                                              Philip Paul Ingram, Jr., v. State of Maryland,
                                              No. 4, September Term 2018. Opinion by
                                              Harrell, J.

CRIMINAL LAW – THEFT – RESTITUITION
Section 7-104(g)(1)(i)(2) of the Md. Code’s Criminal Law Article, which requires
restitution in a theft case, provides a court authority to order such, independent of the
presence or absence of a request for same from the State or victim. This section creates a
“theft exception” to the restitution provision found in the Md. Code’s Criminal Procedure
Article, § 11-603(b)(1), requiring a request from the State or the victim generally.

CRIMINAL PROCEDURE – THEFT – RESTITUTION
The general restitution provisions found in the Criminal Procedure Article, § 11-603(b)(1),
govern ordinarily court-ordered restitution. This provision grants discretion to order
restitution generally, provided the State or victim requests it. An exception to this
provision exists for defendants convicted of theft under Criminal Law Article § 7-104,
which requires restitution in theft cases, regardless of whether the State or victim requests
it.
Circuit Court for Baltimore County
Case No. 03-K-16-001755
Argued: September 12, 2018



                                                                                          IN THE COURT OF APPEALS
                                                                                               OF MARYLAND

                                                                                                       No. 4

                                                                                            SEPTEMBER TERM, 2018



                                                                                           PHILIP PAUL INGRAM JR.

                                                                                                         v.

                                                                                             STATE OF MARYLAND



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

                                                                                                       JJ.


                                                                                               Opinion by Harrell, J.


                                                                                         Filed: November 19, 2018
                                                                                  *Adkins, J., now retired, participated in the
 Pursuant to Maryland Uniform Electronic Legal
Materials Act
                                                                                  hearing and conference of this case while an
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
                                                                                  active member of this Court; after being recalled
                               2018-11-19 10:17-05:00                             Pursuant to the MD. Constitution, Article IV,
                                                                                  Section 3A, she also participated in the decision
                                                                                  and adoption of this opinion.
Suzanne C. Johnson, Acting Clerk
                          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.




                                             2
       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:

                                                3
       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.



                                              4
         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.




1
    Ingram framed the questions as follows:
         1. Does § 7-104 of the Criminal Law Article provide independent authority for a
            court to order restitution in a theft case, or, alternatively, is a court’s authority to
            order restitution governed by the restitution provisions in Title 11 of the
            Criminal Procedure Article?
         2. Where a defendant is convicted of theft, may a court order the defendant to pay
            restitution when neither the victim nor the State has requested it?
                                                  5
                              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 STATUTORY PROVISIONS

       As noted earlier, Ingram plead guilty to theft of property having a value of at least

$1,000, but less than $10,000, in violation of Criminal Law Article § 7-104. That section

reads, in relevant part:

       (a) Unauthorized control over property. -- A person may not willfully or
       knowingly obtain or exert unauthorized control over property, if the person:
           (1) intends to deprive the owner of the property;
           (2) willfully or knowingly uses, conceals, or abandons the property in
           a manner that deprives the owner of the property; or
           (3) uses, conceals, or abandons the property knowing the use,
           concealment, or abandonment probably will deprive the owner of the
           property.
       …

       (g) Penalty. --
       (1) A person convicted of theft of property or services with a value of:
            (i) at least $ 1,[000] but less than $ [10,000]2 is guilty of a felony and:
                 1. is subject to imprisonment not exceeding 5 years or a fine not
                 exceeding $ 10,000 or both; and

2
   Section 2, ch. 515, Acts 2016, effective October 1, 2017, substituted “$1,500” for
“$1,000” and “$25,000” for “$10,000.” MD. CODE, CRIM. LAW § 7-104. This substitution
was not in effect when Ingram pleaded guilty, so we refer to the version of § 7-104 under
which he was charged. The remaining relevant portions of § 7-104 were unaffected by the
2016 change.
                                              6
                 2. shall restore the property taken to the owner or pay the owner
                 the value of the property or services. . . .


MD. CODE, CRIM. LAW § 7-104 (emphasis added).

