Pete v. State

HARRELL, Judge. We issued a writ of certiorari in this case to explore again the bounds of § 6-221 of the Maryland Criminal Procedure Article of the Maryland Code, which allows a sentencing court discretion to suspend a defendant’s sentence and order probation on “the conditions that the court considers proper.” Md.Code (2001), § 6-221. 1 Our exploration leads us to conclude that the restitution ordered in this case was an illegal sentence and not properly imposed as a condition of probation. Scott Alan Pete was convicted, after a bench trial in the Circuit Court for Dorchester County, of second degree assault and reckless driving, among other charges included in Case No. 11332. 2 He was sentenced to eighteen months imprisonment for the assault, with all but two months suspended in ⁵⁰ favor of three years probation upon his release. He also was fined $250 for the reckless driving conviction.

As one of the conditions of probation, Pete was ordered to make restitution in the amount of $355.06 to the victim of the assault and $6,490.53 to the Local Government Insurance Trust (LGIT) for repairs to Patrolman Michael Cheesman’s police cruiser, which was damaged in the incident underlying the reckless driving conviction. Pete appealed to the Court of Special Appeals, challenging, among other things, the Circuit Court’s restitution order. The intermediate appellate court, in an unreported opinion, affirmed the trial court’s judgment. We granted Pete’s petition for writ of certiorari, 381 Md. 324 , 849 A.2d 473 (2004), to consider the following questions: 1.

Did the trial court have authority to order, as a condition of probation for assault, restitution for damages directly resulting from an unrelated act of reckless driving — an offense other than the conviction on which the court suspended sentence and imposed probation? 2. Where a court orders restitution for damages resulting from the commission of a non-jailable offense, may the court order the restitution paid as a condition of probation for an unrelated offence which carries a maximum prison sentence of ten years’ imprisonment? We conclude that the trial court’s restitution order with regard to LGIT, as a condition of probation, is an illegal sentence. This is so because restitution to the LGIT was unavailable, as a matter of law, as a sentencing option for either the second degree assault or reckless driving convictions in this case. 3 We shall vacate that portion of the restitution order, and the parallel condition of probation for the second degree assault conviction, requiring payment of $6,490.53 to the LGIT. ⁵¹ I. A. On 23 April 2002 Pete entered the Cambridge apartment of Susan Raickle and, during an argument, hit Ms. Raickle on the back of the head. 4 Ms. Raickle called the police after Pete left the apartment and Officer Gilbert McCall responded to the police call at 3:59 p.m.

After a brief investigation, the police broadcast a lookout for Pete, alerting that, among other things, he may have a gun. 5 At 4:45 p.m. Patrolman First Class Michael Cheesman, while in his marked police car, heard a radio dispatch to be on the lookout for Pete and that he likely would be driving a late model, tan Ford pickup truck. At approximately 5:45 p.m., Patrolman Cheesman saw a man, resembling the broadcast description of Pete, in a truck (also matching the given description) stopped at a traffic light at the comer of Cedar Street and Academy Street in Cambridge. After driving past the person in the truck to confirm the apparent identification, Patrolman Cheesman turned his vehicle around and activated his overhead lights in an attempt to effectuate a traffic stop.

Pete turned onto Hughlett Street after the police vehicle closed to within approximately twenty feet of the truck. Patrolman Cheesman testified that Pete drove the truck away from his police cruiser at a “very fast rate,” characterizing his speed as “well above 20 — a lot of dust was thrown up off the roadway.” He later testified on cross-examination that, in his opinion, Pete “was trying to get away from [him].” Neither Pete nor his passenger acknowledged seeing Patrolman Cheesman in pursuit with the cruiser’s overhead lights activated. ⁵² As Pete approached Washington Street on Hughlett Street, he stopped abruptly, slamming on his brakes, five feet beyond the intersection’s stop line. Patrolman Cheesman testified that the truck’s “front end went down[,] [t]he back end went up” when this stop took place. The police cruiser struck the rear of the truck, resulting in $6,490.58 in damage to the cruiser.

