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Ingram v. State

Court of Appeals of Maryland

November 19, 2018

PHILIP PAUL INGRAM JR.
v.
STATE OF MARYLAND

          Circuit Court for Baltimore County Case No. 03-K-16-001755

          Barbera, C.J., Greene [*] Adkins McDonald Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.

          HARRELL, J.

Ask, and it will be given to you. . . . Matthew 7:7 (King James).
and
Md. Code, Crim. Proc. § 11-603(b)(1). vs.
Even if you don't ask, "sometimes you get what you need." The Rolling Stones, You Can't Always Get What You Want, Let it Bleed album
(Decca Records 1969).
and
Md. Code, Crim. Law § 7-104(g)(1)(i)(2).

         We are called upon here to construe (based on purely secular legal principles) assertedly opposing statutory provisions of the Maryland Code regarding court-ordered restitution in theft cases. Petitioner, Philip Ingram Jr. ("Ingram"), urges us to find that orders of restitution in all criminal cases, including a prosecution for theft under Criminal Law Article, § 7-104 ("§ 7-104"), are governed exclusively by the procedural requirements of Title 11 of the Criminal Procedure Article ("Title 11"). Ingram seeks to overturn a restitution order, stemming from his theft conviction, requiring him to pay his victim the value of the goods he stole, i.e., $18, 964.55. Ingram points out specifically that Title 11 contains a provision (§ 11-603(b)(1)) that obliges the victim or State to request restitution in order to trigger a presumed right to receive restitution, a prerequisite not satisfied in his case. The State retorts that, in theft cases, § 7-104(g)(1)(i)(2) of the Criminal Law Article provides independent authority (indeed, a mandate) for a court to order restitution as part of a sentence for a theft conviction, regardless of a request for that relief. For reasons to be explained, we hold that the restitution requirement in § 7-104(g)(1)(i)(2) authorizes a court in a theft case to award restitution, regardless of whether the State or the victim requests that relief. Thus, we affirm the judgment of the Court of Special Appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ingram was employed by BJ's Wholesale Club ("BJ's") from 1 October 2015 until 17 November 2015 in its Baltimore County store. On multiple instances during his relatively brief tenure at BJ's, Ingram was observed (on store surveillance video) stealing new automobile tires. When confronted ultimately by BJ's Loss Prevention Department, Ingram admitted to the theft. His employment was terminated. He was also arrested by local law enforcement. In all, Ingram stole approximately 120 tires, having a total value of $18, 964.55, as attested by a BJ's representative, Derek Schreck ("Schreck"), its Regional Asset Protection Manager.

         Ingram was charged initially in the District Court of Maryland, sitting in Baltimore County, with two counts, theft and theft scheme of property having a value of at least $10, 000, but less than $100, 000. He declined to provide information to either the police or BJ's regarding the party or parties to whom he transferred the tires.

         In the Circuit Court for Baltimore County, Ingram entered a guilty plea to an amended count of theft of property valued of at least $1, 000, but less than $10, 000. The State agreed to nol pros the theft scheme count. It agreed additionally to "submit on the Defendant's record and victim impact" statement, in exchange for the guilty plea.

         In an on-the-record exchange, defense counsel demonstrated Ingram's understanding of the charge to which he was pleading guilty. Counsel informed Ingram that the charge "carries a maximum penalty of up to 10 years" and that the judge was free to "impose up to 10 years of incarceration." Neither defense counsel, the State, nor the court advised Ingram at that time that his sentence could (or could not) contain also an order to pay restitution. The court accepted Ingram's plea and found him guilty.

         During sentencing, defense counsel noted that Ingram suffered from drug addiction. In view of this, his counsel requested the court to impose a partially-suspended sentence and allow Ingram to participate in a drug treatment program during his incarceration. The State abstained from making a specific sentencing recommendation. Rather, the State submitted Ingram's criminal record, which included misdemeanor theft convictions from 2012 and 2015.