       Ingram argues that § 7-104(g)(1)(i)(2) cannot be read harmoniously with the general

restitution provision in Title 11, § 11-603(b)(1). Section 11-603 of that Title states, in

relevant part:

       (a) Conditions for judgment of restitution. -- A court may enter a judgment
       of 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:
            …
                 (ii) direct out-of-pocket loss

       (b) Right of victims to restitution. -- 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 presented with competent evidence of any item listed in
            subsection (a) of this section.


MD. CODE, CRIM. PROC. § 11-603 (emphasis added). In addition, § 11-619 of the Crim.

Proc. Article states:

   (a) Operation of subtitle in general. -- Subject to subsection (b) of this section,
       any order of restitution made by a court shall be governed by the provisions
       of this subtitle.
   (b) Subtitle not construed to limit authority of court. -- This subtitle may not be
       construed to limit the authority of a court to direct a defendant . . . to make
       restitution or to perform certain services, as specified by the court, for the
       victim as an alternative means of restitution.

MD. CODE, CRIM. PROC. § 11-619 (2018).


                                               7
                       III. STATUTORY INTERPRETATION

      Our inquiry in the matter of this statutory interpretation begins with recalling that:

      The cardinal rule of statutory construction is to ascertain and effectuate the
      General Assembly’s intent. “[O]ur primary goal is always to discern the
      legislative purpose, the ends to be accomplished, or the evils to be remedied
      by a particular provision, be it statutory, constitutional or part of the Rules.”
      The starting point of any statutory analysis is the plain language of the statute,
      viewed in the “context of the statutory scheme to which it belongs.” We
      presume, moreover, that the General Assembly “intends its enactments to
      operate together as a consistent and harmonious body of law, and, thus, we
      seek to reconcile and harmonize the parts of a statute, to the extent possible
      consistent with the statute’s object and scope.” We do that “by first looking
      to the normal, plain meaning of the language of the statute, reading the statute
      as a whole to ensure that no word, clause, sentence or phrase is rendered
      surplusage, superfluous, meaningless or nugatory.”

      It is also settled that when a statute’s language is “clear and unambiguous,
      we need not look beyond the statute’s provisions and our analysis ends.” Yet,
      it is equally “well settled that the purpose of the plain meaning rule is to
      ascertain and carry out the real legislative intent.” We have emphasized that
      “[w]hat we are engaged in is the divination of legislative purpose or goal. . .
      . the plain-meaning rule is not a complete, all-sufficient rule for ascertaining
      a legislative intention. The meaning of the plainest language is controlled by
      the context in which it appears.” To that end, “we may find useful the context
      of a statute, the overall statutory scheme, and archival legislative history of
      relevant enactments.”


Kranz v. State, 459 Md. 456, 474-75, 187 A.3d 66, 76-77 (2018) (internal citations

omitted).



   A. Plain Meaning.

      The first encounter in the statutory interpretation gauntlet is the “plain meaning

rule.” If statutory language is clear and unambiguous, the examining court is not obliged

to look ordinarily beyond the statutes in question. Opert v. Criminal Injuries Comp. Bd.,

                                              8
403 Md. 587, 593, 943 A.2d 1229, 1232 (2008). The meaning of the plainest language is

controlled, however, by the context in which it appears. Kaczorowski v. Baltimore, 309

Md. 505, 514, 525 A.2d 628, 632 (1987).

         The language of § 11-603(b)(1), read in isolation, is not ambiguous, nor is the

language of § 7-104(g)(1)(i)(2) when considered similarly. Title 11 supplies a general

statutory scheme which governs seemingly any order of restitution in criminal and juvenile

cases.    Section 7-104 contains, however, a specific restitution provision mandating

seemingly restitution for any theft crime. When read in conjunction, there seems to be, at

first blush, conflict between the two statutory schemes. Title 11, according to § 11-619,

applies to “any order of restitution made by a court,” but it “may not be construed to limit

the authority of a court to direct a defendant . . . to make restitution.” To determine whether

there can be a harmonious reading of § 11-603(b)(1) and § 7-104(g)(1)(i)(2), we embark

on this quest to divine the intent of the Legislature in maintaining those provisions “on the

books.”



   B. Divining Legislative Intent.

         As noted earlier, our goal in statutory construction analysis is to discern and carry

out the intent of the Legislature. Blue v. Prince George’s Cty., 434 Md. 681, 689, 76 A.3d

1129, 1133 (2013). Legislation, for the most part, has an objective, goal, or purpose. It

seeks to remedy some evil, advance some interest, or attain some end. Kaczorowski v.

Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). Identifying the particular

purpose, goal, or objective may be found in a variety of places: the language of the statute

                                               9
or statutes in question; their bills’ titles, preambles, or amendments; their bills’ relationship

to earlier and subsequent legislation; legislative history; and “other material that fairly

bears on the fundamental issue of legislative purpose.” Id. at 515, A.2d 632.

       Ingram argues that the Legislature “clearly and unmistakably evinced an intent that

all orders of restitution be governed by CP Title 11.” The Legislature’s intent, as diagnosed

by Ingram, is clear because § 11-619(a) states: “[s]ubject to subsection (b) of this section,

any order of restitution made by a court shall be governed by the provisions of this

Subtitle.” Section 11-619, in subsection (b), continues, however: “[t]his Subtitle may not

be construed to limit the authority of a court to direct a defendant or a child found to have

committed a delinquent act to make restitution or to perform certain services as specified

by the court, for the victim as an alternative means of restitution.”

       Ingram directs next the spotlight on former Senator John Giannetti, one of the co-

sponsors of Senate Bill 428 in the 2003 Regular Session of the Legislature, when he stated

then that provisions were being added to Title 11, Subtitle 6, to clarify generally that

restitution falls under that title. Senator Giannetti continued that his bill was intended to

clarify that Subtitle 11 may not limit the authority of a court to direct a defendant or child

to make restitution by performing certain services.3 Ingram concludes from this that,

because the Legislature included alternative means of restitution in the bill, it could have

recognized explicitly an exception for theft cases if it intended there to be such an

exception.


3
  To illustrate this point, Senator Giannetti used the example of requiring a vandal who
cannot afford to pay monetary restitution to mow the lawn of the victim.
                                               10
       Ingram turns a jaundiced eye on the “legislative history” of § 7-104, which he

regards as murky, at best. The restitution provision in that section is traceable to 1809.

Accordingly, there is scant evidence of what the Legislature intended when it enacted that

law originally because no records regarding the enactment exist from that time. The only

reasonable inference, according to Ingram, is that the Legislature intended thereby merely

to authorize restitution, in the discretion of a court, when a defendant commits theft, rather

than to compel it.

       Ingram relies also on Chaney v. State, 397 Md. 460, 918 A.2d 506 (2007). Chaney

involved an altercation culminating in conviction of the defendant for second-degree

assault, with restitution as a condition attached to the probation portion of his sentence. Id.

at 462-63, A.2d 507. Neither the victim (in his victim-impact statement) nor the State

requested the restitution ordered by the trial court. We found, pursuant to the requirements

in Title 11, that the restitution order lacked an evidentiary basis, the defendant was given

no opportunity to contest or defend against the restitution order, and, thus, it was ordered

erroneously. Id. at 473, A.2d 513. We vacated the order. Id., A.2d 514.

       Chaney is distinguishable materially from the present case. The main reason is that

Chaney did not involve a theft conviction, where the defendant was required to restore the

stolen goods or their value. Rather, Chaney involved medical expenses, in an unproven

amount. We found no basis for the amount of the restitution order and noted that it was

pulled “entirely out of thin air.” Id. In the present case, a specific substantive criminal law

statute, to which Ingram plead guilty, § 7-104, requires restitution in theft cases. To state

the obvious, assault and theft are different crimes. Chaney, after being convicted of assault

                                              11
(not theft), was ordered to pay restitution, which we rejected for stated reasons that are not

germane to the scope of our analysis in the present case.

       It is obvious that the Legislature intended Title 11 of the Crim. Proc. Article to apply

as broadly as possible to restitution orders. It seems also that the Legislature did not intend

§ 11-603(b)(1) to apply to restitution orders in sentencing for convictions of theft.

