In Re TYRELL A. , 442 Md. 354 ( 2015 )

In re: Tyrell A., No. 49, September Term, 2014
JUVENILE PROCEEDINGS – SENTENCING – RESTITUTION – CO-
PARTICIPANT IN CRIMINAL ACTIVITY NOT ELIGIBLE ORDINARILY
A trial court does not have the authority generally to order, as a condition of
probation, a juvenile respondent to pay restitution to a voluntary and willing co-
participant in the delinquent conduct for which the respondent is found delinquent, absent
exceptional circumstances.
Circuit Court for Montgomery County
Case No. 06-J-12-268
Argued: 9 February 2015
IN THE COURT OF APPEALS OF
MARYLAND
No. 49
September Term, 2014
IN RE: TYRELL A.
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Filed: March 30, 2015
“The first rule of Fight Club is: You do not talk about
Fight Club.”—Fight Club (Fox 2000 Pictures, Regency
Enterprises, Linson Films 1999).
In this case, at the very least, the first rule of Fight Club was violated apparently.
Two high school students, both of whom were minors at the time of the underlying
pugilistic display, engaged in a fist-fight. Their verbal argument that commenced in front
of their school came to blows behind the school. The pre-fight publicity attracted an
audience, causing a disturbance in scholastic activities. In the course of the fight, one of
the combatants, Dylan P., suffered a broken nose and damaged sinuses.
In a subsequent juvenile proceeding, Tyrell A. (“Petitioner”), the nominal victor of
the main event, was found by the Circuit Court for Montgomery County, sitting as a
juvenile court, to have been involved in the common law offense of affray. 1 For purposes
of determining Petitioner’s involvement, the Court found Dylan P. to be also a participant
in the affray; however, he was not charged with any delinquent act arising from the fight.
The Circuit Court placed Petitioner on probation. One of the conditions of his
probation required him to pay restitution for a portion of the medical expenses incurred
by Dylan P. for treatment of his injuries suffered during the affray. We consider here
1
The common law crime of affray is committed when mutual combatants cause
fear and disruption to the public. Hickman v. State, 193 Md. App. 238, 248, 996 A.2d
974, 980 (2010) (citing 2A C.J.S. Affray, §1). One of the principal differences between
affray and common law assault and/or battery is that the victim of an affray is deemed to
be the public, rather than an individual. Hickman, 193 Md. App. at 252-53; 996 A.3d at
982. Presumably, an assault or battery may become subsequently an affray or an affray
may “morph” into an assault or battery.
whether the Circuit Court had discretion, under Maryland Code (2001, 2008 Repl. Vol.),
Criminal Procedure Article, §§ 11-603, 11-222 (“CP”), to order restitution, under the
circumstances, to a voluntary co-participant in the delinquent act of affray for which
Petitioner was found involved.
FACTUAL AND PROCEDURAL BACKGROUND
On 11 April 2012, the State’s Attorney for Montgomery County filed a juvenile
petition alleging that Petitioner was a delinquent child who committed second degree
assault and affray. A merits hearing was held on 14 June 2012. Petitioner and the State
reached a plea agreement in which Petitioner admitted involvement in the alleged affray
and the State withdrew the charge of second degree assault.
The Circuit Court for Montgomery County, sitting as a juvenile court, informed
Petitioner of his trial rights and, satisfied that he understood the impact of his admission
and was admitting freely and voluntarily to the affray, accepted Petitioner’s admission.
The State then offered the following predicate facts in support of Petitioner’s admission:
On January 13, 2012, at Blake High School [Tyrell A.]
and [Dylan P.] were arguing in front of the high school.
[Tyrell A.] challenged [Dylan P.] to a fight out behind the
school wherein [Tyrell A.] punched [Dylan P.] in the face two
times, breaking his nose and damaging his sinuses. This fight
caused a disturbance of school operations and its students and
all events occurred in Montgomery County, Maryland.
Petitioner accepted the State’s proffer, adding only that “[Tyrell A.] didn’t invite
[Dylan P.] to the rear of the school. [Dylan P.] did go to the rear of the school and that’s
where the affray occurred.” On this information, the juvenile judge determined that
Petitioner committed the offense of affray. After inquiring as to the cause of the argument
2
that led to the two-punch knockout—money for a bus fare, according to Petitioner—the
judge placed Petitioner on probation.2
The terms of Petitioner’s probation required that he observe a curfew and other
rules set by his parents, continue with outpatient drug treatment, and participate in an
education assessment and any directed family-based services. The State also sought
restitution to be paid to Dylan P. for his medical expenses resulting from his injuries
sustained in the affray. A restitution hearing was scheduled for a later date so that
Petitioner’s counsel could prepare Petitioner’s defense.
On 19 July 2012, the juvenile court held a restitution hearing. Petitioner, through
his attorney, argued that restitution was not appropriate because Dylan P. was not the
victim of the affray, but rather a co-participant who was involved equally in the
delinquent conduct. The State, pointing to the language of the restitution statutes, argued
that the statutory text did not prohibit restitution to co-participants of criminal or
delinquent conduct and, therefore, the Court had discretion to order restitution.
The Circuit Court amended Petitioner’s probation to require Petitioner’s payment
of $299.76 to Dylan P. as partial restitution for Dylan P.’s medical expenses. This sum
was half of the amount sought by the State. According to the judge, because both
Petitioner and Dylan P. were participants in the affray, and therefore Dylan P. was as
responsible for his injuries as Petitioner, it was not appropriate for Petitioner to pay the
2
Petitioner was on probation already for an unrelated earlier offense. The juvenile
judge modified the previous probation order.
3
full amount of the medical expenses. Petitioner appealed to the Court of Special Appeals
the restitution requirement of his probation.
In an unreported opinion, a divided panel of the intermediate appellate court
affirmed the Circuit Court’s order of restitution. The majority relied on the text of CP §
11-601(j) defining “victim” for purposes of CP §11-603. Judge Irma Raker (specially
assigned) authored a dissenting opinion, focusing rather on the ordinary usage of
“victim” within the criminal law and concluding that Dylan P. was not a victim within the
ambit of the statute.
