McCrimmon v. State

³⁰³ ZARNOCH, J. When a financial agent holding a power of attorney for a nursing home resident embezzles and misappropriates her charge’s monies, including those intended to pay the facility’s bills, is the nursing home transformed from a mere creditor to a “victim” for purposes of state restitution laws? Under the circumstances of this case, we answer “no.” BACKGROUND This appeal arises from the 2012 conviction in the Circuit Court for Baltimore County of appellant Penny McCrimmon for embezzlement and misappropriation of funds by a fiduciary and from the court’s sentence that included an order for restitution. On March 31, 2011, the State filed a criminal information in the circuit court charging McCrimmon with three counts: theft of property valued at least $10,000 to $100,000, obtaining the property of a vulnerable adult, and fraudulent appropria- , tion by a fiduciary of the victim’s money or property (embezzlement). The victim is appellant’s cousin, Reginald Gant.

On January 18, 2012, appellant pleaded guilty to the third count, and the State agreed to enter a nolle prosequi on the remaining two charges. The prosecutor’s recital of the facts at the guilty plea hearing included the following: STATE: Mr. Gant ... would identify Penny McCrimmon, seated next to Mr. Smith here in Court, they are first cousins. What Mr. Gant would have testified today, if he was called to testify, was that between April the 1st of 2010 and February the 17th of [2011], while he was residing at the Chapel Hill Nursing Home, which is located over in the Randallstown area of Baltimore County. That during that time period that he had given Ms. McCrimmon a Power of Attorney....

The Power of Attorney granted her ability to manage his funds. He was in a very bad medical condition ... and he relied upon Ms. McCrimmon during that time. He entrusted her with his money and that she was going to ³⁰⁴ use it as intended, to take care of his medical bills and for his benefit. It turned out that appellant was collecting Gant’s income, but diverting this money for her own benefit, and not paying Gant’s bills.

According to the prosecutor: [The victim’s] money then ... flowed, moved by Ms. McCrimmon into the other account, the 3979 account, at which time she then spent it and she didn’t spend it on Mr., Mr. Gant during this time period, but instead, she went to McDonald’s [and other retailers, and] she ... spent that money. Now, this continued each month until February of 2011 and if called to testify, Mr. Gant would indicate that she did not have permission to spend this money this way. He had not given her permission to spend it for her own personal gain. Mr. Gant eventually realized that his obligation to Chapel Hill was not being met.

He owed a bill of $19,718. The original bill actually was much, much larger and Mr. Ryan Evans is here from Chapel Hill, he was a former administrator there, he worked with Mr. Gant during this time period and he was familiar with Ms. McCrimmon as well. He had spoken to Ms. McCrimmon and Ms. McCrimmon said that she was, in fact, spending down his money so that he could qualify for medical assistance. He didn’t really get into that but he knew that this bill was large and looming.

The bill originally was, I think, in the forties and they agreed to reduce the amount to $19,718. That’s the bill that Mr. Gant owes today. That bill has never been paid by Ms. McCrimmon. She never used any of his money for that purpose and, again, because of what the evidence is from the banking statements, she used it for her own personal gain in violation of the trust that she was given by Mr. Gant.

The prosecutor introduced into evidence a number of documents. The first was a fill-in-the-blank “Durable Unlimited ³⁰⁵ Power of Attorney” form. 1 The document spoke in general terms of the financial agent’s power to act with regard to Gant’s financial and business transactions, but did not mention Chapel Hill or a duty to pay the nursing home. This instrument was dated June 8, 2010, just two months after Gant’s admission to Chapel Hill. It was witnessed by two employees of the Home: a licensed social worker associate (LSWA) and an administrator of the facility.

The second document was a “Maryland Advance Directive: Planning for Future Health Decisions” (“Advance Directive”). It was also dated June 8th and named McCrimmon as health care agent for Gant. It was witnessed by the LSWA, who also attested to Gant’s competence. The final document was a “Revocation of Power of Attorney” and Appointment of Healthcare Agent, dated February 4, 2011 and also witnessed by the LSWA.