Although § 11-619 of Title 11 states that Title 11 applies to all orders of restitution, it

contains a subsection which states that Title 11 shall not be construed to limit the authority

otherwise of a court to order restitution. Although we acknowledge Ingram’s argument

that some legislative history suggests that § 11-619(b) was included to provide alternative

means of restitution in circumstances where a defendant cannot pay, the language of the

statute does not support unequivocally that conclusion. The plain language of § 11-619(b)

states that it shall not limit the authority of the court “to direct a defendant or a child found

to have committed a delinquent act to make restitution or to perform certain services as

specified by the court, for the victim as an alternative means of restitution.” It is unclear

whether the end clause, “for the victim as an alternative means of restitution[,]” modifies

the entire sentence, or merely the “or to perform certain services as specified by the court”

portion of the sentence. At best, this section of Title 11 strikes us as drawn inartfully. We

must turn in aid of our mission to other principles of statutory interpretation in our judicial

tool box.




                                               12
   C. Specific Versus General Statutory Language.

       One such principle is the degree of specificity of the statutory sections under

consideration. “When two statutes, one general and one specific, are found to conflict, the

specific statute will be regarded as an exception to the general statute.” State v. Roshchin,

446 Md. 128, 142, 130 A.3d 453, 461 (2016). Additionally, “[w]hen two statutes cover

similar subject matter, even if neither makes reference to the other, [the Court] must

construe the statutes to give as full effect to each other as possible.” Oglesby v. State, 441

Md. 673, 687, 109 A.3d 1147, 1155 (2015).

       This principle of statutory construction assists us in untangling the seeming

confrontation between § 11-603(b)(1) and § 7-104(g)(1)(i)(2). Title 11 is a general

procedural statute governing restitution that grants a court discretion to order restitution for

statutory and common law crimes in criminal and juvenile cases. Section 7-104, however,

is a substantive criminal law statute that directs restitution, but only with regard to theft

crimes. Although theft falls within the ambit of statutory crimes covered by Title 11, the

matter of restitution in such cases is addressed more specifically in § 7-104. Therefore, §

7-104(g)(1)(i)(2) is “an exception to the general statute” and creates therefor a “theft

exception” to the restitution general provision in § 11-603(b)(1) with regard to whether the

State or the victim are obliged to ask for restitution as a threshold trigger for the exercise

of the court’s power to order restitution.

       Because § 11-603(b)(1) and § 7-104(g)(1)(i)(2) both address restitution in a criminal

law context, we must strive to construe harmoniously the statutes to give as full effect to

each as possible. Holding that all restitution orders are governed by Title 11, without

                                              13
exception (as Ingram would have us do), would render a portion of § 7-104 nugatory,

specifically § 7-104(g)(1)(i)(2), a part of the penalty section of the theft statute, which

requires a person convicted of theft to be subject to imprisonment and/or a fine and requires

the thief to restore the stolen property or pay the owner the value of the property. To

construe § 7-104(g)(1)(i)(2) as authorizing merely a court to exercise discretion to order

restitution in a theft case, as Ingram argues, strains its language too greatly. Additionally,

the effect of § 11-619(b) of the Criminal Procedure Article would be circumscribed were

we to hold that all restitution orders are governed by Title 11, § 7-104(g)(1)(i)(2)

notwithstanding. Section 11-619(b) of Title 11 states expressly that the provisions of Title

11 do not limit otherwise the authority of a court to direct a defendant to make restitution.4

         Treating Crim. Law § 7-104(g)(1)(i)(2) as a theft exception to Crim. Proc. § 11-

603(b)(i) allows both statutes to give as full effect to each other as possible. Title 11

remains the general restitution statute and applies to orders of restitution, except as held in

the present case or as may be held similarly in a future case regarding other explicit

contradictory statutory provisions. The exception carved-out by § 7-104(g)(1)(i)(2) applies

only to a particular crime: theft. Holding that § 7-104(g)(1)(i)(2) gives the court authority

otherwise to order restitution in theft crimes allows both § 7-104 and Title 11 to give as

full effect to each other as possible. It preserves the obligatory restitution scheme for theft

offenses while recognizing the otherwise general applicability of the other limitations and

requirements to restitution found in Title 11.



4
    See supra Part III B.
                                              14
   D. Relative Time of Enactment.

       Another principle of statutory construction marshalled by Ingram relates to the

relative recency of adoption of competing statutes. If two statutes present an irreconcilable

conflict, “the statute whose relevant substantive provisions were enacted most recently may

impliedly repeal any conflicting provision of the earlier statute.” Atkinson v. Anne Arundel

Cty., 428 Md. 723, 743, 53 A.3d 1184, 1196 (2012).

