Government of Virgin Islands v. Marsham

• Decision Date: 05 June 2002
• Docket Number: No. 01-2662.,01-2662.
• Citation: 293 F.3d 114
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. Warrington MARSHAM.
• Court: U.S. Court of Appeals — Third Circuit

293 F.3d 114

GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. Warrington MARSHAM.

No. 01-2662.

United States Court of Appeals, Third Circuit.

Argued May 14, 2002.

Opinion Filed June 5, 2002.

Richard S. Davis, Maureen P. Cormier (argued), Assistant Attorneys General, Department of Justice, St. Thomas, U.S. Virgin Islands, for appellant.

Vincent A. Fuller, Jr. (argued), Medical Arts Complex, St. Thomas, U.S. Virgin Islands, for appellee.

Before: AMBRO, FUENTES and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

On this appeal, after we conducted a thorough examination of the relevant Virgin Islands statutes, we have concluded — contrary to the District Court of the Virgin Islands, Appellate Division (the "Appellate Division") — that in sentencing a criminal defendant, there is no statutory or decisional bar preventing restitution from being ordered when the defendant must also serve time in prison and is not on probation. Indeed, under 34 V.I.C. § 203(d)(3), it is the obligation of the sentencing court to order restitution providing, of course, that after an inquiry pursuant to the guidelines suggested in this opinion, restitution and the amount thereof is deemed appropriate.

I.

Defendant Warrington Marsham ("Marsham") pled guilty to three counts of grand larceny before the Territorial Court of the Virgin Islands (the "Territorial Court"), and was sentenced to 27 years and $13,583.33 in restitution. Marsham appealed his sentence to the Appellate Division. The three judge panel of the Appellate Division affirmed Marsham's sentence but vacated the order of restitution in a judgment dated June 13, 2001. The Government of the Virgin Islands (the "Government") appealed the Appellate Division's vacatur of restitution to this Court, filing a timely notice of appeal on June 21, 2000.¹

The issue presented in this appeal is whether the Territorial Court may order a convicted defendant to pay restitution without first sentencing him to probation. As noted above, for the reasons that follow, we will hold that it may. We will therefore reverse the Appellate Division's judgment vacating the order of restitution. In so holding, we commend to the sentencing court that before ordering restitution, it should engage, as a desirable (if not an essential) practice, in the inquiry we have recognized in Government of the Virgin Islands v. Davis, 43 F.3d 41, 47-48 (3d Cir.1994), albeit we did so there in a federal context.

II.

Between July 12, 1996 and September 8, 1996, Marsham went on a burglary spree in the Virgin Islands. The particulars of his crimes are not relevant to this appeal, so they will not be repeated in detail here. Suffice it to say that Marsham and various accomplices stole cash and goods from six businesses totaling almost $50,000 and attempted to rob a seventh business. Marsham was charged with seven counts of third degree burglary, six counts of grand larceny, one count of petty larceny and one count of attempted burglary.

Three accomplices — Henry Williams, Samuel Leader and Thomas Somersall — pled guilty, while Marsham opted for trial before the Territorial Court. Two days into trial — after hearing testimony of Leader and Williams — Marsham made two attempts to plead guilty to lesser charges, which the Territorial Court Judge, Ive A. Swan, rejected. Judge Swan finally accepted Marsham's last attempt, and Marsham pled guilty to three counts of grand larceny. In so doing, he faced a maximum of thirty years imprisonment.

On April 21, 1999, the Territorial Court sentenced Marsham to two consecutive 10 year sentences and one consecutive 7 year sentence for a total of 27 years. The Court also ordered that Marsham pay $13,583.33 in restitution.

Marsham appealed his sentence to the Appellate Division on April 26, 1999. In an opinion dated June 13, 2001, the Appellate Division affirmed the 27 year sentence, but vacated the order of restitution. The Appellate Division remanded the case to the Territorial Court, ordering only that the restitution order be vacated.

Both the Government and Marsham filed notices of appeal to this Court on June 21, 2001. The matter before us deals only with the Government's appeal of the Appellate Division's vacatur of the restitution order and does not address any of the issues raised in Marsham's appeal, which will be addressed by a subsequent panel of this Court.

III.

