Lindsey v. State

DEBORAH S. EYLER, J. Andrew Lindsey, the appellant, was shot and seriously injured in the course of an attempted robbery perpetrated by Shyquille Griffin and Antonio Whitely. Both men were charged with attempted first-degree murder and related offenses in the Circuit Court for Prince George’s County. Griffin entered into a written plea agreement, which was conditioned upon his cooperating with the State in the case against Whitely. The plea agreement made no reference to restitution.

The circuit court accepted Griffin’s plea. At Griffin’s sentencing hearing, Lindsey for the first time made a request for restitution. The court denied it on the ground that ordering Griffin to pay restitution would violate the terms of the plea agreement. The court proceeded to sentence Griffin.

Thirty days thereafter, Lindsey filed a motion under Md.Code (2001, 2008 Repl.Vol., 2011 Supp.), section 11-103(e)(2) of the Criminal Procedure Article (“Cr. P.”), 1 alleging that his right to restitution under section 11-603 had been improperly denied and asking the court to enter a judgment of restitution. 2 After a hearing, the court denied the motion on the same ground it had denied restitution at the sentencing hearing and on the additional ground that ordering Griffin to pay restitution would be an impermissible increase in his sentence. Lindsey filed an application for leave to appeal, which was granted. Griffin and the State of Maryland both are appellees.

Griffin has moved to dismiss the appeal for lack of jurisdiction. ⁵¹⁸ For the reasons to follow, we shall deny the motion to dismiss and shall hold that the circuit court abused its discretion in denying Lindsey’s motion. We shall vacate its order and remand the matter for further proceedings not inconsistent with this opinion. FACTS AND PROCEEDINGS The attempted robbery took place on May 26, 2011. Lindsey was 22 years old, was working as a barber, and, apparently, also was involved in the marijuana drug trade.

That day, Griffin, an old friend of Lindsey, arranged for Lindsey to sell seven grams of marijuana to Whitely, an acquaintance of Griffin. The three men met at a gas station parking lot in Upper Marlboro, Lindsey in his car and Griffin and Whitely in Griffin’s car. Griffin walked over to Lindsey’s car, and Lindsey gave him the marijuana. Griffin took it to Whitely, who weighed it, and concluded that it was short of seven grams.

Griffin returned to Lindsey’s car and asked “what else he had in the car.” Whitely then approached Lindsey’s car, pointed a handgun at Lindsey, and demanded “everything that [Lindsey] had in the vehicle.” When Lindsey tried to drive away, Whitely fired shots in his direction, striking him in the left arm. Lindsey managed to drive to his father’s house and from there he was transported by ambulance to the hospital. The bones in his left arm were shattered by the bullet. He underwent bone fusion surgery for which he was financially responsible, because he had no health insurance.

Lindsey is left-handed. Due to his injuries he no longer can work as a barber. On June 23, 2011, a grand jury in the Circuit Court for Prince George’s County indicted Griffin for attempted first-degree murder, attempted second-degree murder, robbery with a deadly weapon, attempted robbery, first and second-degree assault, use of a handgun in the commission of a crime of violence, two counts of carrying a handgun, two counts of transporting a handgun on a roadway, possession of a regulat ⁵¹⁹ ed firearm by a person under the age of 21, attempted theft, and conspiracy to commit murder. The grand jury also indicted Whitely for a multitude of crimes arising out of Lindsey’s shooting.

On December 16, 2011, Griffin appeared in court and entered a conditional ABA plea. 3 At a bench conference, the terms of a written “Proffer Agreement” were placed on the record. Under the agreement, Griffin promised to give truthful information about his own “criminal liability” and that of others and to testify truthfully in the case against Whitely. The “potential benefit” to Griffin would be the State’s agreement to a guilty plea to one count of attempted robbery, which carries a maximum sentence of 15 years, with a “sentencing cap of 15 years suspend all but 18 months[,]” with all other counts to be nol prossed. Defense counsel would be free to argue for less time.

Griffin would receive “two points for permanent injury [to Lindsey], but zero points for weapon usage” in the presentencing investigation. The “Proffer Agreement” said nothing about probation, conditions of probation, or restitution. It contained language stating it was “the full and complete agreement of the parties.” The court questioned Griffin about his age, educational level, ability to read and write, and whether he had read and understood the “Proffer Agreement.” As to the latter, Griffin confirmed that he had done so and was knowingly and voluntarily entering into the plea agreement. After that, the prosecutor recounted the evidence against Griffin and the court announced that it was “satisfied there [was] a factual basis to accept the plea.” Sentencing was scheduled for January 13, 2012.

