve the right “to seek restitution to victims in these cases.” After the court had ascertained that Lee had voluntarily assented to the plea agreement, the prosecutor set forth a factual basis to establish Lee’s guilt of both the forgery and the theft counts. Asked whether he agreed with the State’s factual proffer, Lee said that he did and, further, that he wanted to make restitution. Thereafter, the court sentenced Lee to a term of seven years’ imprisonment, suspending all but six months upon the expiration of which Lee would be placed on probation for three years.

At the time of sentencing, Lee signed an “Order of Probation” in which he agreed, as a condition of probation, to pay restitution of $3,155, the amount of loss charged in the nol-prossed theft count. Upon Lee’s failure to pay the required restitution, a petition was filed to revoke his probation. At the probation revocation hearing before Judge Sanders, Lee argued that in view of the nol-pros of the theft count the court lacked authority to order restitution in an amount greater than $198, that being the loss involved in the forgery offense to ⁷⁷ which he had pleaded guilty. After reviewing the terms of the plea agreement, Judge Sanders revoked Lee’s probation, concluding that Lee had expressly agreed to make restitution to the “victims” of the offenses charged in the indictment; that this was a “plural designation”; and that it was upon this basis that the court ordered restitution in the full amount of $3,155.

On appeal, Lee argued to the Court of Special Appeals that under Walczak v. State, supra, he could not be ordered to pay restitution of the $3,155 loss alleged in the theft count because he had not been convicted of that offense. The intermediate appellate court affirmed the judgment in Lee v. State, 65 Md.App. 149 , 499 A.2d 969 (1985). It there concluded that consistent with our holding in Walczak , “where a defendant either in a plea agreement or by some other method acknowledges a specific obligation to make restitution beyond the amount involved in the crime of which he is convicted, the trial court may order restitution of that amount.” 65 Md.App. at 154 , 499 A.2d 969 . We granted certiorari to consider whether the challenged order of restitution violated the principles announced in Walczak .

II

In Walczak , the question was whether “a trial court may order a defendant to pay restitution to a victim of a crime of which the defendant was not convicted.” 302 Md. at 423-24 , 488 A.2d 949 . In that case the defendant was charged with robbing two different victims. Pursuant to an agreement between the defendant and the State, Walczak was tried for only one robbery, as to which he pleaded not guilty and submitted on an agreed statement of facts. Upon his conviction for this offense, the State nol-prossed the other robbery count.

At sentencing, the court, as a condition of probation, ordered the defendant to make restitution in the full amount of the loss sustained by the victims of both robberies. Without objection, Walczak signed an order of ⁷⁸ probation requiring the payment of restitution to both victims. We held that restitution under Maryland’s governing statute is imposed as punishment for the crime of which the defendant has been convicted. 1 We said that restitution depends “on the existence of that crime, and the statute authorizes the court to order restitution only where the court is otherwise authorized to impose punishment.” 302 Md. at 429 , 488 A.2d 969 . We, therefore, concluded that the trial court exceeded its statutory authority in requiring Walczak to pay restitution to the victim of a robbery of which he had not been convicted.

In so concluding, we noted that courts in some jurisdictions have developed a “narrow exception” to the general rule “in cases in which a defendant has entered a plea agreement for restitution of greater amounts than those involved in the crime for which conviction was had.” Id. at 432 n. 3, 488 A.2d 969 . We observed, however, that “[n]o such plea agreement was entered into in the case at bar.” Id.

III

The terms upon which probation may be granted include the payment of restitution—a condition imposed for the fundamental purpose of rehabilitating the defendant and affording the aggrieved victim recompense for monetary loss. Coles v. State, 290 Md. 296, 305-06 , 429 A.2d 1029 (1981). That the restitution process is designed to achieve these purposes is widely recognized. See, e.g., United States v. Buechler, 557 F.2d 1002 (3d Cir.1977); ⁷⁹ United States v. McLaughlin, 512 F.Supp. 907 (D.Md.1981); State v. Bausch, 83 N.J. 425 , 416 A.2d 833 (1980).

We think the General Assembly clearly intended the attainment of these objectives when it enacted Maryland’s restitution statute, Art. 27, § 640(b), see n. 1, supra. Under the federal probation and restitution statute, 18 U.S.C. § 3651 , a conviction is a prerequisite to a probationary sentence and may be accompanied by an order to pay restitution “to aggrieved parties for actual damages or loss caused by the offense for which conviction was had.” Some courts have interpreted the federal statute to permit an order of restitution, as a condition of probation, in an amount greater than that involved in the crime to which a guilty plea was entered in pursuance of a plea agreement (1) where the additional loss, as charged in other counts of the indictment nol-prossed under the plea agreement, is reasonably determinable; (2) the defendant admits the criminal conduct causing such additional loss; and (3) freely and voluntarily agrees to make full restitution for all losses as part of the plea negotiation. See, e.g., United States v. Woods, 775 F.2d 82 (3d Cir.1985); United States v. Suter, 755 F.2d 523 (7th Cir.), cert. denied, 471 U.S. 1103 , 105