Chaney v. State
Annotate this Case
Download PDF
Jeffrey Chaney v. State of Maryland, No. 91, September Term 2006 Before a restitution order is granted, Section 11-603 of the Criminal Procedure Article requires that th e victim of th e crime or th e State requ est restitution an d that com petent evidence supporting the amount of the restitution order be presented to the trial court. In this case, because the record demonstrates that no request for restitution was made and no competent evidence was presented to support the amount of restitution, the restitution order m ust be v acated . In the Circuit C ourt for Ba ltimore City Case # 204365003 IN THE COURT OF APPEALS OF MARYLAND No. 91 September Term, 2006 ______________________________________ JEFFREY CHANEY v. STATE OF MARYLAND ______________________________________ Raker Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned), Rodowsky, Lawrence F. (Retired, specially assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: March 14, 2007 Following his conviction by a jury in the Circuit Court for Baltimore City of second degree assault, appellant was sentenced to ten years imprisonment, all but five years of which were suspended in favor of supervised probation for five years. Among the conditio ns attached to the proba tion were th at appellant p ay restitution to the v ictim in the amou nt of $5,00 0 within thirty m onths after h is release from prison and that, upon h is release, he b ecome e ither emplo yed full-time or e nrolled as a f ull-time stude nt. In this appea l, appella nt conte nds tha t those tw o cond itions atta ched to his prob ation are illegal. We shall conclude that neither condition constitutes an illegal sentence for purposes of Maryland Rule 4-345(a), allowing a court to correct an illegal sentence at any time and without reg ard to wa iver. Becau se of proc edural lapse s on appe llant s part, we shall not address h is complaint about the em ployment condition. We shall, however, exercise our discretion under Maryland Rule 8-131(a), address the restitution condition, and order that condition to be stricken on the ground that there was no request for restitution, no evidence to suppo rt the order, and, as a result, imposition of that condition constitu tes plain error. The facts underlying the offenses, which occurred on November 2, 2004, may be quickly su mmar ized, as th ey have b ut tange ntial relev ance to the issue s now before us. The 78-year-old victim, Ernest Shiflett, was standing just outside his garage watching some workmen repair a sewer line adjacent to his home when appellant drove up, spoke briefly with the backhoe operator, the n approa ched Sh iflett, identified h imself as a S tate construction inspector, handed Shiflett a business card, and told Shiflett that there were a lot of violations on the job and that he could shut the job down.1 Shiflett kne w appe llant, having been friends with his father. They engaged in a brief conversation, during which appella nt turne d and a ccused two of the nea rby work men o f not do ing their job pro perly. At that point, Shiflett, believing that appellant was drunk and looking for trouble, asked him sever al times to leav e. Accord ing to Shifle tt, appellant threa tened to tea r [Shiflett] apart with [his] bare hands, whereupon Shiflett procured a baseball bat from his garage, because he was afraid that the younger and heavier appellant would hurt him. There was some dispute as to what occurred next. Shiflett said that appellant initially retreated dow n the drivew ay but then turn ed and ca me back . Shiflett again demand ed that he lea ve, and w hen appe llant threatene d to rip me to pieces, S hiflett drew the bat back but claimed that he did not swing it. Appellant grabbed the bat, threw Shiflett to the g round, hit him in the back of the hea d with the b at, and wa s preparing to hit him aga in when two of th e workm en interven ed. App ellant was a ble to escap e their grasp, get into his car, and flee. A bystander confirmed some of Shiflett s account but said that Shiflett had swung the bat at appellant after instructing him to leave, that he lost his balance , and that app ellant then gra bbed the b at and hit Sh iflett in the head twice with it. The next d ay, appellant ap peared at a police station and claim ed that he had been assaulted by Shiflett, and he testified to that effect at trial. By finding appellant guilty of 1 The card suggested that appellant was a self-employed carpenter, which he later asserted to be the case, rather than a State inspector. Shiflett said that he did not look at the card but simply put it in his pocket. -2- assault, the jury obviously credited Shiflett s version. Because there was no request for any pre-sentence investigation, none was made; the trial ended on a Friday, and sentencing took place the following Monday, June 13, 2005. A lthough M r. Shiflett wa s in court an d orally presente d a victim im pact stateme nt, there was no request for, and no discussion of, restitution. The State informed the court at sentencing that appellant had a criminal history that included convictions for resisting arrest, battery, malicious destruction of property, kidnapping, and a sexual offense. After hearing from M r. Shifle tt and fr om ap pellant, th e court im posed the sen tence n oted. Appellant was presented with, and signed, the probation order and a separate judgment of restitution. He filed this appeal on June 27, 2005. Three days later within the time allowed under Maryland Rule 4-345(e) but after the appeal was filed appellant filed a motion for modification and reduction of sentence in which he com plained specifically about the restitution order. 