Before addressing the merits of the Government's appeal, we consider whether we have jurisdiction to hear this case. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 229 (3d Cir.1998) ("we have an independent obligation to examine our jurisdiction to hear this appeal."). The Appellate Division had jurisdiction as an appellate court under local law, 4 V.I.C. § 33, and the Revised Organic Act, 48 U.S.C. § 1613a(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 1294(3), which grant us appellate review over final decisions from the District Court of the Virgin Islands. Our jurisdiction rests as well on the Revised Organic Act, 48 U.S.C. § 1613a(c), which grants us appellate authority over the Appellate Division's final decisions on matters of local law. The issue here is whether the Appellate Division's decision is a final order.

In Isidor Paiewonsky Associates, Inc. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir.1993), this Court noted that

[a] final decision is one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness, for giving effect to the judgment and leaves nothing to be done in the cause save to superintend, ministerially, the execution of the decree.

Id. at 150 (internal quotations omitted) (emphasis in original). This Court also acknowledged that the concept of "finality" under § 1291 be given a "`practical rather than a technical construction ...'" Id. (quoting Ohntrup v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir.1986) (internal quotations omitted)). In Marsham's case, despite the fact that the Appellate Division technically "remanded" the case for resentencing, there would be nothing left for the Territorial Court to do but to execute the Appellate Division's order. Since Marsham's 27 year sentence was affirmed in all other respects, the only action to be taken by the Territorial Court would have been simply to vacate its restitution order. In this way, the Appellate Division's order conclusively and finally determined the issue of Marsham's sentence and restitution, and sent the matter back simply for a ministerial entry. Accordingly, we consider the Appellate Division's order as final for purposes of our appellate jurisdiction.²

IV.

In vacating the Territorial Court's order of restitution, the Appellate Division relied in part upon its prior decision in Karpouzis v. Government of the Virgin Islands, 58 F.Supp.2d 635 (D.Vi.1999). There, the Appellate Division interpreted two local statutes — 5 V.I.C. §§ 3711(a) and 3721 — as requiring that "[s]entencing judges cannot order defendants convicted of Virgin Island crimes to pay restitution for those crimes from prison." Id. at 639. Consequently, the Appellate Division

reiterate[d] and reaffirm[ed] that, under Virgin Islands law as presently codified, restitution may not be ordered unless the court sentences a defendant to straight probation or to no more than six months imprisonment followed by a period of probation.

Marsham v. Government of the Virgin Islands, 151 F.Supp.2d 643, 650 (D.V.I. 2001). We review the Appellate Division's statutory interpretation de novo. Ray v. Kertes, 285 F.3d 287, 291 (3d Cir.2002).

As an initial matter, neither § 3711(a) nor § 3721 contains any language prohibiting an order of restitution for any reason — let alone for incarceration. They merely authorize restitution if probation is ordered. Section 3711(a) states, in relevant part:

While on probation and among the conditions thereof, the defendant ... may be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had....

5 V.I.C. § 3711(a). In addition, § 3721 states, in relevant part:

If a person is convicted of a crime and is otherwise eligible, the court, by order, may withhold sentence or impose sentence and stay its execution, and in either case place the person on probation for a stated period, stating in order the reasons therefor, and may impose any conditions of the probation which appear to be reasonable and appropriate to the court. If the court places the person on probation, the court shall require restitution designed to compensate the victim's pecuniary loss resulting from the crime to the extent possible, unless the court finds there is substantial reason not to order restitution as a condition of probation.

5 V.I.C. § 3721. These statutes merely permit — and indeed, § 3721 requires — restitution if and when probation is granted, but they do not restrict the sentencing judge in any way from ordering restitution.³

Moreover, the Virgin Island's Victims' Bill of Rights clearly mandates that a judge order restitution where the defendant's crime involves property. 34 V.I.C. § 203(d)(3) states:

A victim has the right to receive restitution for expenses or property loss incurred as a result of a crime. The judge shall order restitution at every sentencing for a crime against person or property, or as a condition of probation or parole, unless the court finds a substantial and compelling reason not to order restitution....

34 V.I.C. § 203(d)(3) (emphasis added). Unlike §§ 3711(a), 3721 and 4606, which authorize restitution in only specific instances (i.e., probation or parole), § 203(d)(3) requires that a judge issue a restitution order either at the sentencing itself or as a condition of probation or parole where the crime is one against person or property.

Marsham argues that the Victim's Bill of Rights applies only to people and not corporations because the word "vic...