Pete left the accident scene, headed towards Maryland Route 50. 6 B. At Pete’s sentencing on 22 August 2002, the trial judge stated: So, in Case No. 11382 the Court sentences you to 18 months to the Dorchester County Detention Center, and I’m going to suspend the last six months of that sentence. Now, that’s on — only on Count 1, the second-degree assault upon Susan Raickle. And you’ll be on probation for a period of 3 years, subject to the standard conditions of probation, the special conditions of probation, the special conditions that you avoid contact with Susan Raickle and that you pay any fines ordered in this case, that is, Case No. 11332 and that you make restitution within 3 years in the amount of $6,845.59, and of that total $355.06 would be to Dorchester General Hospital, and $6,490.53 would be to the Local Government Insurance Trust. Now, as to the next count, reckless driving, the Court imposes a fine of $250.

As to attempting to elude police in an official police vehicle by failing to stop, the court imposes a sentence of 4 months to the Dorchester County Detention Center. That will be consecutive to the sentence imposed on Count 1. And on count, failure to stop vehicle at the scene of accident involving bodily injury, the Court sentences you to 6 months to the Dorchester County Detention Center and that’ll be consecutive to the 4 months on at ⁵³ tempting to elude police in an official police vehicle by failing to stand and also ... [by] failing to stop, and also consecutive to the 18-month sentence on Count 1, that is, second-degree assault upon Susan Raiekle, 16 months of which were suspended. On the tenth count, failure to return and — return to and remain at the scene of accident involving attended vehicle, the Court sentences you to 6 months to the Dorchester County Detention Center, and that’ll be concurrent to other sentences imposed in Case No. 11332.

So — that’s a total to serve of 12 months.[ 7 ] The Court’s order for probation, also signed on 22 August 2002, ordered three years of probation for the second degree assault on Ms. Raiekle. The probation order listed several conditions for Pete’s supervised probation, including that he pay $355.06 to the Dorchester General Hospital for Ms. Raiek-le’s hospital visit and $6,490.53 to the LGIT. 8 The probation order also included conditions attributable to specific counts: a $250 fine on the reckless driving conviction, and imprisonment for convictions under Counts 8, 9, and 10. Lastly, the ⁵⁴ order stated that he must pay his fíne and the ordered restitution within three years. In its unreported opinion the Court of Special Appeals addressed Pete’s argument that the restitution order constituted error because the $6,490.53 to be paid to the LGIT had no nexus to the assault crime underlying the probation order.

The intermediate appellate court observed that restitution is generally available as part of a sentence for a criminal conviction under § 11-603 or as a condition of probation under § 6-221. Contrary to Pete’s assertion that restitution to a victim should be available only when the injury is a direct result of the criminal conviction from which it flows, the Court of Special Appeals held that restitution was available as a condition of probation for “related criminal conduct for which criminal liability has been adjudicated.” II. A. At the outset, we examine the probation order to determine its terms and conditions. Probation was ordered relative to Pete’s second degree assault conviction.

He received probation for three years with explicit conditions that required completion within that period — conditions that, if left uncompleted, would result in him serving the suspended sixteen months of his sentence for the second degree assault conviction. He first had to complete his effective total of twelve months incarceration under Case No. 11332 — two months for the second degree assault, four months for Count 8 and six months for Count 9, consecutive to the assault sentence, and six months for Count 10, concurrent to the assault and Counts 8 and 9. He also had to pay a fine of $250.00 as punishment for his reckless driving conviction. More important to this case, he had to make restitution of $6,490.53 to the LGIT.

This requirement was included without a specific reference to the reckless driving count. ⁵⁵ B. Restitution under Maryland’s Criminal Procedure Article is “a criminal sanction, not a civil remedy.” Grey v. Allstate Ins. Co., 363 Md. 445, 451 , 769 A.2d 891, 895 (2001) (emphasis in original). 9 It serves at least three distinct purposes. First, it “is a form of punishment for criminal conduct.” Songer v. State, 327 Md. 42, 46 , 607 A.2d 557, 559 (1992). Second, it is intended to rehabilitate the defendant.

Anne Arundel County v. Hartford Accident and Indem. Co., 329 Md. 677, 685 , 621 A.2d 427, 431 (1993) (citing Lee v. State, 307 Md. 74, 78 , 512 A.2d 372, 374 (1986)). Lastly, it affords “the aggrieved victim recompense for monetary loss.” Id. (quoting Lee v. State, 307 Md. 74, 78 , 512 A.2d 372, 374 (1986)).