2 He pointed ou t that there had be en no re quest f or restitu tion and no evid entiary ba sis for th e $5,00 0 awa rd. Appellant made no specific complaint about the employment/student condition, although 2 The mo tion stated tha t it was filed pursuant to Maryland R ule 4-345 (b) to modify or reduce the sentence passed in the above referenced matters . . . . At one time, section (b) of the Rule dealt with a motion for modification filed within 90 days after sentence. In 2004, that provision was moved to section (e), however. Rule 4-345(b) now provides for the court s revisory power over a sentence in case of fraud, mistake, or irregularity, none of which were alleged in the motion. Nor did the motion allege that the restitution order was illegal for purposes of Rule 4-345(a). Given the caption and substantive allegations of the motion, we shall assume that it was, in fact, filed pursuant to section (e). -3- he did allege that he had built a substantial construction business, had several jobs pending, and was prepared to present evidence of his business. He asked that the sentence be reduced or suspended and that the court vacate the order of restitution. On July 14, 2005, the court denied the motion without a hearing. No appeal was taken from that ruling. We granted certiorari with respe ct to the June 27 appea l from the ju dgment, prior to any proceedings in the Court of Special Appeals, to consider whether the two conditions constitute an illegal sentence that may be corrected notwithstanding appellant s f ailure to objec t to them in a tim ely manner in the Circuit C ourt. Waiver The State s principal response to appellant s complaints is that, because appellant made no complaint about the two conditions when they were imposed and, by signing the order of probation, consented to them, he waived his right to complain about the conditio ns on a ppeal. See Maryland Rule 8-131(a). Appellant regards the two conditions as illegal, however, and, quoting from Walczak v. State, 302 Md. 422, 427, 488 A.2d 949, 951 (1985), he urges that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. See also G off v. State, 387 Md. 327, 875 A.2d 132 (2005 ). A criminal sentence m ay be deficient and subject to be ing vacated on ap peal for a -4- variety of reasons. Through its adoption of what is now Maryland Rule 4-345 and through its decisional jurisprudence, this Court has created two categories of deficiency and has trea ted those ca tegories diff erently. Maryland Rule 4-34 5(a) perm its a court to correct an illegal sentence at any time. If a sentence is illegal within the meaning of that section o f the rule, the d efendan t may file a mo tion in the trial co urt to correc t it, notwithstanding that (1) no objection was made when the sentence was imposed, (2) the defe ndant pu rpor ted to consent to it, o r (3) t he se nten ce w as no t cha lleng ed in a tim elyfiled direct appeal. That is the thrust of Walczak, Goff, and a dozen other cases. The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly, and, if the trial court denies relief in response to such a challenge, the defendant may app eal from that den ial and o btain rel ief in an appella te court. The scope of this privilege, allowing collateral and belated attacks on the sentence and excluding waiver as a bar to relief, is narrow, however. We have consistently defined this category of illegal senten ce as limited to those situatio ns in whic h the illegality inheres in the sentence itse lf; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substan tively unla wful. See Eva ns v. State, 389 Md. 456 , 463, 886 A.2d 5 62, 565 (2005); Baker v. State, 389 M d. 127, 133 , 883 A.2d 916, 919 (2005); Randa ll Book C orp. v. State, 316 Md. 315, 321-23, 558 A.2d 715, 718-19 (1989). As we made clear in Randall Book -5- Corp., any other def iciency in the sen tence that m ay be groun ds for an a ppellate cou rt to vacate it impermissible considerations in imposing it, for example -- must ordinarily be raised in or decided by the trial court and presented for appellate review in a timely-filed direct appeal. The sentence may not be attacked belatedly and collaterally through a motion under Rule 4-345(a), and, subject to the appellate court s discretion under Maryland R ule 8-131 (a), the defen dant is not ex cused fro m having to raise a timely objection in the trial court. 