The record does not reflect whether Lindsey or any representative of his was present in the courtroom on December 16, ⁵²⁰ 2011, when the plea agreement was accepted. The record also does not reflect whether Lindsey or his family were given notice of that hearing. 4 On January 13, 2012, the parties returned to court for the sentencing hearing. Also present were Lindsey’s mother, Jamillia Williams (who was acting as Lindsey’s representative); 5 his father; and his stepfather. None of them were represented by counsel.

By then, Whitely had pleaded guilty to first-degree assault and use of a handgun in a crime of violence and was awaiting sentencing. The prosecutor and defense counsel agreed that Griffin had cooperated as he had promised to do and that his cooperation had been instrumental in bringing about Whitely’s guilty plea. At a bench conference, the prosecutor informed the court that, sometime after the December 16, 2011 plea hearing, Lindsey had asked for $9,700 in restitution. The prosecutor explained, “[W]hile there is nothing in the plea agreement about restitution, the victim understands the statute, has the absolute right to ask for that.

The victim is asking for that. The defense, obviously, is exercising their right not to agree to pay that....” ⁵²¹ Defense counsel argued that Griffin’s plea agreement had been accepted by the court subject to conditions that had been fulfilled, and that the plea agreement as accepted did not include any obligation to pay restitution. He emphasized that the written “Proffer Agreement” made no mention of restitution and contained the “full and complete agreement of the parties” language. Defense counsel took the position that the State and Lindsey were precluded by the terms of the plea agreement from obtaining restitution from Griffin.

The sentencing judge called Williams to the bench. He told her that, because Griffin had entered into a plea agreement with the State that did not include restitution, the court could not order him to pay restitution. The court advised Williams that Lindsey could file a civil action against Griffin for the sum she was seeking in restitution. Thereafter, the court heard argument on sentencing.

Williams gave a victim impact statement. Consistent with the plea agreement, the court sentenced Griffin to a term of 15 years’ incarceration, with all but 18 months suspended. It ordered a three-year period of supervised probation. Using a court form, it imposed “All Standard Conditions” of probation, with some (including restitution) not checked off.

Griffin was given credit for 231 days time served. The State entered a nolle prosequi on each of the remaining charges. On February 13, 2012, Lindsey, now represented by counsel, filed a motion under section 11-103(e)(2), asserting that the circuit court had erred in denying his request for restitution because its legal conclusion that the terms of the plea agreement precluded it from ordering Griffin to pay restitution was incorrect. (For ease of discussion we shall refer to this motion as the “motion for reconsideration.”) Lindsey pointed out that in Lafontant v. State, 197 Md.App. 217 , 13 A.3d 56 cert. denied, 419 Md. 647 , 20 A.3d 116 (2011), this Court held that a circuit court did not violate the terms of the defendant’s plea agreement, which did not include restitution, by sentencing him to a term of incarceration, a portion of ⁵²² which was suspended, in keeping with the plea agreement; ordering five years supervised probation; and including the payment of restitution as a condition of probation.

Lindsey attached to his motion seven medical bills, totaling $10,762.75. 6 On March 7, 2012, the court held a hearing on Lindsey’s motion for reconsideration. Lindsey’s lawyer argued that Lindsey had a right to restitution under section 11-603(b), so long as he produced competent evidence of his medical expenses, and that, under section 11-615, his medical bills were competent evidence of those expenses. Griffin’s lawyer responded that the plea agreement as approved by the court on December 16, 2011, before Lindsey asked for restitution, was binding on the parties and capped Griffin’s sentence. He maintained that the court could not modify Griffin’s sentence to include restitution, as that would be an increase in the penalty agreed to by the parties, accepted by the court, and already imposed. 7 To that, Lindsey’s counsel pointed out that ordering restitution as a condition of probation would be permissible because “[t]he terms of probation can be changed at any time.” The court denied Lindsey’s motion for reconsideration on two grounds: ordering Griffin to pay restitution would be “contrary to the contract,” i.e., the plea agreement, and ordering Griffin to pay restitution would be an improper increase in his sentence.

On April 5, 2012, Lindsey filed an application for leave to appeal. The application was granted on July 8, 2013. Lindsey poses two questions, which we have rephrased: ⁵²³ 1. Did the circuit court err by denying his restitution request on the ground that it was precluded by the plea agreement? 2.