In Maryland, restitution may be ordered, with qualifications, as a direct sentence for a crime or delinquent act, in addition to any other penalty prescribed by the underlying sentencing or remedial statute. § ll-603(a). Sentencing courts also may order restitution under the broader powers of probation after 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.” § 6-221. We previously commended the use of restitution as a condition of probation: “[a] court which orders restitution does a certain solomonic justice for the aggrieved victim who is entitled to requittal of that unlawfully taken or reparation for injury criminally inflicted; thus, restitution as a probationary tool has an understandable appeal.” Coles v. State, 290 Md. 296, 305 , 429 A.2d 1029, 1033 (1981). Yet, the broad power to order conditions of probation under § 6-221 is not boundless.

See, e.g., Bailey v. State, 355 Md. 287, 299 , 734 A.2d 684, 690 (1999) (holding that home detention as a condi ⁵⁶ tion of probation under § 641A of Article 27 10 is improper without explicit statutory authorization); Sheppard v. State, 344 Md. 143, 154 , 685 A.2d 1176, 1181 (1996) (holding improper a probation order under § 641A of Article 27 forbidding a defendant from driving, even if the Maryland Transit Authority, which had specific regulatory power over driver’s license suspensions under the Transportation Article, gives the defendant a license); Walczak v. State, 302 Md. 422, 433 , 488 A.2d 949, 954 (1985) (holding that probation order under § 641A of Article 27 was an illegal sentence when it ordered restitution to be paid by a defendant to a victim of an alleged crime for which the defendant was not convicted). If a sentencing court exercises its discretion under § 6-221, it may grant probation regardless of whether the defendant was convicted of a crime “punishable by fine or imprisonment or both.” § 6-225(b). We determine that restitution to the LGIT in this case was unavailable under § 11-603 for the reckless driving charge, the State’s contention to the contrary notwithstanding. Even though the damage to Patrolman Cheesman’s police cruiser, on these facts, was undoubtedly a direct result of the reckless driving, reckless driving is not a “crime” for which restitution may be ordered.

Under § 11-603, restitution may be ordered to a victim “as a direct result of the crime.... ” § ll-603(a)(l). 11 A crime includes “a violation of the Transportation Article that is punishable by a term of confinement.” § ll-601(d)(2). Any person convicted of reckless driving under § 21-901.1 is guilty of a misdemeanor and only “subject to ⁵⁷ a fine of not more than $1,000.” Md.Code (1977, 2002 Repl. Vol.), § 21-101(g) of the Transportation Article. 12 Here, Pete received a $250 fine and was not eligible for punishment “by a term of confinement” for his reckless driving conviction under § 21-901.1 of the Transportation Article; therefore, restitution was not available to the sentencing court as a direct sentence. 13 We also conclude, upon further analysis, that restitution to the LGIT as part of a sentence for the second degree assault conviction was inappropriate under § 11-608 because the damage to Patrolman Cheesman’s cruiser did not arise as a “direct result” of the second degree assault on Ms. Raickle. The term “direct result of the crime” appeared first in the Restitution for Crimes Act of 1977.1977 Md. Laws, Chap. 581 (H.B.1680); Md.Code (1957, 1976 Repl.VoL, 1977 Cum.Supp.), Art. 27 § 640(b).

We recently observed, in determining whether daytime housebreaking, after it was abolished as a crime, nonetheless remained a “crime of violence” for purposes of sentencing for an illegal possession of a firearm conviction, that: The chief goal of statutory interpretation is to discover the actual intent of the legislature in enacting the statute, and the legion of cases that support this proposition need not be repeated here. In fact, all statutory interpretation begins, and usually ends, with the statutory text itself for the legislative intent of a statute primarily reveals itself through the statute’s very words. A court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application. In short, if the words of a statute clearly and unambiguously delineate the ⁵⁸ legislative intent, ours is an ephemeral enterprise.

We need investigate no further but simply apply the statute as it reads. In some cases, the statutory text reveals ambiguity, and then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal. However, before judges may look to other sources for interpretation, first there must exist an ambiguity within the statute, i.e., two or more reasonable alternative interpretations of the statute. Where the statutory language is free from such ambiguity, courts will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete words from the statute.