Petitioner sought our review of the restitution requirement as a condition of his
probation. We issued a writ of certiorari, In re: Tyrell A., 439 Md. 327, 96 A.3d 143
(2014), to consider the following questions:
1) Does the term “victim,” defined in Md. Code (2001,
2008 Repl. Vol) Criminal Procedure Art., §§ 11-601(j) and
11-603(a), as “a person who suffers death, personal injury, or
property damage or loss as a direct result of a crime or
delinquent act,” include an individual who sustains personal
injury while voluntarily participating in the crime or
delinquent act?
2) Is an individual who sustains personal injury while
voluntarily participating in the common law offense of affray
a “victim” within the meaning of §§ 11-601(j) and 11-603(a)?
3) Should the definition of “victim” in §§ 11-601(j) and
11-603(a) be given a different interpretation in juvenile
delinquency cases than in criminal cases?[3]
3
Both Petitioner and the State agree that “victim,” as used in Maryland’s statutory
restitution regime, should be interpreted synonymously for criminal and delinquency
(Continued…)
4
4) Did the trial court lack authority to order Petitioner to
make restitution in this case?
DISCUSSION
A trial court has discretion to order restitution when, “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 . . . .” CP § 11-
603(a)(1). Restitution may be ordered for medical and funeral expenses, direct out-of-
pocket losses, loss of earnings, and certain government expenses. See CP § 11-603(a).
“Victim” is defined as: “(1) a person who suffered death, personal injury, or property
damage or loss as a direct result of a crime or delinquent act; or, (2) if the person is
deceased, the personal representative the estate of the person.” CP § 11-601(j). The
present case turns on whether a person who was a voluntary co-participant in the crime or
delinquent act may be deemed a “victim” under CP § 11-601(j).
When interpreting statutes, we seek to ascertain and implement the intent of the
Legislature. Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573, 580, 103 A.3d 658, 663
(2014); Johnson v. Mayor & City Council of Baltimore City, 387 Md. 1, 11, 874 A.2d
439, 445 (2005); Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002). We look
first to the text of the statute. “If the language of the statute is unambiguous and clearly
consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends
(…continued)
cases. The Court of Special Appeals did not hold otherwise. We assume that to be the
case for the purposes of this opinion.
5
ordinarily and we apply the statute as written, without resort to other rules of
construction.” Lockshin v. Semsker, 412 Md. 257, 275, 987 A.2d 18, 28-29 (2010). If
ambiguity is found in the text, or if the plain meaning of the text does not comport with
the apparent purpose of the statute, we consult other indicia of legislative intent,
including the relevant statute’s legislative history, the context of the statute within the
broader legislative scheme, and the rationality of competing constructions.4 Witte, 369
Md. at 525-26, 801 A.2d at 165.
A. Text of CP § 11-601(j)
The text of CP § 11-601(j) does not eliminate expressly co-participants in criminal
or delinquent acts from being considered a “victim” for purposes of restitution. A
voluntary participant in a criminal or delinquent activity may be harmed as a direct result
of that activity. Indeed, some actions are criminalized, at least in part, for the very reason
that a participant may be harmed. See, e.g., Maryland Code (2002, 2012 Repl. Vol.),
4
In certain of our cases, we stated that our analysis ends generally if we find the
language unambiguous. Haile v. State, 431 Md. 448, 467, 66 A.3d 600, 611 (2013);
Stoddard v. State, 395 Md. 653, 662, 911 A.2d 1245, 1250 (2006). In other cases, we
stated that an investigation of the apparent purpose of the statute should accompany the
textual analysis, even if no ambiguity is found. See Williams v. Peninsula Reg’l Med.
Ctr., 440 Md. 573, 581, 103 A.3d 658, 663 (2014); Lockshin v. Semsker, 412 Md. 257,
275–76, 987 A.2d 18, 28–29 (2010); Drew v. First Guar. Mortgage Corp., 379 Md. 318,
327, 842 A.2d 1, 6 (2003). Considering the ultimate goal of determining and applying the
will of the Legislature, it is appropriate to consider other evidence of legislative intent,
even if merely to confirm that our conclusion of the unambiguous meaning of the statute
is correct. Bd. of Educ. of Baltimore Cnty. v. Zimmer-Rubert, 409 Md. 200, 214, 973
A.2d 233, 241 (2009) (“we may resort to legislative history to ensure that our plain
language interpretation is correct”).
6
Criminal Law Article, §§ 3-102 (prohibiting assisting a person to commit or attempt
suicide), 5-601 (prohibiting possession, attempts at acquisition, or administration of a
controlled dangerous substance), 10-108 (prohibiting possession and use of a tobacco
product by a minor). As the Supreme Court of the United States noted in Bond v. United
States, 134 S. Ct. 2077 (2014), however, “it is not unusual to consider the ordinary
meaning of a defined term, particularly when there is dissonance between that ordinary
meaning and the reach of the definition.”5 Id. at 2091. The General Assembly legislates,
5
The Court of Special Appeals appears to favor the principle that “when the
statute does define a term, it will be accorded the specially defined meaning rather than
its common meaning.” F.D.R. Srour P’ship v. Montgomery Cnty., 179 Md. App. 109,
129-30, 944 A.2d 1149, 1161 (2008). In F.D.R Srour, a builder challenged a Maryland
Tax Court determination that a Montgomery County development impact tax applied to
the builder’s project. The statute imposing the tax, by its terms, applied “to any
development for which an application for a building permit [was] filed on or after” a
certain date. Id. at 124, 944 A.2d at 1158. Before the effective date of the impact tax, the
builder received permits for and began constructing retaining walls to level the parcel and
make it suitable for building, but had not received permits for constructing the structures
that would occupy the parcel ultimately. Id. at 115, 944 A.2d at 1152-53. The builder was
assessed the impact tax upon applying for building permits to construct two warehouse
buildings on the property. Id., at 115, 944 A.2d at 1153.