3 There is nothing intrinsically illegal about either condition here. Restitution in the amount of $5,000 is permitted as a condition of probation upon a conviction for second degree assault, as is maintaining full-time employment or student status, and appellant does not seem to co ntend otherwise. H is complaint is that those conditions w ere inapprop riate in this case , in large part be cause no evidentiary fou ndation w as laid to support them, but, even if so, that does not make the conditions intrinsically illegal. At best, it would require that this Court, in a timely-filed direct appeal, vacate them, if (1) the complaint about them was preserved for appellate review, or (2) we choose to exercise 3 An unlawful sentence may be challenged in a proceeding under the Maryland Uniform Post Conviction Procedure Act, CP §§ 7-101 through 7-204, but relief in such an action may be denied if the petitioner intelligently and knowingly failed to present the challen ge at trial o r on dire ct appe al. See CP § 7-106(b). Such a sentence may also be challenged through habeas corpus or coram n obis proceedings, but, with exceptions not relevan t here, no appea l lies from the den ial of reli ef in tho se proc eeding s. See CP § 7107(b). Th e full right to se ek appellate relief whe re the nature of the allege d illegality does not f all within the f irst category of illegal sentenc e lies only wh ere the cha llenge is made in th e trial court and on direct ap peal. -6- the discretion we have under Maryland Rule 8-131(a) to consider an issue not raised in or decide d by the tria l court. Not only did appellant make no objection when the trial court announced the two conditions as part of the probation, but, as noted, when presented with the written order of probation and the judgment of restitution, he signed them and thereby facially consented to their terms. It is true that appellant later raised an objection to both conditions in a timely-filed motion to modify the sentence, but he failed to appeal from the denial of that motion. Whethe r an appeal wou ld properly lie from such a ruling is theref ore not before us.4 What w e have be fore us in th is appeal, there fore, is a com plaint neve r presented to the trial court about a sentence, or part of a sentence, that is not illegal within the meaning of Maryland Rule 4-345(a). Ordinarily, and routinely, we would hold the complain t waived a nd refuse to address it. This Court does have discretion under Maryland Rule 8-131(a) to address an issue that was not raised in or decided by the trial court, however. It is a discretion that appellate courts should rarely exercise, as considerations of both fairness and judicial efficiency ordinarily require that all challenges that a party desires to make to a trial 4 Comp are Wilson v. State, 227 Md. 99, 17 5 A.2d 775 (1 961), Biles v. State , 230 Md. 5 37, 187 A.2d 8 50 (19 63), Gleaton v . State, 235 Md. 271, 201 A.2d 353 (1964), and Costello v. S tate, 237 Md. 464, 206 A.2d 812 (1965) with State v. Kanaras, 357 Md. 170, 742 A .2d 508 (1999 ), Herrera v. State, 357 M d. 186, 7 42 A.2 d 517 ( 1999) , Greco v. State, 347 Md. 423, 701 A.2d 419 (1997), and Fuller v. State, supra, Md. , A.2d ( 2007) . -7- court s ruling, action, or conduct be presented in the first instance to the trial court so that (1) a proper record can be made with respect to the challenge, and (2) the other parties and the trial judg e are giv en an o pportu nity to con sider an d respo nd to th e challe nge. In this case, w e shall exerc ise our discre tion to consid er appellan t s challenge to the restitution order, but not to the employment condition. We shall consider the restitution issue because (1 ) it constitutes pla in error, and (2 ) it transcends this case; it is one that m ay affect hun dreds of c ases that flow through o ur criminal a nd juvenile courts and that implicates important Constitutional and statutory rights, and guidance is needed.5 The deficiency in the employment condition alleged here by appellant can be addressed if, upon his release from prison, he is charged with a violation of that condition. Present guidance is not needed with respect to that condition. Restitution Title 11 of the Crimina l Procedure Article (CP ) sets forth the various statutory rights accorded to victims of crime, among w hich are the right to be notified of all court proceedings that affect the interests of the victim (CP § 11-104), the right to attend any such proceeding at which the defendant has a right to appear (CP § 11-102), and the right 5 We also note that an objection was, in fact, made to the restitution order in the motion to modify the sentence, but, because no appeal was taken from the denial of that motion, we cannot address the issue in that context. By regarding the order as plain error and addressing it pursuant to Rule 8-131(a), we