         Schreck testified during sentencing as the victim's representative. He stated that BJ's missed by $21, 331 its budgeted profit plan, for that part of the store's department that included tire sales, and attributed the shortfall to Ingram's theft. Schreck expressed sympathy for Ingram, stating that "I just hope that he learns a lesson and, you know, gets himself treatment." Schreck did not request restitution for the $18, 964.55 described earlier as the value of the tires or the asserted "lost profit" number.

         The court sentenced Ingram to 10 years of incarceration, with all but 18 months suspended in favor of three years of probation. The judge ordered also Ingram to pay to BJ's $18, 964.55 in restitution. Defense counsel remonstrated that there had been no request for restitution. The court explained:

I know this is a large company, but when things like this happen companies go out of business, then all of those other people who work there who need those jobs to pay for their mortgage, to pay for their rent, to pay for the food for their kids don't have those jobs. So it's not a victimless crime because it's a company. I expect restitution in the amount of $18, 964.55.

         Ingram moved for modification of his sentence, renewing his objection to the order of restitution on the ground that neither the State nor the victim requested restitution. The court denied this motion.

         Ingram filed an application for leave to appeal from his guilty plea. He argued that the circuit court erred in ordering restitution because neither the State nor the victim requested such relief. He maintained additionally that the guilty plea was not entered knowingly and voluntarily because he relied assertedly on the prosecutors' alleged oral representation during plea negotiations that restitution would not be sought. The Court of Special Appeals granted Ingram's application for leave to appeal.

         On appeal, Ingram argued that the circuit court was not permitted to order him to pay restitution without a request from the victim or the State, as provided under Title 11, § 11-603(b)(1) of the Criminal Procedure Article of the Maryland Code. The State countered that restitution was proper because restitution was not ordered under Title 11 of the Criminal Procedure Article, but rather under § 7-104(g)(1)(i)(2) of the Criminal Law Article, which mandates restitution in theft cases. In affirming the order of restitution, the Court of Special Appeals concluded, in a per curiam opinion, that the sentencing judge was obliged to order restitution pursuant to § 7-104(g)(1)(i)(2) of the Maryland Criminal Law Article.

          We granted Ingram's petition for writ of certiorari. Ingram advanced for our consideration a bifurcated inquiry, [1] which we reconstruct as three catechisms for analysis:

1. Does § 7-104(g)(1)(i)(2) of the Criminal Law Article provide authority, independent of § 11-603 of the Criminal Procedure Article, for a court to order restitution in a theft case?
2. Is a court's authority to order restitution governed pre-eminently by the restitution provision in the Criminal Procedure Article?
3. Where a defendant is convicted of theft, may a court order the defendant to pay restitution when neither the victim nor the State request it?

         With regard to the first two questions, we hold that Criminal Law Article § 7-104(g)(1)(i)(2) provides independent authority for a court to order restitution in a theft case as a specific "theft exception" to the general restitution provision, § 11-603(b)(1), found in the Criminal Procedure Article. A court's authority to order restitution is governed ordinarily by the general restitution provisions in Title 11 of the Criminal Procedure Article, subject however to the theft exception noted above. As to question three, because § 7-104(g)(1)(i)(2) provides independent authority for a court to order restitution in a theft case, a court may order a defendant convicted of theft to pay restitution as authorized by the penalty provision of that section, regardless of whether the State or the victim requested specifically that relief.

         II. STANDARD OF REVIEW

         We review a trial court's restitution order ordinarily for abuse of discretion. Silver v. State, 420 Md. 415, 427, 23 A.3d 867, 874 (2011). When determining the propriety of a restitution order requires the Court to engage in statutory interpretation, however, the review is conducted without deference to the trial court's action. Harrison-Solomon v. State, 442 Md. 254, 265, 112 A.3d 408, 415 (2015).

         III. RELEVANT ...


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