Before the Court of Special Appeals, the builder argued that retaining walls
represented commencement of development for which the building permit application
was filed, relying on cases in which Maryland courts acknowledged the necessity and
centrality of erecting retaining walls as an initial step in paving the way for the overall
development. Id. at 125, 944 A.2d at 1159. According to the builder, because the
commencement of the retaining walls demonstrated that development had begun before
the effective date of the tax, the tax was not assessed properly against the project. The
intermediate appellate court, however, turned to the definition of “development” in the
statute, rather than the ordinary meaning of development heralded by the builder. The
relevant statute stated:
(Continued…)
7
like the United States Congress, against “the backdrop of certain unexpressed
presumptions” Id. at 2088 (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244,
248 (1991)) (internal quotation marks omitted). In such cases, ambiguity may lurk.
The definition of “victim” contained in CP § 11-601(j), assuming for the sake of
argument that it may embrace voluntary participants of criminal conduct, is at odds with
the ordinary meaning of the term. In common parlance, a person who participates
actively and voluntarily in criminal conduct, and is thereby injured in a highly
(…continued)
Development means the carrying out of any building
activity or the making of any material change in the use of
any structure or land which requires issuance of a building
permit and:
(1) Increases the number of dwelling units; or
(2) Increases the gross floor area of nonresidential
development.
Id. at 125, 944 A.2d at 1158. Because the building of retaining walls did not increase the
gross floor area of the non-residential development at issue in the case, the intermediate
appellate court held that development had not yet begun for the purpose of the tax-
authorizing statute. The Court of Special Appeals applied the statutory definition without
considering the ordinary meaning of the term “development.” After granting certiorari,
we affirmed, also without considering the ordinary meaning of “development.” F.D.R.
Srour P’ship v. Montgomery Cnty., 407 Md. 233, 252, 964 A.2d 650, 661 (2009).
The difference between the present case and F.D.R. Srour (and most cases in
which the Legislature defines statutory terms) is the stark contrast between the statutory
definition and the ordinary meaning of the term at issue here. The use of “development”
to refer only to dwelling units or increased floor space does not create the same
dissonance as using “victim” to describe a voluntary participant in criminal activity who
was injured as a result. Ambiguity is not created each time the Legislature defines a term
differently than the ordinary meaning of the term, but only where the two are difficult to
reconcile.
8
foreseeable way based on the nature of the crime, is not ordinarily a “victim.” Under the
State’s interpretation of CP § 11-601(j), however, such a person would be a “victim” for
the purposes of CP § 11-603, with presumed eligibility for restitution from his or her
accomplices and co-participants.6
We assume the General Assembly used consciously the term “victim,” rather than
some other term (such as “affected person,” “injured party,” or “harmed individual”).
“[O]ur rules of statutory construction require us to interpret the statute such that ‘no
word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or
nugatory.’” Allen v. State, 440 Md. 643, 670-71, 103 A.3d 700, 716 (2014) (quoting
Blake v. State, 395 Md. 213, 224, 909 A.2d 1020, 1026 (2006)). Although it is
conceivable that the term was intended to be merely a placeholder, it would be a curious
one. The incongruence, it seems to us, between the ordinary meaning of “victim” and a
plain meaning “take” on the definition in CP § 11-601(j) urged by the State warrants
further investigation of the intent of the General Assembly.
B. Context of CP § 11-601(j) within the Maryland Code
Title 11 of the Criminal Procedure Article of the Maryland Code, titled “Victims
and Witnesses,” of which Maryland’s restitution scheme is codified in Subtitle 6,
6
CP § 11-603(b) states: “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
subsection.” But see CP § 11-605(a)(2) (restitution need not be ordered if there are
“extenuating circumstances”); see footnote 14 below.
9
contains definitions of “victim” in other contexts. Consideration of these similar statutory
definitions casts a shadow of doubt as to the legislative intent animating CP § 11-601(j).
Subtitle 1 of the Criminal Procedure Article, pertaining to victims’ rights
throughout criminal and delinquent proceedings, does not contain an overarching
definition of “victim”; however, the term is defined for purposes of victim notification.
Criminal Procedure § 11-104(a)(2) defines “victim” as “a person who suffers actual or
threatened physical, emotional, or financial harm as a direct result of a crime or
delinquent act.” A law enforcement officer, District Court commissioner, or juvenile
intake officer who first makes contact with the so defined “victim” is required to give
him or her pamphlets summarizing the rights afforded to victims under Maryland law.
See CP § 11-104(b); CP § 11-914(9). Prosecutors are required to: (1) provide the victim
with a pamphlet highlighting post-indictment rights of victims under Maryland law; (2)
inform the victim about the possibility of restitution; and (3) notify the victim of any plea
agreement, judicial action, or proceeding that affects the interests of the victim. CP § 11-
104(c).
Subtitle 2 of Title 11 of the Criminal Procedure Article establishes a set of pretrial
rights for victims of assault and delinquent acts. For delinquent acts, the Subtitle defines
“victim” as having the “meaning stated in § 3-8A-01 of the Courts [and Judicial
Proceedings] Article.” Criminal Procedure § 11-202(a). Maryland Code (1974, 2013
Repl. Vol.), Courts and Judicial Proceedings Article, § 3-8A-01, in turn, defines “victim”
as: “(i) [a] person who suffers direct or threatened physical, emotional, or financial harm
as a result of a delinquent act; or (ii) an individual against whom an act specified in § 3-
10
8A-19.1(b) of this subtitle is committed or alleged to have been committed.” Neither
section makes a distinction between voluntary co-participants in the injurious crime and
innocent victims.
To delineate the rights held by victims of delinquent acts, CP § 11-202(b) points
also to Title 3A of the Courts and Judicial Proceedings Article. Victims are afforded a
voice in the juvenile justice system. They are kept informed of the actions taken against a
child, being notified, for example, that a petition alleging that the child was delinquent
has been filed or that the intake officer declined to authorize a petition (with an
explanation of the reasons he or she so decided). Md. Code (1974, 2013 Repl. Vol.),
Courts and Judicial Proceedings Art., § 3-8A-10(d)(4), (g)(2). Victims are able even to
participate in significant decisions about rehabilitation of the child. If the intake officer
seeks to engage in “informal adjustment” of the matter, rather than judicial action, he or
she must obtain first the permission of the victim. Md. Code (1974, 2013 Repl. Vol.),
Courts and Judicial Proceedings Art., § 3-8A-10(f). The victim also may appeal an intake
officer’s decision not to authorize the filing of a petition with the court after receiving a
complaint alleging a delinquent act. Md. Code (1974, 2013 Repl. Vol.), Courts and
Judicial Proceedings Art., § 3-8A-10(h)(1)(i).
