Simms v. State

• Decision Date: 01 September 1985
• Docket Number: No. 319,319
• Citation: 65 Md.App. 685,501 A.2d 1338
• Parties: Jeffrey A. SIMMS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 685

65 Md.App. 685

501 A.2d 1338

Jeffrey A. SIMMS v. STATE of Maryland.

No. 319, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Jan. 8, 1986.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender on brief), Baltimore, for appellant.

Valerie W. Loftin, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, and Starke M. Evans, State's Atty. for Caroline County, Denton, on brief), for appellee.

Submitted before WILNER, ALPERT and KARWACKI, JJ.

ALPERT, Judge.

In this appeal we are asked to decide whether a trial judge, in effecting restitution, can impose conditions of parole. His restitutional efforts, although laudatory in concept, may not be accomplished by such means.

Jeffrey A. Simms (appellant) was charged with two counts of assault and battery and one count of malicious destruction of property. On February 28, 1985, he was tried by the Circuit Court for Caroline County, the Honorable Edward D.E. Rollins presiding, and was convicted on all counts. The trial court sentenced him to two concurrent three-year terms of incarceration and imposed, as conditions of parole, restitution in the amount of $350.00 and reimbursement of a Public Defender fee in the amount of $150.00. This appeal was noted.

Appellant's challenge to the sentence of the lower court is two-pronged. He claims that:

1. The court was without authority to impose any such conditions on appellant's parole, and that

2. The court should not have imposed those conditions without a hearing to determine his ability to pay.

Although we agree with appellant's first contention, we must address the second for guidance to the trial court on remand.

1.

Appellant contends that the trial judge has no authority to set any conditions of parole because that authority is vested exclusively with the Maryland Parole Commission.

This is yet another case where the answer lies in statutory construction. It may well be that some of the language in the relevant statute may have misled the court below. The trial judge's power to order restitution derives from Md.Ann.Code Art. 27 § 640:

Restitution for crimes.

(b) Restitution may be ordered upon conviction of certain crimes; priority of payment.--Upon conviction for a crime where property of another has been stolen, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime, or where the victim suffered actual medical expenses, direct out of pocket losses, or loss of earning as a direct result of the crime, or if as a direct result of the crime, the victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental entity, the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime. Payment of restitution to the victim under this subsection has priority over payment of restitution to the Department or any other governmental entity.

(c) Sentence or condition of probation or parole.--When an order of restitution has been entered pursuant to subsection (b), compliance with the order may be made as a sentence or condition of probation or parole.

(emphasis added).

The cardinal rule of statutory construction is, of course, to ascertain and effectuate the actual legislative intention. No construction is required where the statutory provisions are unambiguous. Where a statute, however, is plainly susceptible of more than one meaning, construction is required. Under those circumstances we must consider not only the literal or usual meaning of words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. State v. Intercontinental, Ltd., 302 Md. 132, 137, 486 A.2d 174 (1985).

Although it may appear, at first blush, that under § 640(c) the trial judge's "order of restitution ... may be made as ... a condition of probation or parole," that section must be read in context with § 640(b). Mitchell v. State, 58 Md.App. 113, 118, 472 A.2d 494 (1984).

Clearly, § 640(b) confers authority upon a court to order restitution while Sec. 640(c) deals with the implementation or enforcement of such an order. The latter section does not actually state who may effect compliance with the restitution order. The legislature could have specifically stated who might enforce compliance but did not do so.

Thus, considering the particular use and association of words in those two sections, we think a doubt or ambiguity exists as to the reach of the statute vis-a-vis parole, and that construction is required. State v. Intercontinental, supra.

To aid in the construction of statutes, courts have indulged numerous presumptions including a presumption that the legislature had full knowledge of the existing law, legislation and policy concerning the subject of the statute in question. Board of Education of Garrett County v. Lendo, 295 Md. 55, 453 A.2d 1185 (1982).