Did the circuit court abuse its discretion by denying his motion for reconsideration? DISCUSSION I. Applicable Law Respectively, Article 47(a) and (b) of the Maryland Declaration of Rights guarantee crime victims the right to “be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process” and to be “informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding.” In furtherance of these guarantees, Title 11 of the Criminal Procedure Article confers certain rights upon crime victims. In particular, Subtitle 6, Part I of that title grants victims the right to restitution. A “judgment of restitution” is “a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order of probation.” Cr.

P. § 11-601(g). As relevant, section 11-603, “Restitution determination,” allows a court to enter a judgment of restitution directing the defendant to “make restitution in addition to any other penalty” for the commission of the crime if the victim suffered “actual medical, dental, hospital, counseling, funeral, or burial expenses or losses.” Cr. P. § ll-603(a)(2)(i). A crime victim is “presumed to have a right to restitution” if “1) the victim or the State requests restitution; and 2) the court is presented with competent evidence of any item listed in [section 11-603(a) ].” Cr.

P. § 11-603(b). “[A] written statement or bill for medical, dental, hospital, counseling, funeral, or burial expenses is legally sufficient evidence of the amount, fairness, and reasonableness of the charges and the necessity of the ⁵²⁴ services or materials provided.” Cr. P. § 11-615(a). “A court need not issue a judgment of restitution,” however, if it finds “that the restitution obligor does not have the ability to pay the judgment of restitution” or “that there are extenuating circumstances that make a judgment of restitution inappropriate.” Cr. P. § 11-605(a)(1) and (2). If a court declines to order restitution under section 11-601 et seq., it must state its reasons on the record.

Cr. P. § 11-605(b). Under section 11-607, when a judgment of restitution has been entered under section 11-603, “compliance with the judgment of restitution: (i) may be a requirement in the judgment of conviction ...; [and] (iii) if probation is ordered, shall be a condition of probation: 1. In addition to the sentence or disposition....” Cr.

P. § 11-607(a). Section 11-103 governs appeals by crime victims from rulings denying their rights in the criminal prosecutions of their perpetrators. In 2012—the year pertinent to this case—that statute granted limited appeal rights, all by application for leave to appeal in this Court. Specifically, the statute gave the victim of a violent crime the right to file an application for leave to appeal, “from an interlocutory or final order that denies or fails to consider” certain enumerated statutory rights, including the right to restitution under section 11-603.

Cr. P. § 11—103(b). 8 In addition, section 11-103(e) gave a crime victim the right to file in the lower court a motion for relief challenging a restitution denial decision: (e) Ensurance of victim’s rights; restitution.—(1) In any court proceeding involving a crime against a victim, the court shall ensure that the victim is in fact afforded the rights provided to victims by law. ⁵²⁵ (2)(i) A victim who alleges that the victim’s right to restitution under § 11-603 of this title was not considered or was improperly denied may file a motion requesting relief within 30 days of the denial or alleged failure to consider. (ii) If the court finds that the victim’s right to restitution under § 11-603 of this title was not considered or was improperly denied, the court may enter a judgment of restitution.[ 9 ] (As noted, we are referring to the motion requesting relief under section 11-103(e)(2) as a “motion for reconsideration.”) Finally, Rule 8-204 governs applications for leave to appeal in this Court. Ordinarily, an application must be filed “within 30 days after entry of the judgment or order from which the appeal is sought.” Md. Rule 8-204(b)(2)(A).

An application for leave to appeal from an interlocutory order, pursuant to section 11-103, “may be filed at the time the victim’s right is actually being denied or within 10 days after the request is made on behalf of the victim, whether or not the court has ruled on the request.” Md. Rule 8-204(b)(2)(B).

II

Motion to Dismiss Griffin has moved to dismiss this appeal on the ground that the Court lacks jurisdiction over it. His argument is two-pronged. First, the judgment of conviction entered against him on January 13, 2012, was a final judgment that embodied the court’s denial of Lindsey’s request for restitution. Lindsey did not file an application for leave to appeal within 30 days of the entry of that judgment, however, so we do not have jurisdiction to consider whether the court erred in denying restitution at the sentencing hearing.