Subtitle 5 of Title 11 of the Criminal Procedure Article provides for certain post-
sentencing procedures for defendants charged with felonies and child respondents alleged
to have committed delinquent acts that would have been felonies if committed by an
adult. See CP § 11-502. Within the Subtitle, “victim” is defined as “a person who suffers
direct or threatened physical, emotional, or financial harm as a direct result of a crime or
11
delinquent act.” CP § 11-501(b). No distinction is made for co-participants in the
criminal or delinquent activity that caused the harm.
Criminal Procedure § 11-503 obligates the State’s Attorney, at the victim’s
request, to provide to the victim notification of subsequent proceedings, including
appeals, sentence reviews, and sentence modification hearings. In this notice, the State’s
Attorney must include the date, time, location, and a description of the proceeding. CP §
11-503(d). Similarly, the Department of Public Safety and Correctional Services, at the
request of the victim, must notify the victim of a violent crime7 if: (1) the convicted
person has been found guilty of violating parole; (2) a warrant or subpoena has been
issued for the convicted person; (3) the convicted person is being considered for a
commutation, pardon, or remission of sentence; (4) the convicted person has violated
mandatory supervision; and, (5) the Department will enter into a predetermined parole
release agreement with the convicted person. CP § 11-505. Notification is also required at
the convict or delinquent child’s release from confinement. CP § 11-508.
7
Violent crime is defined as abduction; first degree arson; first, second, and third
degree burglary; kidnapping; manslaughter (except involuntary manslaughter); mayhem;
maiming; murder; rape; robbery; carjacking; first and second degree sexual offense; use
of a handgun in the commission of a felony; first degree child abuse; sexual child abuse;
first degree assault; and assault with intent to murder, rape, rob, or commit a first or
second degree sexual offense. See CP § 11-505; Maryland Code (1999, 2008 Repl. Vol.),
Correctional Services Article, § 7-101(m); Maryland Code (2002, 2012 Repl. Vol.),
Criminal Law Article, §14-101(a). Under a reading of Subtitle 5 analogous to the one the
State offers of Subtitle 6, a joint participant committing one of these crimes, who was
thereby injured, would be considered a “victim” to the same extent as the person on
whom the crime was committed.
12
Another element of Subtitle 5 provides for victims’ participation in the parole
process. According to CP § 11-505(b), victims under Subtitle 5 have the rights provided
for in Maryland Code (1999, 2008 Repl. Vol.), Correctional Services Article, §§ 7-801,
7-304.8 Under these provisions, victims may provide updated written victim impact
statements to the Maryland Parole Commission, make recommendations to the
Commission about the advisability of releasing the inmate, request that the inmate be
prohibited from contacting the victim while under supervision, and attend the parole
hearing. Id.
Subtitles 9 and 10 of Title 11 of the Criminal Procedure Article also define facially
“victim” to include voluntary participants in the crimes that caused their injuries. Both
subtitles define principally “victim” as “a person who suffers direct or threatened
physical, emotional, or financial harm as a direct result of a crime.” See CP §§ 11-910(f),
8
Maryland Code (1999, 2008 Repl. Vol.), Correctional Services Article, §§ 7-801,
7-304 define “victim” in a more narrow way:
In this section, “victim” means:
(1) an individual who suffers personal physical injury
or death as a direct result of a crime;
(2) a victim of child abuse under § 3-601 or §2-602 of
the Criminal Law Article;
(3) a victim of a violent crime;
(4) if the victim is deceased, disabled, a minor, a
designated family member or other representative of the
victim.
No distinction is made regarding participants in crimes and innocent victims.
13
11-1001(e).9 Subtitle 9 authorizes the Victim and Witness Protection and Relocation
Program. Subtitle 10 provides guidelines for treatment of victims of crimes, victims’
representatives, and witnesses. Neither subtitle excepts participants in the crimes or
delinquent conduct from their definition of victim.
The definitions of “victim” in Subtitles 1, 2, 5, 9, and 10 differ slightly from the
definition in Subtitle 6. In each of the subtitles, however, “victim” is defined in a way
that does not exclude voluntary co-participants in the criminal or delinquent activity that
9
Criminal Procedure §11-910(f) also defines as a “victim,” in addition to those
harmed by a “crime,” a defined term in CP § 11-910(c), a person harmed by “a violation
of § 21-902 of the Transportation Article.” Maryland Code (1977, 2012 Repl. Vol),
Transportation Article, § 21-902 prohibits driving under the influence or while
intoxicated by drugs or alcohol. CP § 11-910(c) defines as a “crime”:
(1) . . . conduct that is a crime under:
(i) common law;
(ii) § 109 of the Code of Public Local Laws of
Caroline County;
(iii) § 4-103 of the Code of Public Local Laws of
Carrol County;
(iv) § 8A-1 of the Code of Public Local Laws of
Talbot County; or
(v) except as provided in paragraph (2) of this
subsection, the Annotated Code.
(2) “Crime” does not include a violation of the
Transportation Article that is not punishable by a term of
confinement.
Criminal Procedure § 11-1001 defines “crime” as “conduct that is a crime under
the law of this State or federal law.” The two definitions of “victim” are the same for
purposes of our analysis.
14
caused the co-participant’s injury.10 On the other hand, if the omission by the General
Assembly from any distinguishment of voluntary co-participants in criminal or
delinquent conduct injured by that conduct from innocent victims in the definition of
“victim” for purposes of Subtitle 6 creates no room for doubt, then there would be
similarly no ambiguity in like circumstances in the other subtitles considered here. Yet,
when that assumption is tested, it yields more doubt that a plain meaning approach is
rational regarding Subtitle 6’s provisions.