       Ingram points out that Title 11 was enacted more recently than Crim. Law § 7-104

and therefore reflects more accurately and across-the-board the contemporary expression

of legislative intent on the subject of restitution. He argues that full effect cannot be given

to § 7-104(g)(1)(i)(2) and § 11-603(b)(1), because they present an irreconcilable conflict.

The statutes are irreconcilable, as this argument goes, because it cannot be the case that a

court must order restitution in every theft case (regardless of whether the State or the victim

seek it) where the Criminal Procedure Article, which makes restitution discretionary,

requires a request from the victim or the State. The Legislature, when enacting originally

in 1977 the provisions of Title 11, is presumed to have acted with knowledge of the pre-

existing § 7-104. Thus, the restitution provisions in Title 11 should repeal impliedly the

restitution provision contained in § 7-104.

       The doctrine of recency does not advance Ingram’s cause. Crim. Proc. §§ 11-

603(b)(1) and 11-619 on the one hand and Crim. Law § 7-104(g)(1)(i)(2) on the other do

not present an irreconcilable conflict. Title 11 is limited in application by § 11-619(b). As

discussed above, § 7-104(g)(1)(i)(2) exists as an exception to § 11-603(b)(1). Because §



                                              15
7-104(g)(1)(i)(2) is an exception to the restitution requirement in § 11-603(b)(1), the two

statutes can operate harmoniously in their respective spheres.



   E. Constitutional Avoidance.

       Constitutional avoidance is a further principle of statutory interpretation which

Ingram invokes and attempts to bend to his service. Regarding this precept, we have stated:

       Whatever the intention of the Legislature with regard to CP § 3-122, it must
       comply with the Due Process Clause of the Fourteenth Amendment and its
       counterpart provision in Maryland, Article 24 of the Maryland Declaration
       of Rights. Under what the United States Supreme Court termed “the canon
       of constitutional avoidance,” we will construe a statute to avoid conflict with
       the Constitution whenever it is reasonably possible to do so, even to the
       extent of applying a judicial gloss to interpretation that skirts a constitutional
       confrontation. We do not presume that the Legislature intended to enact
       unconstitutional legislation and, if it did so intend, we would limit a statute
       to only those situations in which it would pass constitutional muster.


Harrison-Solomon v. State, 442 Md. 254, 287, 112 A.3d 408, 428 (2015) (internal citations

omitted).

       As a matter of both constitutional due process and Maryland criminal procedure,

restitution orders may be entered if:

       (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 request, and (3) there is sufficient
       admissible evidence to support the request - 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 behavior.


Chaney v. State, 397 Md. 460, 470, 918 A.2d 506, 512 (2007).



                                              16
       Ingram argues that potential due process issues regarding restitution are more

poignant when a guilty plea is involved. Md. Rule 4-242(c) ensures that a defendant, when

entering a guilty plea, is acting knowingly and voluntarily with an understanding of the

consequences.5 He claims that the court-ordered restitution here raises serious due process

issues because there was no notification that the punishment potential for his plea would

include an order of restitution.

       Ingram claims additionally that construing § 7-104 to authorize restitution without

the constraint of the procedural requirement in § 11-603(b)(1), discussed in Chaney,

renders § 7-104(g)(1)(i)(2) amenable to constitutional challenge. As this argument goes,

requiring a request by the State or the victim for restitution serves as explicit notice to a

defendant that restitution is in play. With such reasonable notice, a defendant will have a

fair opportunity to defend against such a request. Without that reasonable notice, potential

due process issues may arise, which render the statute vulnerable to constitutional attack.

       The State counters Ingram’s gloomy forecast by arguing that the three prerequisites

for restitution outlined in Chaney are met as a consequence of a valid theft conviction,

whether by plea or trial. The first requirement, that the defendant be given reasonable

notice that restitution is in play and in what claimed amount, is fulfilled by the fact that

restitution is required by the very statute, § 7-104, underlying the conviction.6 Because an


