Greco v. State, 171

• Decision Date: 01 September 1985
• Docket Number: No. 171,171
• Citation: 65 Md.App. 56,499 A.2d 209
• Parties: William R. GRECO v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 56

65 Md.App. 56

499 A.2d 209

William R. GRECO v. STATE of Maryland.

No. 171, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Nov. 6, 1985.

William W. Cahill, Jr. (Thomas C. Morrow, William K. Meyer and Weinberg and Green, on brief), Baltimore, for appellant.

Gary E. Bair, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before GILBERT, C.J., and WILNER and ADKINS, JJ.

GILBERT, Chief Judge.

The Saturday motion picture cliff-hanger "Western serials" of the 1930's ofttimes consisted of many exciting episodes. Those serials may have been the inspiration for the instant case, William R. Greco v. State of Maryland, because in one form or another this matter has appeared in the appellate courts at least nine times. ¹

This appeal had its genesis in the attorney general's investigation into Medicaid fraud at a Prince George's County hospital, as well as a closely related nursing home.

In what may prove to be the final chapter in this serial, we are asked to determine:

I. Whether the prosecution for the offense of Medicaid fraud was barred by the passage of time.

II. Whether the trial court erred in refusing to enter a judgment of acquittal despite Greco's claim that the State failed to prove that the alleged offense occurred in Baltimore City.

III. Whether the trial court erred in entering an order of restitution, notwithstanding Greco's acquittal on all counts of unlawful receipt of money, goods or services.

Before deciding the issues put to us by Greco, we shall first relate the factual predicate from which this case arose.

The newly created Medicaid Fraud Control Unit of the Office of The Attorney General began an investigation in August 1981 concerning suspected large-scale fraud on the part of a closely related hospital and nursing home, and its employees, owners, and administrators. Dr. William R. Greco, the administrator and co-owner of the nursing home, was the target of the probe. The direct result of the percontation was that Dr. Greco was indicted by the Grand Jury of Baltimore City. The indictment as handed up consisted of six counts of Medicaid fraud, three counts of obtaining money under false pretenses, and one count of theft.

Prior to trial, Greco moved to dismiss the indictment on two grounds: 1) improper venue; and 2) that prosecution was barred by the statute of limitations. A pretrial hearing was held on the motion challenging venue. The Chief of Management and Services for the Department of Health and Mental Hygiene (DHMH), the agency which administers the Medicaid program in this State, testified concerning procedures for filing and processing statements of reimbursable cost.

We glean from the record that the system entails ongoing reimbursement based on the health care provider's estimate of total reimbursable cost for a given year, with a subsequent adjustment based on the actual cost incurred during that year. In order for the system to function properly, the health care provider must submit two annual cost reports: an Interim Rate Calculation (IRC), and a Statement of Reimbursable Cost (SRC). An IRC is a statement of projected reimbursable cost, while the SRC is a statement of actual cost incurred.

During the period covered by the indictment, both the IRC and the SRC were to be filed with Hospital Cost Analysis Services (HCAS) located in Baltimore County. HCAS is or was a private business that contracted with the State to audit IRCs and SRCs that were submitted by nursing homes. Its function was to collect and review the information submitted by certain health care providers and to recommend to DHMH a per diem payment rate per patient. It was DHMH's responsibility to conduct a patient census at the various health care facilities and to enter that information, along with the payment rate, into its computer so as to determine the amount of money payable to each facility.

After considering the testimony adduced at the hearing, the trial judge determined that venue was proper in Baltimore City. He denied Greco's motion. The judge also ruled that the action brought against Greco was not barred by limitations.

Following a nonjury trial, Greco was convicted on six counts, namely: a false statement in SRCs for the years 1977 (Count 1), 1978 (Count 2), and 1979 (Count 3); a false statement in IRCs for the years 1978 (Count 4), 1979 (Count 5), and 1980 (Count 6). Dr. Greco was acquitted of the remaining counts which included three charges of obtaining money by false pretenses and one count of theft.

The doctor was sentenced to concurrent five year terms of imprisonment on each of the six counts of Medicaid fraud. All but eighteen months of the sentence were suspended. Dr. Greco was also required to perform eighteen months of community service, and was fined $60,000. Additionally, the doctor was ordered to pay to the State $50,000 as restitution. Aggrieved by the convictions and resulting sentences, Greco noted this appeal.