We are skeptical of the proposition that the General Assembly intended voluntary
co-participants of crimes who are injured as a result of the underlying misconduct to
partake in the punishment and rehabilitation of their criminal cohorts. It is certainly
reasonable to doubt that the General Assembly intended in Subtitle 2, in the case of two
delinquent children who commit a burglary in the course of which one of the children is
injured, for example, that the injured participant would be able to block the “informal
adjustment” of the other participant, if that result was determined by the intake officer to
be in the best interests of the child and most likely to lead to rehabilitation. It is also less
than certain that, for purposes of Subtitle 5, the General Assembly intended, in the case of
two adults who commit a burglary in which one of the co-participants is injured, that the
10
Criminal Procedure § 11-601(j) characterizes as a victim only a person who
suffered death, personal injury, or property damage or loss as a result of the crime. A
person who suffers emotional injury or threatened injury is not a victim for purposes of
the definition.
15
injured burglar would be permitted to participate in the parole hearings of his or her co-
miscreant.
Practical issues arise if the definitions of “victim” in Title 11 were interpreted
literally as the State and other courts in the present case interpret CP § 11-601(j). In
Attorney Grievance Commission v. Smith, ___ Md. ___, ___ A.3d ___ (2015) (2015 WL
737412), we held recently that an Assistant State’s Attorney violated Maryland Lawyers’
Rules of Professional Conduct (“MLRPC”) 1.3, 8.4(d), and 8.4(a)11 when he was grossly
negligent in failing to communicate at all with the victim in a child sexual abuse case and
her foster mother, including providing the notifications required by CP § 11-104 and
failing to verify information (which proved to be false) he used to obtain a postponement
of the criminal case beyond the Hicks date. Id., slip op. at 17-18, 21, 24-25. As a result,
we suspended indefinitely the attorney from the practice of law in Maryland, with leave
to apply for reinstatement to our Bar in no sooner than sixty days. Id., slip op. at 27.
Although our holding that the attorney violated MLRPC 1.3 was not based solely on his
failure to notify the victim and her foster mother of the proceedings, prosecutors might
feel obligated, lest they run afoul of the MLRPC, to notify injured co-participants in
11
Maryland Lawyers’ Rule of Professional Conduct (“MLRPC”) 1.3 requires an
attorney to “act with reasonable diligence and promptness in representing a client.”
MLRPC 8.4(d) states that it is professional misconduct for a lawyer to “engage in
conduct that is prejudicial to the administration of justice.” MLRPC 8.4(a) states that “[i]t
is professional misconduct for a lawyer to . . . violate or attempt to violate the [MLRPC],
knowingly assist or induce another to do so, or do so through the acts of another.”
16
crimes as well. The practical effects of keeping criminal and delinquent participants
notified of the status of the processing of their partners-in-crime are dubious.
The only subtitle of Title 11 of the Criminal Procedure Article that exempts
explicitly participants in a crime from receiving the same benefits as innocent victims is
the criminal victims’ compensation scheme provided in Subtitle 8. The Criminal Injuries
Compensation Board provides State-funded compensation for innocent victims of certain
crimes. Opert v. Criminal Injuries Comp. Bd., 403 Md. 587, 590, 943 A.2d 1229, 1231
(2008). Comparison between the language of the compensation scheme contained in
Subtitle 8 and the restitution scheme contained in Subtitle 6 further muddies the waters
surrounding the definition of “victim” in CP § 11-601(j).
In Subtitle 8, “victim” is defined more broadly than in Subtitle 6. Criminal
Procedure § 11-801(f) states:
Victim means a person:
(1) who suffers physical injury or death as a result of a
crime or delinquent act;
(2) who suffers psychological injury as a direct result
of:
(i) a fourth degree sexual offense or a delinquent
act that would be a fourth degree sexual offense if
committed by an adult;
(ii) a felony or delinquent act that would be a
felony if committed by an adult; or
(iii) physical injury or death resulting from a crime
or delinquent act; or
(3) who suffers physical injury or death as a direct
17
result of:
(i) trying to prevent a crime or delinquent act or an
attempted crime or delinquent act from occurring in
the person’s presence;
(ii) trying to apprehend an offender who had
committed a crime or delinquent act in the person’s
presence or had committed a felony or a delinquent
act that would be a felony if committed by an adult;
or
(iii) helping a law enforcement officer in the
performance of the officer’s duties or helping a
member of a fire department who is being
obstructed from performing the member’s duties.
Criminal Procedure § 11-601(j) limits victims for purposes of restitution generally to only
those injured as a direct result of the acts that made the conduct illegal. State v.
Stachowski, 440 Md. 504, 513, 103 A.3d 618, 623 (2014) (citing Goff v. State, 387 Md.
327, 344, 875 A.2d 132, 142 (2005); Pete v. State, 384 Md. 47, 60-61, 862 A.2d 419,
426–27 (2004)).
Despite the broader definition of “victim” with regard to the operations of the
Criminal Injuries Compensation Board, persons who engage in mutual combat or
participate in a crime or delinquent act (and are injured in the course of that misconduct)
are denied compensation. Criminal Procedure § 11-810(d)(3) states explicitly that “[a]
claimant may not receive an award if: (i) [t]he victim initiated, consented to, provoked, or
unreasonably failed to avoid a physical confrontation with the offender; or (ii) the victim
was participating in a crime or delinquent act when the injury was inflicted.”
18
The explicit exclusion of criminal and delinquent participants and mutual
combatants from compensation under Subtitle 8 cuts both ways for our present purposes.
On one hand, one could read it as a policy statement of the Legislature. As so considered,
it would be logical for the General Assembly to disprove similarly of a court ordering
restitution to be paid by one participant of a crime to a co-participant. The Legislature
may have viewed excluding a co-participant from being a “victim” as so obvious that it
was axiomatic and need not be spelled-out across-the-board. By the same token, the
omission in CP § 11-810(d)(3) of such a distinction may suggest also that the Legislature
was aware that the definition of “victim” in CP § 11-601(j) (and elsewhere in Title 11 of
the Criminal Procedure Article) should be construed to include participants in the crimes
or delinquent acts that caused their injury.12 It is not difficult to imagine that the
Legislature might have decided to be more parsimonious regarding distribution of State
funds than those of convicted criminals or minors found to be delinquent. The fog of
doubt continues to shroud our inquiry. We look next to the origins of the statute in our
quest to discover the intent of the Legislature.