5
  Ingram argued in the circuit court and Court of Special Appeals that he did not enter his
guilty plea knowingly and voluntarily. This argument, however, was not advanced for our
review so we will not consider it further.
6
  The State details also a brief history of the concept of restitution, spanning from the Code
of Hammurabi to 1809 when the General Assembly enacted originally the precursor to §
7-104. Presumably, this narrative is intended to support the contention that restitution is
                                             17
order of restitution is linked inextricably to the underlying theft charge (which requires

proof of the value of the property stolen and restitution to be made), the State argues that

the second Chaney requirement is satisfied. The opportunity to defend against an order of

restitution is coupled inherently with the defendant’s opportunity to defend against a theft

charge or plead guilty to it. A plea to a charge under § 7-104 implies the defendant is aware

of the terms of that statute. The third requirement outlined in Chaney, sufficient admissible

evidence to support the amount of the request for restitution, is satisfied because proof of

valuation regarding the underlying theft conviction stands-in for the burden otherwise of

adducing sufficient admissible evidence for establishing the amount of restitution.

       Ingram did not seek review of his restitution order on constitutional grounds.

Rather, Ingram spun-up potential constitutional challenges to reading § 7-104 as requiring

restitution in theft crimes and how that interacts with the restitution provisions of Title 11.

        It seems to us that the specter of any constitutional concerns that might hover in

this case are stifled by the “ghostbuster” fact that Ingram plead guilty to § 7-104,

demonstrating constructive notice that he would be subject to make restitution. Defense

counsel elicited, on the record of the plea, the specifics of the charge to which Ingram was

pleading and the associated consequences.7         The trial court determined that Ingram


neither a new nor novel concept. Thus, a defendant has reasonable notice that restitution
accompanies a conviction of theft. Although we enjoy a good history lesson, we do not
agree that a defendant convicted of theft is on notice of restitution simply because that
concept has existed since at least the 18th century B.C.
7
  In addition to ensuring Ingram’s understanding of the theft crime to which he was
pleading guilty, defense counsel informed Ingram that he would not have the right to
withdraw his plea after sentencing, that he had a right to a trial and associated rights, such
as the State’s burdens, and that his plea could violate earlier probation if he was on
                                              18
understood fully the charge to which he was pleading guilty and associated consequences.

Because Ingram was not forthcoming as to whom he gave the purloined tires, the only form

restitution could take was reimbursement of a sum equal to the value of the tires. There

was an opportunity for Ingram to contest the charge, including the value of the stolen tires

attested to by BJ’s representative. He chose to plead guilty. The evidentiary burden of

sufficient admissible evidence to support the request was satisfied by Ingram’s confession,

subsequent guilty plea, and Schreck’s statement regarding the valuation of the tires.8



   F. Rule of Lenity.

       The rule of lenity is a principle of statutory construction that may aid a defendant in

the event of an ambiguous penal statute. “An ambiguous penal statute is subject to ‘the

rule of lenity,’ which requires that such statutes be strictly construed against the State and

in favor of the Defendant. This means that it must be ‘strictly construed so that only

punishment contemplated by the language of the statute is meted out.’” Gardner v. State,

344 Md. 642, 651, 689 A.2d 610, 614 (1997) (internal citations omitted).




probation between October and December of 2015. Then, counsel asked a series of
questions to make sure that the plea was voluntary and Ingram’s individual decision. The
trial judge found that Ingram freely, knowingly, and voluntarily agreed to enter a guilty
plea. The judge found additionally that Ingram entered his plea with a “full understanding
of the nature of the charge, the possible consequences of the plea, and all of the rights that
he is waiving.” (emphasis added).
8
  Ingram, in his brief, alleges that the State expressed in the course of the plea negotiations
between counsel that it would not seek restitution. The record contains no corroboration
or evidentiary support for this claim. We cannot consider this allegation. Regardless, the
argument is irrelevant because a court has authority, under § 7-104(g)(1)(i)(2), to order
restitution, notwithstanding the absence of a request from the State or a victim.
                                              19
       Ingram argues finally that, to the extent that § 7-104(g)(1)(i)(2) is ambiguous, when

considered in light of § 11-603(b)(1), the rule of lenity should apply. We iterated

previously that the language of § 7-104(g)(1)(i)(2) is not ambiguous. For the reasons

stated, it can be read in conjunction with Title 11 harmoniously to give maximum possible

effect to both.

                                          JUDGMENT OF THE COURT OF
                                          SPECIAL APPEALS AFFIRMED. COSTS
                                          TO BE PAID BY PETITIONER.




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