Any additional facts necessary for a better understanding of a particular issue will be supplied during the course of the particular discussion.

I. Is the prosecution barred by statute of limitations?

Dr. Greco contends that his convictions on the Medicaid fraud counts must be reversed because the prosecution for those offenses was not initiated within three years of the crimes. The statute upon which Greco bottoms his argument is Md.Cts. & Jud.Proc.Code Ann. § 5-106. That section provides:

"Prosecution for misdemeanor.

(a) One year.--Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.

(b) Two years.--A prosecution under the vehicle code shall be instituted within two years after the offense was committed if the charge is:

(1) Unlawfully using a driver's license; or

(2) Fraudulently using a false or fictitious name when applying for a driver's license.

(c) Thirty days.--A prosecution for Sabbath breaking or drunkenness shall be instituted within 30 days after the offense was committed.

(d) Same.--Prosecution for selling alcoholic beverages in Allegany County.--In Allegany County, a prosecution for selling alcoholic beverages to a person under the legal age for drinking such alcoholic beverages or for selling

alcoholic beverages after hours shall be instituted within 30 days after the offense was committed.

(e) Offenses under election laws or conflict of interest laws, criminal malfeasance, misfeasance or nonfeasance.--A prosecution for the commission of or the attempt to commit a misdemeanor constituting: (1) a criminal offense under the State election laws; or (2) a criminal offense under the State conflict of interest laws; or (3) criminal malfeasance, misfeasance, or nonfeasance in office committed by an officer of the State, or of an agency of the State, or of a political subdivision of the State, or of a bicounty or multicounty agency in the State shall be instituted within two years after the offense was committed.

(f) Conspiracy to commit offenses enumerated in subsection (e).-- A prosecution for conspiracy to commit any of the offenses enumerated in subsection (e) shall be instituted within two years after the offense was committed.

(g) Welfare fraud.--A prosecution for a welfare offense under Article 27, § 230A of the Code shall be instituted within three years after the offense was committed....

(h) Medicaid fraud.--A prosecution for the offense of Medicaid fraud under Article 27, § 230B of this Code shall be instituted within 3 years after the offense was committed. (1980, ch. 97.)"

Greco maintains that although the statute as a whole appears to apply only to misdemeanors, subsection (h) is applicable to felonies. Proceeding from that premise, Greco states that even though he was charged with six counts of felony Medicaid fraud, prosecution of those offenses was barred by limitations. To reach that conclusion, one has to divorce subsection (h) from the statute as a whole and consider it as an independent provision totally unrelated to the purported subject of § 5-106, "Prosecution for misdemeanor."

The caption to § 5-106 takes on particular significance inasmuch as that caption was a part of the original enactment. ² The Court of Appeals in Smelser v. Criterion Ins. Co., 293 Md. 384, 386-87 n. 2, 444 A.2d 1024, 1026 n. 2 (1982), made crystalline that:

"Code (1957, 1981 Repl.Vol.) Art. 1, § 18, as enacted by Ch. 196 of the Acts of 1961, providing that '[t]he captions or headlines of the several sections of th[e] Code which are printed in bold type, and the captions or headlines of the several subsections ... which are printed in italics ..., are intended as mere catchwords to indicate the contents of the sections and subsections' and 'are not to be deemed or taken as titles of the sections and subsections, or as any part thereof,' is not applicable in this instance since the captions are found in the original enactment of § 543 by Ch. 73 of the Acts of 1972." (Emphasis supplied.)

When § 5-106 is read in the light of Smelser, it is perspicuous that the statute was intended to apply to misdemeanors and only to misdemeanors. It has no application whatsoever to felonies. Consequently, the passage of the three years between the last fraudulent act and the return of the indictment does not bar prosecution. Generally there is no statute of limitations on felonies committed in and contrary to the laws of this State. Smallwood v. State, 51 Md.App. 463, 467, 443 A.2d 1003, 1006 (1982).

The amendment to § 5-106 by the enactment of Ch. 97 of the Laws of 1980 does not, as Greco asserts, alter the application of Smelser to the instant case. Indeed, Ch. 97 declared that it was,

"FOR the purpose of amending the statute of limitations for medicaid fraud; ...

BY adding to

Article--Courts and Judicial Proceedings

Section 5-106(h)

Annotated...