C. Legislative History of CP § 11-601(j)
12
The language of the present Subtitle 8 of Title 11 of the Criminal Procedure
Article comes to us from Senate Bill 4 of 1968. 1968 Maryland Laws ch. 455 (S.B. 4). As
discussed below, the precursor to CP § 11-601(j) was enacted in 1989. The language now
codified in Subtitle 8 was available for comparison during the legislative process during
which the current Subtitle 6 was enacted.
19
The definition of “victim” in CP § 11-601(j) has its genesis in Senate Bill 417 of
1989. According to the Bill: “‘Victim’: (i) [m]eans a person who suffers personal injury,
death, or property loss as a direct result of crime; and (ii) includes, in the event of a death
of a victim, the victim’s estate.” 1989 Maryland Laws ch. 487. The Bill was codified as
Maryland Code (1957, 1987 Repl. Vol.), Article 27, § 640(a)(9). Subsequent revisions of
the language were not intended to change substantively the original definition.13
Nothing in the bill file of Senate Bill 417 illuminates for our inquiry the General
Assembly’s intent regarding the definition of “victim” now codified in CP § 11-601(j).
According to the Floor Report of the Senate Judicial Proceedings Committee, Senate Bill
417 would, in the Committee’s opinion:
(1) Authorize courts to order restitution in any case in which the Criminal Injuries
Compensation Board pays benefits to the victim of a crime.
(2) Require a court to order restitution if: (a) the defendant is convicted, the court
accepts a plea of nolo contendere, or the defendant receives probation before
judgment; (b) restitution is requested by the victim or the State acting on
13
Restitution for delinquent acts was treated formerly under separate statutes. In
1997, however, Senate Bill 311 and House Bill 768 brought both criminal and juvenile
restitution under the same statute. See 1997 Maryland Laws chs. 311 (S.B. 311), 312
(H.B. 768). Other changes in the text include only switching the order of the recognized
injuries, changing the punctuation, and specifying that property damage is included, in
addition to property loss. Compare 1997 Maryland Laws chs. 311 (S.B. 311), 312 (H.B.
768), with CP § 11-601(j).
20
behalf of the victim; and (c) the victim faced one of the expenses for which
restitution or the Criminal Compensation Board paid benefits to the victim.
(3) Require a court to hold a hearing to determine if a defendant who fails to make
restitution is in contempt of court or has violated probation or parole,
including determining if the defendant became intentionally impoverished to
avoid paying restitution.
(4) Require the recording of restitution as a civil judgment which creates a lien on
the real property of the defendant in the county of the recording.
(5) Require that the Parole Board and Patuxent Institution make payment of
restitution a condition of parole or work release if restitution was ordered as
part of a sentence or probation.
(6) Exempt ordered restitution from being discharged by pardon, commutation of
sentence, or parole, unless a pardon explicitly states that the defendant was
convicted in error.
Senate Judicial Proceedings Committee, Floor Report at 1-2 (1989). The summary
did not mention making restitution more readily available, even though “victim” was not
a defined term previously.
None of the other documents in the bill file indicate that the General Assembly
intended to broaden the class of injured persons who could be considered a “victim” and
thereby become eligible for restitution. The retained documents do not make it obvious
that the Legislature intended to make restitution available in cases in which compensation
21
from the Criminal Compensation Board would be unavailable. By the same token, there
is no indication that the General Assembly intended the statutes to be congruent.
D. Policy Considerations
When “confronted with ambiguity regarding legislative intent, it is our duty to
announce a rule that we are convinced is best supported by sound jurisprudential policy
germane to the pursuit of legislative intent.” Haas v. Lockheed Martin Corp., 396 Md.
469, 493, 914 A.2d 735, 749 (2007). “In construing a statute, ‘we seek to avoid
constructions that are illogical, unreasonable, or inconsistent with common sense.’”
Maryland-Nat'l Capital Park & Planning Comm'n v. Anderson, 395 Md. 172, 182, 909
A.2d 694, 700 (2006) (quoting Frost v. State, 336 Md. 125, 137, 647 A.2d 106, 112
(1994)); accord Stickley v. State Farm Fire & Cas. Co., 431 Md. 347, 359, 65 A.3d 141,
148 (2013). Consideration of the practical outcomes of the competing understanding of
“victim” in CP § 11-601(j) supports, in our view, Petitioner’s position that the Legislature
did not intend restitution to be available for a voluntary co-participant in the criminal
conduct that led to that person’s injury.
The interpretation of CP § 11-601(j) proposed by the State would confer on
voluntary co-participants in criminal and delinquent conduct a presumption of a right to
restitution for injuries resulting from their offenses. See supra note 6. If one participant of
the mutual criminal endeavor was injured in the course of a criminal or delinquent act,
the other participant or participants could be ordered to pay restitution (whether in full or
based on a sort of comparative fault basis, as was the case here) for the injuries. Using
courts to this end seems to us absurd in concept.
22
The State argues implicitly that, because restitution is discretionary under
Maryland’s statutory regime, courts would not be required to impose restitution in a way
that places courts in an inappropriate role or facilitates criminal undertakings.14 This
misses the mark. Even if there are some conceivable rare situations in which restitution
may be ordered in favor of a person who was a co-participant in a crime that caused his
or her injury,15 we must analyze the case before us. Ordering restitution in the present
14
Criminal Procedure § 11-605 states:
(a) In general. – A court need not issue a judgment of
restitution . . . if the court finds:
(1) that the restitution obligor does not have the
ability to pay the judgment of restitution; or
(2) that there are extenuating circumstances that
make a judgment of restitution inappropriate.
(b) Refusal of restitution. – A court that refuses to
order restitution that is requested . . . shall state on the record
the reasons.
According to the State, the term “extenuating circumstances” affords trial courts
discretion to deny restitution to any victim. One possible extenuating circumstance
considered by the court, in the State’s view, might be that the “victim” was a co-
participant in the crime or delinquent act. Petitioner, relying on the legislative history of
the provision, asserts that participation in the crime or delinquent act is not one of the
factors that the Legislature intended for the court to consider.