avoid the prospect of a belated appeal under the P ost Conv iction Proce dure Ac t, which serv es no one s interest. -8- to request restitution (CP § 11-603). In order to implement those rights, law enforcement officers, jud icial officials, an d prosecu tors are requ ired to deliver to victims or th eir representatives notification request forms and pamphlets describing the rights possessed by victim s and se rvices a vailable to them . See CP, §§ 11-10 4 and 11-914(9 ) and (10). Restitution is provided for in CP § 11-603. As relevant here, § 11-603(a) allows a court to enter a judgment of restitution if as a direct result of the crime, the victim (2) suffered: (i) actual medical, dental, hospital, counseling, funeral, or burial expenses or losses; (ii) direct o ut-of-poc ket loss; (iii) loss of earnings; o r (iv) expen ses incurred with rehabili tation o r (3) incu rred me dical ex penses that we re paid b y a gover nmen tal unit. Section 11-603(b) provides that a victim is presumed to have a right to restitution under subsection (a) of this section if: (1) the victim or the State requests restitution; and (2) the court is prese nted with c ompeten t evidence o f any item listed in subsection (a) of this section . There appears to be some facial ambiguity in these two subsections. Subsection (a) purports to permit the co urt to order re stitution for the enumera ted expen ses, even in the absence of (1) a request for restitution by the State or the victim, and (2) any evidence to support a n award . The spec ific requirem ent of a req uest and su pporting ev idence is found in subsection (b) in the context of a presumption of entitlement. Arguably, the statute might be read as allowing a court, under subsection (a), to order restitution without any request for it and without any evidence to support it so long as it is not applying the -9- presump tion stated in su bsection (b ). In that regard , the statute is, at be st, inartfully drawn. We are unwilling to read subsection (a) in such an unrestrained manner, because to do so would not only raise serious due process issues but also contravene the rule of lenity that is ordinarily applied when a penal statute is ambiguous. An order of restitution entered in a criminal case, even when attached as a conditio n of pr obation , is a crim inal san ction p art of th e punis hmen t for the crime. Goff v. State , 387 M d. 327, 338 -40, 875 A .2d 132, 13 9-40 (200 5); Williams v . State, 385 Md. 50 , 58-59, 867 A.2d 30 5, 310 (20 05); Grey v. Allstate Insurance Company, 363 Md. 445, 451, 769 A.2d 891, 895 (2001). Although, as we pointed out in Grey, it has a therapeutic and rehabilitative function with respect to the defendant, its predominant and traditional purpose is to reimburse the victim for certain kinds of expenses that he or she incurred as a direct result o f the defe ndant s crim inal activity. It is not a jud icially impos ed gift to the victim , but reim bursem ent that th e defe ndant, p ersona lly, must pa y. Because restitution is part of a criminal sentence, as a matter of both Constitutional due process and Maryland criminal procedure, such an order may not be entered unless (1) the defendant is given reasonable notice that restitution is being sought and the amount that is being requested, (2) the defendant is given a fair opportunity to defend against the re quest, and (3 ) there is suff icient admis sible eviden ce to supp ort the reque st evidence of the amount of a loss or expense incurred for which restitution is allowed and evidence that such loss or expense was a direct result of the defendant s criminal -10- behav ior. See People v. Valdez, 928 P.2d 1387, 13 92-93 (C olo. App . 1996); Gilmore v. State, 668 So.2 d 1092 (F la. App. 19 96); Gilileo v. State , 923 So.2d 612, 614 (Fla. App. 2006); Hamp ton v. State, 141 P.3d 101, 10 5 (Wyo. 2006). 6 This is n ot an on erous b urden; indeed , it should be a rela tively simp le one. Victims are required to be notified , and pres uma bly are notified, of their rights under the law, including, in an appropriate case, the right to request restitution. They are advised that they may requ est restitution dire ctly or may ask the prosecuto r to request it on their behalf. They are reminded to keep bills and statements for expenses they incur so that they can be presented to the court. If a victim requests restitution, CP § 11-603(b) creates a presu mption that he o r she is en titled to it, provided that the cou rt is presented with competent evidence of the items for which restitution is sought. CP § 11-615 relaxes both the evidentiary burden and the hearsay rule with respect to restitution requests by making written statements or bills for medical, dental, hospital, counseling, funeral, and burial expenses admissible and legally sufficient evidence of the amount, fairness, and reasonableness of the charges and the necessity of the services or material provided. That section also places on a defendant who challenges