Second, the court’s ⁵²⁶ order denying Lindsey’s motion for reconsideration is not an appealable order. Therefore, even though Lindsey filed an application for leave to appeal within 30 days of the entry of that order, this Court does not have jurisdiction to consider a challenge to it. Lindsey responds that, because he timely filed a motion for reconsideration under section 11-103(e)(2), 30 days after entry of the judgment of conviction, the judgment of conviction was interlocutory, not final; and, although section 11—103(b) grants a victim of a violent crime the right to file an application for leave to appeal from an interlocutory order, the victim need not do so. The victim can opt to file an application for leave to appeal once a final judgment has been entered.

Lindsey maintains that the first time there was a final judgment in the case against Griffin was March 7, 2012, when the court entered its order denying his (Lindsey’s) motion for reconsideration. Because he timely filed his application for leave to appeal within 30 days of that date, this Court has jurisdiction to decide whether the court erred in denying restitution at the sentencing hearing and in denying the motion for reconsideration. We agree with the first prong of Griffin’s argument. The circuit court’s January 13, 2012 judgment of conviction was a final judgment when it was entered.

Griffin pleaded guilty to one count, the court sentenced him on that count, and the State nol prossed the remaining counts. See Hoile v. State, 404 Md. 591, 612 , 948 A.2d 30 (2008) (“ ‘When sentence is pronounced or imposed, there is a final judgment for purposes of appeal’ ”) (quoting State v. Sayre, 314 Md. 559, 565 , 552 A.2d 553 (1989), superseded by Rule change on other grounds as stated in Greco v. State, 347 Md. 423 , 433 n. 4, 701 A.2d 419 (1997)). The court’s ruling at the sentencing hearing denying Lindsey’s request for restitution was embodied in the judgment of conviction, in that no restitution judgment was entered. Therefore, the 30-day period for Lindsey to file an application for leave to appeal under section 11-103(b) and Rule 8-204(b)(2)(A) was triggered on January 13, 2012. ⁵²⁷ Moreover, there is no tolling provision in Rule 8-204. 10 So, even though Lindsey had the right to file a motion for reconsideration under section 11-103(e)(2), within 30 days of the court’s denial of his restitution request, his doing so did not toll the 30-day period in which to file an application for leave to appeal the January 13, 2012 final judgment.

Griffin is correct that because Lindsey did not file an application for leave to appeal within 30 days of the entry of the judgment of conviction against Griffin, this Court lacks jurisdiction to review the denial of restitution that was embodied in that judgment. We disagree with the second prong of Griffin’s argument, however. The details of that argument are as follows. Ordinarily, crime victims have no right to appeal from the judgments or orders entered in the criminal cases against their perpetrators.

See Lopez-Sanchez, 388 Md. 214 , 879 A.2d 695 (2005), superseded by statute as stated in Hoile, 404 Md. at 605 , 948 A.2d 30 . The legislature has conferred certain appeal rights upon victims of violent crimes, however; but whatever appeal rights victims have by statute are the only appeal rights they have. As discussed above, those appeal rights are set forth in section 11-103(b), which states, very specifically, that a victim of a violent crime may file an application for leave to appeal from an interlocutory or final order that denies or fails to consider a right secured to the victim by § 4-202 of this article, § 11-102, § 11-104, § 11-302, § 11-402, § 11-403, § 11-404, or § 11-603 of this title, § 3- ⁵²⁸ 8A-06, § 3-8A-13, or § 3-8A-19 of the Courts Article, or § 6-112 of the Correctional Services Article. Griffin maintains that, because section 11-103(e)(2) is not listed in section 11—103(b) as one of the rights secured to a victim that can be challenged on appeal for denial or failure to consider, an order entered under section 11-103(e)(2) is not appealable.

This argument overlooks the central purpose of a section 11-103(e)(2) motion for reconsideration, which is to protect a victim’s right to restitution. The motion for reconsideration is the vehicle by which a victim can challenge, in the same court, the court’s prior failure to consider or improper denial of a request for restitution. Thus, the right secured by section 11—103(e)(2) is the right of restitution under section 11-603, which is one of the enumerated rights in section 11-103(b). As the denial of Lindsey’s motion for reconsideration under section 11-103(e)(2) was a denial of his right to restitution under section 11-603, the court’s order is subject to appellate challenge by application for leave to appeal.