15
United States v. Sanga, 967 F.2d 1332 (9th Cir. 1992), discussed infra Part E.,
held that, for purposes of a federal restitution statute, restitution was appropriate for a co-
conspirator in a scheme to smuggle aliens into the United States and illegally obtain their
citizenship. Id. at 1334-35. After being smuggled into the United States, the victim’s
foreign passport was confiscated by the defendant, the victim was put to work as a live-in
maid for the defendant at a substandard wage, and was coerced into having sex with the
defendant in exchange for forged documents that would allow the victim to seek
employment outside of the defendant’s home. Id. According to the U.S. Court of Appeals
(Continued…)
23
case, and other cases in which the person for whom restitution is ordered was a voluntary
and equal participant throughout the crime or delinquent act that caused the injury, would
be inappropriate.
The rehabilitative aims of restitution in juvenile cases, Robey v. State, 397 Md.
449, 458, 918 A.2d 499, 505 (2007), as well as the accompanying retributive and
compensative aims present in criminal orders of restitution, Stachowski, 440 Md. at 512,
103 A.3d at 623, may still be achieved even if courts do not have the authority to order
restitution to co-participants of the crime causing injury. In the present case, Petitioner
was accused of both second degree assault of Dylan P. and affray. Had there been a
sufficient factual proffer or other development of the factual record in support of the
second degree assault charge, the State could have sought Petitioner’s agreement to pay
restitution for the assault as part of the plea negotiations. The trial court would then have
authority to order restitution or require payment as a condition of probation. See
Stachowski, 440 Md. at 516, 103 A.3d at 625.
In the present case, however, Petitioner was found involved only in the delinquent
act of affray and did not agree to pay restitution for the assault or affray for which he was
accused. By its definition, affray requires at least two voluntary participants. Hickman v.
(…continued)
for the Ninth Circuit, the victim had become “the object of, rather than a participant in the
criminal goals of the conspirators.” Id. at 1335. Restitution to participants in crimes or
delinquent acts under Maryland’s restitution scheme may be appropriate in analogous
situations in which the purported victim’s participation has ended at a material point in
the ongoing criminal enterprise.
24
State, 193 Md. App. 238, 248, 996 A.2d 974, 980 (2010). In the State’s factual proffer,
there was no indication that Dylan P. was anything but a willing and equal participant in
the affray until the two dispositive punches were landed by Tyrell A.16
The State’s concern that unsubstantiated claims of criminal or delinquent
participation could form a basis for a denial of restitution is inapposite to the present case.
The trial judge, by finding Petitioner involved in the affray and Dylan P. 50% responsible
for what happened to him, made an affirmative factual determination that Dylan P. was a
co-participant. There is nothing in this record to suggest otherwise.
E. “Victim” under the Mandatory Victims Restitution Act of 1996
Federal courts have held that the Mandatory Victims Restitution Act of 1996
(“MVRA”), which requires restitution for certain offenses, does not authorize restitution
to co-participants in criminal endeavors.17 The federal statute defines “victim” in a
similar fashion to CP § 11-601(j). According to 18 U.S.C. § 3663A(2):
16
The Maryland Crime Victims’ Resource Center, as amicus curiae, questions the
voluntariness of Dylan P.’s participation in the fist-fight with Petitioner. The State’s
limited factual proffer, the elements of affray, and the trial judge’s determination that
Dylan P. was responsible equally for his injuries, however, are clear. In a situation where
an injured person participated unwillingly in a crime or delinquent act, the trial court may
have discretion to order restitution.
17
Because of the similarities between the Mandatory Victims Restitution Act of
1996 (“MVRA”) and the Victim and Witness Protection Act of 1982 (“VWPA”), the
analysis of whether participants in crimes can be “victims” under the statutes are the
same. United States v. Lazarenko, 624 F.3d 1247, 1249 n.2 (9th Cir. 2010). There exist,
however, other federal restitution statutes. Id. at 1248 n.1.
25
For the purposes of this section, the term “victim”
means a person directly and proximately harmed as a result of
the commission of an offense for which restitution may be
ordered including, in the case of an offense that involves as
an element a scheme, conspiracy, or pattern of criminal
activity, any person directly harmed by the defendant's
criminal conduct in the course of the scheme, conspiracy, or
pattern. In the case of a victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardian of
the victim or representative of the victim's estate, another
family member, or any other person appointed as suitable by
the court, may assume the victim’s rights under this section,
but in no event shall the defendant be named as such
representative or guardian.
Like the Maryland statute, the MVRA, on its face, does not except clearly co-
participants in crimes from being “victims” and thereby be eligible for restitution ordered
in their favor. Interpretation of the federal statute is persuasive for interpretation of
Maryland’s restitution statute.18 Federal courts have found that the practical outcomes of
18
The State, noting the mandatory nature of the MVRA and contrasting that with
the discretion invested in trial judges under Maryland’s restitution statute, argues that the
federal cases should not be persuasive. The mandatory MVRA and discretionary VWPA,
however, are treated the same by the Ninth Circuit Court of Appeals in Lazarenko. Id. at
1249 n.2.
The majority of the panel of the Court of Special Appeals here found the federal
cases unpersuasive. As the majority noted, the purpose of restitution under the MVRA is
not to punish or rehabilitate the defendant, but rather restore the losses caused by the
crime. See United States v. Hunter, 618 F.3d 1062, 1064 (9th Cir. 2010). Restitution
under Maryland’s regime aims to punish and rehabilitate the criminal or delinquent child,
as well as compensate the victim. State v. Stachowski, 440 Md. 504, 512, 103 A.3d 618,
623 (2014). Although this distinction diminishes somewhat the persuasive force of the
federal cases, it does not erase it entirely. The federal courts’ reasoning regarding the
proper role of courts and their ability to inspire public confidence remains appealing.
26
ordering restitution to participants in crimes makes it unlikely that restitution was
intended for participants in the crimes causing injury.