the fairness or reasonableness of the charges or the necessity of the service the burden of proving that the amount is not fair or 6 Defendants have a right under Maryland Rule 4-342(f) to allocute, which includes the right to present information in mitigation of punishment. As a practical matter, we do not see how it w ould be po ssible for a d efendan t to exercise th at right, with respect to restitution, if, at the time of allocution, the defendant is unaware that restitution is being sou ght or of the amount th at is being so ught. -11- reasonable. The record contains a certification by the State s Attorney for Baltimore City that the victim notification form and pamphlet required by what is now CP § 11-104 were sent to the victim. Mr. Shiflett signed and returned the notification form, which contained a request for notice of all events related to this case and to the defendant/juvenile, as allowe d by law , and a dema nd for all the rig hts to w hich vic tims of crime a re entitled . 7 He was therefore aware of his right to seek restitution or to have the prosecutor seek it for 7 The notification form contained in the record appears to be a five-copy form, one copy each for the court clerk, the State s Attorney, the detention center or State Division of Correction, and the Division of Parole and Probation. The fifth copy is for the victim, and it appears that the instructions are on the back of that copy. As only the first copy, for the clerk, is in the record and would likely be placed in the court file, the record does not and, under current practice, ordinarily would not reveal the instructions and information actually given to the victim. Although it would be helpful if the instructions and informatio n were, in s ome w ay, placed in the record so th at, if any dispute o r uncertainty should arise, the court will have direct evidence of the advice given to the victim, the gap, at least in this instance, may be filled by judicial notice. CP § 11-104(c) requires the prosecutor to send the notification request form described in CP § 11-914(10) and the pamphlet described in § 11-914(9). Sections 11-914(9) and (10) require that those forms be developed by the State Board of Victim Services, a unit in the Governor s Office of Crime Control and Prevention. Because the forms mandated by law to be sent are in the nature of official documents prepared by a State agency and are readily available to the public and to the Court, we may fairly take judicial notice of them. The information included on the reverse side of the notification request form sent to the victim contains a statement th at the victim h as the lega l right to req uest restitution. The pam phlet is even mo re explicit. It states th at the victim h as the right to re quest paym ent of certain crime-related costs from the defendant if the defendant is found or pleads guilty, and advises that the victim can receive money to help pay for crime-related costs by asking the State s Attorney to seek restitution from the court, saving receipts or copies of bills, and including a requ est for restitution in a victim impact statemen t. We may therefore properly conclude that Mr. Shiflett had been informed that he had a right to seek restitution in conformance with CP § 11-603. -12- him. Mr. Shiflett was prese nt in court at sentencing, and, inde ed, he informed the court of the injuries he had suffered and their continuing impact a deep wound to the top of his head tha t required stitch es, a concu ssion, daily sever e headac hes, and blu rred vision in one eye. Although medical and hospital records pertaining to his treatment after the attack were in evidence, none of them indicated what, if anything, either he or any governm ental agenc y paid for that trea tment. Oth er than the g eneral de mand f or all the righ ts to wh ich victim s of crim e are en titled in the requ est for n otificatio n form , neither Mr. Shiflett nor the prosecutor made any written or oral request for restitution, and neither of them presented any evidence of any expense or out-of-pocket loss incurred by Shiflett or by an y governm ental agenc y on his beha lf. There w as no discu ssion at all regarding restitution until the court, in announcing sentence, stated that it would be a condition of appellant s probation. It thus seems apparent, at least from the record, that the order that appellant pay $5,000 in restitution as a condition of his probation was pulled entirely out of thin air. It had no evidentiary basis and appellant was never given the opportunity, prior to its entry, to contest or defend against it. It is for that reason that the order was entered erroneously and must be vacated. ORDER OF THE CIRCUIT COURT FOR BALTIMORE CITY THAT APPELLANT PAY RESTITUTION IN THE -13- AMOUNT OF $5,000 AS A CONDITION OF PROBATION VACATED; JUDGMENT OTHERWISE AFFIRMED; COST S TO B E PAID BY M AYO R AND CITY C OUN CIL OF BALTIMORE. -14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