Accordingly, this Court has jurisdiction to review the circuit court’s order denying Lindsey’s section 11-103(e)(2) motion. We note that it makes no difference in our consideration of the issues on appeal that Lindsey failed to file a timely application for leave to appeal from the judgment of conviction. In its ruling on the motion for reconsideration, the court revisited the ground on which it had denied the restitution request at sentencing—that the plea agreement precluded the court from ordering restitution—and concluded that that decision had been correct. It ruled, in addition, that it could not order restitution because that would be an increase in Griffin’s sentence.

A motion under section 11-103(e)(2) may seek, as this one did, a reconsideration by the court of its decision to deny restitution. Ordinarily, the denial of a motion seeking reconsideration is reviewed on appeal for abuse of discretion. See U.S. Life Ins. Co. v. Wilson, 198 Md.App. 452, 464 , 18 A.3d 110 (2011).

An error of law is an abuse of discretion. Bass v. State, 206 Md.App. 1, 11 , 47 A.3d 582 (2012). Both bases for the court’s ruling were issues of law. Thus, if the ⁵²⁹ court erred in its decision on either of them, it abused its discretion.

III

Did the Terms of the Plea Agreement Preclude the Circuit Court from Ordering Restitution? Lindsey asserts that, as the victim of a violent crime who sought restitution and provided proof in support of his request, he had a presumptive right to restitution under section 11-603(b), and that the State could not waive or forfeit his right to restitution by entering into a plea agreement with Griffin. He points out that in Lafontant this Court held that the sentencing court did not violate the defendant’s plea agreement, which did not include a requirement to pay restitution, by including restitution as a condition of probation. Griffin and the State recognize that Lindsey had a right to restitution independent of the State’s right to restitution, and that the State could not waive or forfeit Lindsey’s right for him.

They argue, however, that Lindsey himself “forfeit[ed]” his restitution right by not seeking restitution before the court accepted the plea agreement. They assert that Lafontant is distinguishable because there the plea agreement was oral and “vague,” whereas the “Proffer Agreement” in this case was written, specific, unambiguous, made no mention of restitution, and included a “complete agreement of the parties” clause. (a) As mentioned, a criminal defendant may be ordered to pay restitution to the crime victim as a sentence for the crime, as a condition of any period of probation that is ordered, or both. See Cr.

P. § 11-601(g) (“judgment of restitution” is “a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order of probation.”). If a judgment of restitution is entered as a sentence, under section 11-603, compliance may be a requirement of the judgment; and if probation is ordered after entry of judgment, compliance shall be a condition of probation in ⁵³⁰ addition to a sentence or disposition. Cr. P. § 11-607(a)(1).

When restitution has been ordered as a sentence and the defendant, having the ability to pay, fails to do so, the court may use its contempt powers to punish the defendant. See Cr. P. § 11—607(c)(2); Smitley v. State, 61 Md.App. 477, 483 , 487 A.2d 315 (1985). Sections 6-221 and 6-222 give a court entering a judgment of conviction broad powers to order probation.

Section 6-221 states, simply, that, “[o]n entering a judgment of conviction, the court may suspend the imposition or execution of sentence and place the defendant on probation on the conditions that the court considers proper.” Further, section 6-222 authorizes a court to “impose a sentence for a specified time and provide that a lesser time be served in confinement;[ ] suspend the remainder of the sentence; and [ ] order probation” for a period of time as elaborated upon in that statute. The latter is known as a “split sentence.” Moats v. Scott, 358 Md. 593, 595 , 751 A.2d 462 (2000). If a court imposes a “split sentence,” ie., a sentence for a specified period of time with part of the time being suspended, there must be a period of probation attached to the suspended part of the sentence. Cathcart v. State, 397 Md. 320, 327 , 916 A.2d 1008 (2007).

Without a period of probation, the sentence effectively would be for the unsuspended time only. Id. at 329 , 916 A.2d 1008 . “Probation is by definition conditional,” that is, it is imposed subject to conditions with which the defendant must comply. Gibson v. State, 328 Md. 687, 689 , 616 A.2d 877 (1992). When a defendant violates a condition of probation, the court may strike the probationary period and sentence the defendant to serve all or part of the original sentence of imprisonment.

Cr. P. § 6-224(b)(1)(i). Alternatively, the court may suspend all or part of that sentence upon further probation. Id. at (b)(2).