Gant was also called as a witness. When the court asked if there was anything he wanted to say, he responded, “It’s just that I have a bill to pay, you know, and I’m going to do it, I’m going to pay it....” The circuit court accepted the plea and sentenced appellant to five years’ incarceration, suspended in favor of five years of unsupervised probation. The court also ordered appellant to pay restitution to Chapel Hill Nursing Home in the amount of $19,718.73. 2 On December 17, 2012, appellant filed a petition for post-conviction relief. On July 10, 2013, the circuit court granted the petition in part and allowed appellant leave to file a ³⁰⁶ belated application for leave to appeal.

All other relief was denied. After the application was filed in this Court and the State responded, this Court, on September 10, 2014, transferred the case to the direct appeal docket. QUESTIONS PRESENTED 1. Whether the Chapel Hill Nursing Home was an entity entitled to restitution in this case? 2.

Whether the circuit court erred in failing to address whether McCrimmon had the ability to pay restitution before ordering her to do so? 3. Whether there was sufficient evidence to justify a restitution award of $19,718? We answer the first question in the negative and need not address the last two issues. However, because Gant was clearly a victim entitled to restitution, which he apparently would seek to redirect to Chapel Hill, we remand for further proceedings on the issue of restitution. 3 DISCUSSION Standard of Review An appellate court reviews the circuit court’s restitution order for an abuse of discretion.

Silver v. State, 420 Md. 415, 427 , 23 A.3d 867 (2011). However, if an order of restitution is illegal in any respect, we review it as a matter of law. See Md. Rule 4-345(a) (“The court may correct an illegal sentence at any time”); Carlini v. State, 215 Md.App. 415, 443 , 81 A.3d 560 (2013). When we interpret a statute, we review that legal question de novo.

Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006) (citing Moore v. State, 388 Md. 446, 452 , 879 A.2d 1111 (2005)). ³⁰⁷ In Blue v. Prince George’s County, 434 Md. 681, 689 , 76 A.3d 1129 (2013), the Court of Appeals described our process for determining legislative intent: Our colleagues on the Court of Special Appeals have aptly summarized this quest, based on this Court’s past decisions, as one that requires an examination of the statutory text in context, a review of legislative history to confirm conclusions or resolve questions from that examination, and a consideration of the consequences of alternative readings. Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity. Legislative purpose, either apparent from the text or gathered from external sources, often informs, if not controls, our reading of the statute. An examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.

(Internal quotation marks and citations omitted). Analysis Restitution, as applied in a criminal case under Maryland’s Criminal Procedure Article, is a criminal sanction, not a civil remedy. It serves at least three distinct purposes. First, it is a form of punishment for criminal conduct.

Second, it is intended to rehabilitate the defendant. Lastly, it affords the aggrieved victim recompense for monetary loss. Pete v. State, 384 Md. 47, 55 , 862 A.2d 419 (2004) (Citations omitted). The “predominant and traditional purpose” of restitution is to “reimburse the victim for certain kinds of expenses ... incurred as a direct result of the defendant’s criminal activity.” Chaney v. State, 397 Md. 460 , 918 A.2d 506 , (2007).

Because restitution statutes are penal in nature, they must be strictly construed. Addison v. State, 191 Md.App. 159, 180 , 990 A.2d 614 (2010) (citing In re John M., 129 Md.App. 165, 185 , 741 A.2d 503 (1999)). ³⁰⁸ Restitution is governed by Title 11, subtitle 6 of the Criminal Procedure Article (“Crim.Proc.”), Md.Code (2001, 2008 Repl.Vol., 2014 Supp.), §§ 11-601 et seq. We focus on three sections in this subtitle. Section 11—601(j) defines a “Victim” as: (1) a person who suffers death, personal injury, or property damage or loss as a direct result of a crime or delinquent act; or (2) if the person is deceased, the personal representative of the estate of the person.

(Emphasis added). Under § ll-603(a): A court may enter a judgment of restitution that orders a defendant or child respondent to make 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: (i) actual medical, dental, hospital, counseling, funeral, or burial expenses or losses; (ii) direct