Only when faced with ambiguity will courts consider both the literal or usual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment. As our predecessors noted, “We cannot assume authority to read into the Act what the Legislature apparently deliberately left out. Judicial construction should only be resorted to when an ambiguity exists.” Therefore, the strongly preferred norm of statutory interpretation is to effectuate the plain language of the statutory text.... Pnce v. State, 378 Md. 378, 387-88, 835 A.2d 1221, 1226 (2003) (citations omitted). 14 This is not the first time we have interpreted the restitution statute.

In Grey , we resolved whether a restitution order was ⁵⁹ a civil judgment sufficient to allow the intended recipient victims of a vehicular manslaughter crime to attach the proceeds of the defendant’s automobile insurance policy. 363 Md. at 449-50 , 769 A.2d at 894 . In concluding that restitution by itself was insufficient to allow the victims to attach the defendant’s insurance proceeds based on civil liability for the accident, we explained, “[a]n order of restitution entered under § 807 [currently § 11-603] establishes, at most, two things: (1) that the defendant was guilty of a crime; and (2) that, as a direct result of that crime, the persons or entities to whom the restitution is ultimately payable suffered losses (i) of a kind enumerated in the statute and (ii) at least in the amount stated in the restitution order.” Id. at 465-66, 769 A.2d at 903 . Pete alleges that the “direct result of the crime” of second degree assault on Ms. Raickle may not include as victims either Patrolman Cheesman or the LGIT because they were not victims of the assault. Section 11-603, he urges, compels that conclusion by stating plainly that restitution may be ordered as “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 .... ” Furthermore, he asks us to read the statute’s plain language and determine that a direct result of a crime is limited to the victim of the qualifying crime and that victim’s injuries and/or damages arising from that crime.

In the alternative, he asks that we apply tort proximate cause analysis. Under this analysis, the intervening event of the reckless driving incident occurring approximately two hours after the assault would break the chain of causation between the assault and the motor vehicle collision between Pete’s truck and Patrolman Cheesman’s cruiser. The State believes that these assertions, if accepted, would limit too much the scope of § 11-603. It urges us, like the reasoning employed by the intermediate appellate court in this case, to adopt a broader reading of § 11-603 by interpreting the pretextual sentence in paragraph (a) in light of the narrower language of subparagraph (a)(1): “[a] court may enter a ⁶⁰ judgment of restitution ... in addition to any other penalty for the commission of a crime or delinquent act....” § 11-603(a) (emphasis added).

As the State sees it, if it can obtain a conviction for a crime where restitution may be had, but is not ordered, and another conviction of a related crime, then restitution may be ordered to the appropriate victims as an appropriate sentence under the related crime. Such a reading would require solely “a nexus between the defendant’s criminal activity and the losses that form the basis for an order of restitution.” This nexus is justified by the Court of Special Appeals in its opinion in the present case as allowing restitution orders if the orders are “related to losses that were caused by conduct for which [Pete] had been convicted.” The State also described its nexus theory as the “Single Charging Document” Doctrine. Under this “doctrine,” any count for which a defendant is convicted under the same charging document would be sufficient to satisfy the statutory “direct result” test. The standards governing restitution as a direct penalty for the second degree assault conviction in this case require a particular type of crime, a victim, and damages as a direct result of the crime.

We need not engage in a tort causal relationship analysis, 15 nor weigh the persuasion quotient of an ⁶¹ attenuated nexus between the damages to Patrolman Chees-man’s police cruiser and the assault on Ms. Raickle. The General Assembly has required a direct result between the qualifying crime committed and the damages inflicted before restitution may be ordered. Any attempt by a court to craft a proximate causation, mere nexus, or single charging document substitute would be clearly contrary to the plainly-worded intent of § 11-603. In this case, the collision with, and resultant damage, to Patrolman Cheesman’s cruiser are a direct result of Pete’s reckless driving, not his assault on Ms. Raickle.

The damage to the cruiser is a direct result of Pete stopping abruptly, from a relatively high rate of speed, in the path of the cruiser. Reckless driving, by definition, is driving with a “wanton or willful disregard for the safety of persons or property.” § 21-901.1 of the Transportation Article. In this case, Pete’s wanton or willful disregard was for the safety of Patrolman Cheesman,