Brecker v. State, 70

• Decision Date: 01 September 1984
• Docket Number: No. 70,70
• Parties: Charles Allen BRECKER v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 36

304 Md. 36

497 A.2d 479

Charles Allen BRECKER v. STATE of Maryland.

No. 70, Sept. Term, 1984.

Court of Appeals of Maryland.

Sept. 13, 1985.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and EDWARD D. HIGINBOTHOM, Associate Judge of the Third Judicial Circuit (retired), Specially Assigned.

COLE, Judge.

We granted certiorari in this case to determine whether appellant received an illegal sentence and whether a sentencing judge may order a defendant to make restitution and to reimburse the State for court costs and services rendered by the Public Defender without first inquiring into the defendant's ability to do so. In light of the mootness doctrine and Maryland rule 885, we will be unable to address the merits of either contention.

The relevant facts may be briefly stated. A jury sitting in the Circuit Court for Kent County found appellant guilty of various offenses in connection with a crime spree at a Chestertown drug store during the early morning hours of August 6, 1982. Specifically, the jury found appellant guilty of storehouse breaking and stealing, storehouse breaking with intent to steal, theft, malicious destruction of property, and driving an automobile while his license was cancelled, suspended, refused, or revoked. The trial court originally sentenced appellant to a total of sixteen years' imprisonment, eight years of which the trial court suspended on the condition that appellant successfully complete five years' probation following his release from imprisonment.

While this case was pending before us, the trial court revised appellant's sentence so as to comport with the ten year statutory limit set forth in Md. Code (1957, 1982 Repl.Vol.), Art. 27, § 33. In particular, the trial court decreased appellant's sentence to a total of eleven years' imprisonment, eight years of which the court again suspended on the condition that appellant successfully complete five years' probation following his release from imprisonment. Of this eleven year sentence, one year is for the traffic offense mentioned above.

The parties are in agreement that the revised sentence comports with Maryland law. As a result, the issue concerning the legality of appellant's original sentence is now moot, and we thus dismiss that issue under Md. Rule 835 a. 6. ¹ The remaining issue, which deals with whether a court must first inquire into a defendant's ability to pay before ordering restitution or reimbursement for legal services and court costs, had its genesis in the conditions of probation established by the court in a probation order. It is to this probation order that we now turn.

As terms and conditions of probation, the trial court ordered appellant to reimburse the State for court costs ($70) and for services rendered by the Public Defender ($750). In addition, the trial court ordered restitution in the amount of $1,036.76, less any payments made by appellant's co-defendant, up to one-half of that amount. The trial court further directed that these payments be made in such installments as determined by the Division of Parole and Probation (Division), and that these payments be satisfied in full within two years of appellant's release on probation. At no time did the trial court make any inquiry into appellant's ability to pay.

On appeal to the Court of Special Appeals that court rejected appellant's various arguments in an unreported per curiam opinion filed February 27, 1984. In particular, that court summarily rejected appellant's argument that the trial court erred by not inquiring into appellant's ability to pay before ordering restitution and reimbursement for legal services and court costs. The intermediate appellate court reasoned that appellant had failed to preserve that argument for appellate review in accordance with Md. Rule 1085. We agree.

Appellant contends that the trial court erred in ordering him to make restitution and to reimburse the State for court costs and legal fees without first inquiring into his ability to do so. According to appellant, the order to make restitution and to reimburse the State for court costs must be vacated because the trial court failed to consider various factors pointing to appellant's inability to make these payments. With respect to reimbursement of legal fees, appellant argues that the trial court failed to comply with Md. Code (1957, 1983 Repl.Vol.), Art. 27A, § 7(g), ² which appellant asserts imposes an obligation upon the court to inquire into, and make a finding concerning, the defendant's ability to pay.

We are unable to reach these arguments on their merits for two related reasons. First, our cases have consistently stated that when an objector sets forth the specific grounds for his objection, although not requested by the court to do so, the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified. See, e.g., Thomas v. State, 301 Md. 294, 328, 483 A.2d 6, 23 (1984), cert. denied, 470 U.S. ----, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); Jackson v. State, 288 Md. 191, 196, 416 A.2d 278, 282 (1980); State v. Kidd, 281 Md. 32, 39, 375 A.2d 1105, 1110,cert. denied, 434 U.S. 1002, 98 S.Ct. 646, 54 L.Ed.2d 498 (1977); von Lusch v. State, 279 Md. 255, 263, 368 A.2d 468, 472 (1977). Here, appellant objected to the amount of the restitution at the May 11, 1983 sentencing hearing because (1) the presentence investigation report did not contain the amount of the restitution, and (2) there was no evidence that federal law required that recovered stolen drugs be destroyed. He did not, however, object because the trial court made no inquiry into appellant's ability to pay before ordering restitution and reimbursement of legal fees and court costs. Thus, in accordance with "well settled" Maryland law, Thomas v. State, supra, 301 Md. at 328, 483 A.2d at 23, appellant is considered to have waived the point he now argues.

Second, Md. Rule 885 provides that "[t]his Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the circuit court[.]" Although under specified circumstances this Court will decide an issue not raised at trial, see, e.g., State v. Raithel, 285 Md. 478, 484, 404 A.2d 264, 267 (1979) (decide case on point not previously raised to avoid resolving constitutional issue); Potter v. Bethesda Fire Dep't, Inc., 302 Md. 281, 285, 487 A.2d 288, 290 (1985) (jurisdictional issues and certain other matters of fundamental public policy, if brought to our attention by a party or sua sponte ); Grant v. State, 299 Md. 47, 53 n. 3, 472 A.2d 459, 462-63 n. 3 (1984) (record is adequate and the decision furnishes an alternate ground for affirming the judgment); Squire v. State, 280 Md. 132, 134-35, 368 A.2d 1019, 1020 (1977) (the Court, in its...