Parole and probation, though having some of the same characteristics, are quite different things. Placing a convicted person on probation is peculiarly a judicial act. It is part of the sentencing function. It is a "conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court...." Md.Code Ann. art. 41, § 107(f) (emphasis added). It is "an act of clemency bestowed by the court," Hudgins v. State, 292 Md. 342, 347, 438 A.2d 928 (1982) (emphasis added), and thus the court, and only the court, can determine the conditions of the probation. See art. 41, § 107(f): "The condition of any [order] ¹ of probation shall be determined solely by the judge granting the same." See also Costa v. State, 58 Md.App. 474, 473 A.2d 942 (1984).

Parole, on the other hand, is a purely executive function, the exercise of which must be, and by statute is, committed to an executive agency--the Maryland Parole Commission. See Md.Code Ann. art. 41, § 110(a): "The Commission has the exclusive power to ... [a]uthorize the parole of individuals sentenced under the laws of this State to any penal or correctional institution, jail, or other place of confinement or detention within this State...." (emphasis added).

A parole is an act of executive clemency. It does not involve the sentencing function or any other judicial function. It is a conditional release (rather than exemption) from imprisonment granted by the Parole Commission which "entitles the recipient thereof to leave the institution in which he was imprisoned, and to serve the remainder of his term outside the confines thereof if he shall satisfactorily comply with all the terms and conditions in the parole order." Art. 41, § 107(e) (emphasis added); Murray v. Swenson, 196 Md. 222, 76 A.2d 150 (1950). A judicial order of restitution as a condition of parole is not binding on the Parole Commission. The Commission may, if it chooses, exercise its discretion in light of such comments or recommendations of a sentencing judge, or it may ignore them. COMAR 12.08.01.18A so provides:

(1) The commission shall have the exclusive power of parole release. On determining whether a prisoner is suitable for release on parole, the commission considers:

* * *

(g) Any report or recommendation made by the sentencing judge.

Another rule of statutory construction teaches us that where the provisions of a statute are ambiguous, we may consider the consequences of proposed construction and adopt that construction which avoids an illogical or unreasonable result or which is inconsistent with common sense. That a court could set a condition of parole yet have no power itself to enforce the condition and no power to require that the Parole Commission accept it is both illogical and unreasonable. Since we may presume that the legislature knew, when it enacted the subject statute, the respective roles of the courts and Parole Commission, and that only the Parole Commission and not the trial court could enforce a condition of parole, we may thus conclude that the legislature never intended to impose a meaningless power upon the court.

There is yet another tenet of statutory construction that we deem applicable to the statute sub judice: that "[t]he legislature is presumed to intend that its enactment be harmonious, rather than at odds, with the Constitution." Marshall v. Director of Finance of Prince George's County, 294 Md. 435, 440, 450 A.2d 1300 (1982).

Maryland Declaration of Rights, art. VIII provides not only that the legislative, executive, and judicial powers of the State government should be "forever separate and distinct from each other" but that "no person exercising the functions of one of said Departments shall assume or discharge the duties of any other."

If indeed, as we indicated earlier, the granting of parole is an executive function to be exercised exclusively by the Parole Commission, it necessarily follows that only the Parole Commission can determine the conditions to be attached to a parole. For a court to attempt to do so would involve the exercise of a non-judicial function and would necessarily intrude upon the discretion committed to the Parole Commission. We do not believe that the legislature ever intended to violate the "Separation of Powers" doctrine and therefore the statute must be construed so as to preclude the imposition of parole conditions by a court. See also 16 C.J.S. Constitutional Law § 101, 102; Clark v. United States, 72 F.Supp. 594, 601 (1947); Brown v. State, 177 Md. 321, 330-31, 9 A.2d 209 (1939); Hughes v. State, 14 Md.App. 497, 507, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S.Ct. 461, 34 L.Ed.2d 317 (1971).

While the court may not impose conditions of parole, it can indeed impose restitution as part of the sentence, Art. 27, Sec. 640(b); Smitley v. State, 61 Md.App. 477, 487 A.2d 315 (1985), and recommend ² to the Parole Commission that restitution be made a condition of parole. York v. State, 56 Md.App. 222, 467...