Also, if the court did not impose a sentence originally, the court may impose any sentence permitted by law. Id. at (b)(1)(ii). ⁵³¹ A plea agreement is in the nature of a contract between the defendant and the State. Tweedy v. State, 380 Md. 475, 482 , 845 A.2d 1215 (2004); Hillard v. State, 141 Md.App. 199, 207 , 784 A.2d 1134 (2001); Ogonowski v. State, 87 Md. App. 173, 182-83 , 589 A.2d 513 (1991). Cases that have addressed whether a term of a plea agreement has been breached—which necessarily requires an assessment of the meaning of the plea agreement—have applied contract principles.

See, e.g., Cuffley v. State, 416 Md. 568, 579-80 , 7 A.3d 557 (2010); Carlini v. State, 215 Md.App. 415, 446 , 81 A.3d 560 (2013). In Rankin v. State, 174 Md.App. 404 , 921 A.2d 863 (2007), we explained: “[S]everal courts have noted that the terms of [a] plea agreement are to be construed according to what [the] defendant reasonably understood when the plea was entered.” Tweedy, 380 Md. at 482 [ 845 A.2d 1215 ]. In addition, “[t]he words employed in the contract are to be given their ordinary and usual meaning, in light of the context within which they are employed.” Ridenour v. State, 142 Md.App. 1, 6 [ 787 A.2d 815 ] (2001). We construe the agreement as a whole, to give effect to all parts of the contract.

Owens-Illinois, Inc. v. Cook, 386 Md. 468, 497 [ 872 A.2d 969 ] (2005). In determining a defendant’s reasonable understanding of the agreement at the time he entered into it, “we consider terms implied by the plea agreement as well as those expressly provided.” United States v. Runner, 134 F.3d 1000, 1003 (10th Cir.1998). See also People v. Manzanares, 85 P.3d 604, 608 (Colo.App.2003) (stating that “terms of a plea agreement may be implied as well as expressed plainly on the agreement’s face.”) (citation omitted); State v. Brooke, 134 Idaho 807 , 10 P.3d 756 (2000). Id. at 409 , 921 A.2d 863 (some internal citations omitted).

The meaning of a plea agreement, like the meaning of any contract, is a question of law subject to de novo review. Solorzano v. State, 397 Md. 661, 668 , 919 A.2d 652 (2007). ⁵³² (b) We begin our analysis with the two cases most relevant to the question whether the circuit court erred as a matter of law in construing Griffin’s plea agreement to preclude the court from ordering Griffin to pay restitution as a condition of probation: Rankin v. State, 174 Md.App. 404 , 921 A.2d 863 , and Lafontant v. State, 197 Md.App. 217 , 13 A.3d 56 . In Rankin , the defendant appealed from an order denying his motion to correct illegal sentence. He had entered into a plea agreement to one count of conspiracy to commit a second degree sex offense.

When the plea agreement was presented to the court, the prosecutor said, “ ‘The only limitation on sentence is the Court had bound itself to an active cap of no more than three years.’ ” 174 Md.App. at 406 , 921 A.2d 863 . The judge explained the terms of the plea agreement to the defendant: “Okay. I’m told that the agreement is if that plea is accepted that the State will dismiss all the other counts at the time of sentencing. In addition, the active portion of the sentence, that’s the portion that’s not suspended, cannot exceed three years.

The Court could, however, as part of the sentence, impose the sentence where the suspended portion exceeds three years.” Id. The defendant said he understood, and the court accepted the plea agreement. A written “Plea/Sentence Agreement” was filed that day. It recounted that the defendant would plead guilty to conspiracy to commit second degree sex offense; the State would dismiss the remaining charges; and the court would “impose an active cap of no more than 3 years.

Court may impose additional suspended time.” Id. at 407 , 921 A.2d 863 . The writing further provided, “There is no other sentencing limitation except that provided by law.” Id. When sentencing took place two months later, the court warned the defendant that if he violated his probation he would “ ‘run the risk of doing substantially all the back up time. Do you understand that?’ ” Id. at 406 , 921 A.2d 863 .

The defendant responded that he did. In accordance with the ⁵³³ plea agreement, the court imposed a sentence of 20 years, all but three years suspended, followed by five years’ probation. It advised the defendant of the conditions of his probation and issued an order stating those conditions, which the defendant’s lawyer said he was going to review with the defendant right then. A little more than a year after the defendant was released from prison, he committed a new offense, which was a violation of one of the conditions of his probation.

At the violation hearing, the defendant admitted to committing the new offense. The court ordered him to serve ten years of the previously suspended portion of his sentence. About five years later, the defendant filed a motion to correct illegal sentence, arguing that the plea agreement as accepted by the court before sentencing did not include probation and therefore the court lacked authority to order probation (and conditions thereto); to find him in violation of probation; and to order him to serve a portion of the suspended time as a consequence of the probation violation. The court denied the motion.

This Court affirmed. We explained that because the court imposed a split sentence—i.e., a term of incarceration part of which was suspended—a period of probation was implicit in the plea agreement, “because a period of probation must be attached to a suspended sentence.” 174 Md.App. at 411 , 921 A.2d 863 . We held that “the right to impose a period of probation is included in any plea agreement that provides for a suspended sentence. If we were to hold otherwise, the imposition of a suspended sentence would be meaningless.” Id. at 411-12 , 921 A.2d 863 (footnote omitted).

We further concluded that a reasonable person in the defendant’s position would have understood the plea agreement to include probation, given the court’s admonition at the time of sentencing. Moreover, neither the defendant nor his counsel objected to the court’s ordering a period of probation, even though the plea agreement as accepted by the court and reduced to writing said nothing about probation. ⁵³⁴ In Lafontant, 197 Md.App. at 217 , 13 A.3d 56 this Court applied the principles established in Rankin in the context of restitution ordered as a condition of probation in a plea agreement. In that case, the defendant was charged with vehicular manslaughter and related offenses. The deceased victim’s grandmother, acting as her representative, requested and received notice of all proceedings.

The defendant entered into an oral plea agreement with the State. At the plea hearing, which the victim’s representative attended, the terms of the plea agreement were placed on the record. The defendant agreed to plead guilty to one count of vehicular manslaughter and the State agreed to request “ ‘no more than four years active incarceration,’ ” without prejudice to defense counsel’s right to argue for less time. Id. at 223, 13 A.3d 56 .

The court accepted the plea agreement. The victim’s representative did not speak at the plea hearing. On the day of sentencing, the victim’s representative filed a written request for restitution of approximately $12,000. She attached medical bills and funeral and burial expenses in support.

Defense counsel opposed the request, arguing that restitution was not part of the plea agreement and therefore could not be ordered. The court gave the defendant the opportunity to withdraw his plea, which he declined to do. The parties consented to the court’s delaying a ruling on the restitution request “to allow defense counsel to discuss it with his client, and to permit the parties and counsel for the victims’ representative to supply the court with authority for and against the request.” Id. at 224 , 13 A.3d 56 . The court imposed a sentence of ten years’ incarceration, all but four years suspended, and five years’ supervised probation, with the sentence being subject to further decision on the restitution request.

When the parties and the victim’s representative were unable to “agree on the issue of restitution” a hearing was scheduled. Id. at 224-25 , 13 A.3d 56 . The defendant again argued that he could not be ordered to pay restitution because restitution was not a term of his plea agreement. The circuit court ruled that although the plea agreement capped the ⁵³⁵ amount of “active incarceration” the defendant could be ordered to serve, it did not limit the court’s discretion to impose conditions of probation, including restitution.

Observing that the defendant “ ‘got the benefit of his [bargain],’ ” the court concluded that restitution as a condition of probation would not contravene the plea agreement, and ordered restitution as such a condition. Id. at 225 , 13 A.3d 56 (alteration in original). The defendant filed an application for leave to appeal in this Court, which was granted. We examined the terms of the plea agreement and assessed, as a question of law, what a reasonable person in the defendant’s position would have thought the language of the oral plea agreement meant, taking existing sentencing law into account.

We pointed out that the State “did not expressly require that [the defendant] pay restitution as part of the plea agreement [nor did the] State expressly waive the right to request restitution, either by it or by the victim directly.” Id. at 233 , 13 A.3d 56 . We held that the defendant “could not reasonably have believed that the terms of the bargain impliedly waived the victim’s right to restitution” and that, even if the defendant “might have understood the State was impliedly waiving its right to restitution, [he] should reasonably have understood that the victim was not.” Id. at 234 , 13 A.3d 56 (emphasis in original). Thus, the plea agreement “contained neither an express nor an implied waiver of the victim’s right to restitution in a criminal and/or civil proceeding.” Id. We observed that payment of restitution is a common condition of probation, and a period of probation necessarily was imposed because the plea agreement called for a split sentence.

Id. at 234-35 , 13 A.3d 56 . See also Carlini v. State, 215 Md.App. at 455 , 81 A.3d