In United States v. Reifler, 446 F.3d 65, 70 (2d Cir. 2006), one of the defendants,
Lionel Reifler, pleaded guilty to one count of conspiracy to commit securities fraud, wire
fraud, and commercial bribery, and two counts of commercial bribery. As a result, Reifler
was sentenced to a term of imprisonment and ordered to pay $2 million in restitution to
the victims of the conspiracy. Id. Among those to whom Reifler was ordered to pay
restitution were other co-conspirators in the planned fraud. Id. at 127. On appeal, the U.S.
Court of Appeals for the Sixth Circuit vacated the restitution order and remanded the case
to the trial court for further proceedings, holding that co-conspirators could not be victims
under the MVRA. Id. at 127, 139. Although no party raised the issue of restitution
ordered to participants in the crime, the panel of the federal Court of Appeals noted that
an order entered under the MVRA that has the effect of
treating coconspirators as “victims,” and thereby requires
“restitutionary” payments to the perpetrators of the offense of
conviction, contains an error so fundamental and so adversely
reflecting on the public reputation of the judicial proceedings
that we may, and do, deal with it sua sponte.
Id. at 127.
In United States v. Lazarenko, 624 F.3d 1247 (9th Cir. 2010), a panel of the U.S.
Court of Appeals for the Ninth Circuit held that restitution cannot be ordered between co-
27
conspirators, absent exceptional circumstances. Id. at 1249.19 Pavel Lazarenko was
convicted of money laundering and conspiracy to commit money laundering at a time
when he was Prime Minister of Ukraine. Id. The federal trial court ordered Lazarenko to
pay more than $19 million in restitution to his co-conspirator, whom the trial court found
was a victim under the MVRA. Id. A jury in the main criminal case found that Lazarenko
obtained money illegally from Peter Kiritchenko as a result of extortion, but that
Kiritchenko was an active party in the conspiracy. Id. at 1250. The U.S. Court of Appeals
for the Ninth Circuit reasoned that because Kiritchenko was a major part of the
conspiracy in which he participated willingly and made no attempt to withdraw—and
from which he profited greatly—no exceptional circumstances were present. The trial
court’s order mandating restitution was vacated.20 Id. at 1252.
The Lazarenko court agreed with the Second Circuit Court of Appeals decision in
Reifler, noting that ordering restitution to a co-conspirator was a “fundamental error” and
harmed the public reputation of the courts. Id. at 1252. Even though “[u]nder the plain
text of the MVRA . . . co-conspirators have just as much right to restitution as do
innocent victims[,]” id. at 1250, the Court reasoned that Congress could not have
19
Lazarenko involved only the legality of the order of restitution. A mountain of
litigation arose from the underlying criminal conduct. See 624 F.3d at 1249 (describing
the appeals of the criminal trial and related forfeiture litigation).
20
The Court of Appeals for the Ninth Circuit noted its agreement with the Court of
Appeals for the Second Circuit that “an order of restitution to a co-conspirator is a
‘fundamental’ error that ‘adversely reflects on the public reputation of the judicial
proceedings.’” Id. at 1252 (quoting U.S. v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006)).
28
intended for federal courts to “be involved in redistributing funds among wholly guilty
co-conspirators . . . [,]” id. at 1251.
United States v. Sanga, 967 F.2d 1332 (9th Cir. 1992), discussed in Lazarenko,
demonstrates the kind of reasoning and exceptional circumstances that might allow
restitution among co-conspirators and participants of the crime causing injury. In Sanga,
the defendant, Efren Sanga, pleaded guilty to conspiracy to smuggle aliens into the
United States and obtaining unlawfully citizenship for them. Id. at 1333. As a result,
Sanga was ordered to pay restitution to Annie Quinlob, a live-in maid he smuggled into
the United States from the Philippines. Sanga argued that Quinlob was not a victim for
purposes of the Victim and Witness Protection Act of 1982 because she was a willing
participant in the conspiracy to smuggle her into the United States.21 Id. 1333-34.
Under the circumstances of Sanga, the Court of Appeals for the Ninth Circuit
found that restitution was appropriate. Quinlob, after arriving to the United States, sought
to return to the Philippines. Id. at 1334. Sanga, however, took Quinlob’s passport and
21
The VWPA defines victim similarly to the MVRA. Codified in 18 U.S.C. §
3663, the VWPA states:
For the purposes of this section, the term “victim”
means a person directly and proximately harmed as a result of
the commission of an offense for which restitution may be
ordered including, in the case of an offense that involves as
an element a scheme, conspiracy, or pattern of criminal
activity, any person directly harmed by the defendant's
criminal conduct in the course of the scheme, conspiracy, or
pattern.
29
return airplane ticket, and threatened her life if she left his employment. Id. Sanga and his
wife kept Quinlob as a servant, paying her only $150 a month for working fourteen hours
a day, seven days a week. Id. at 1334. After working as Sanga’s maid for two years,
Quinlob sought employment outside Sanga’s home. Id. at 1335. She was forced to have
sex with Sanga in exchange for a false Guam identification card. Id. The federal appellate
court noted that “[a]ny criminal complicity in the conspiracy which Quinlob might bear
stopped at the point at which she became the object of, rather than a participant in[,] the
criminal goals of the conspirators.” Id. at 1335.
The Court in Lazarenko distinguished Sanga on multiple grounds. According to
the Court:
Our decision in Sanga did not hinge solely on
Quinlob’s non-participation in the victimizing behavior. Our
analysis was informed by the fact that Quinlob was not
named as a co-conspirator in the indictment; that she had a
very minor role in the conspiracy; and that her persecution
began after the completion of her small part of the conspiracy.
Although she was technically a co-conspirator, her very small
role was unconnected to the overall conspiracy; indeed, had
she known the full extent of the conspiracy—that she would
be forced to be a slave and rape victim—she would not have
entered the conspiracy.
Here, by contrast, the government named Kiritchenko
as the primary co-conspirator in the indictment. Kiritchenko
willingly participated in most of the conspiracy, unlike in
Sanga. Indeed, Kiritchenko knowingly participated in the
conspiracy even though he knew that his own past
“victimization” was the basis of the laundered money, unlike
in Sanga, where Quinlob immediately sought to withdraw
from the conspiracy and return to the Philippines once she
discovered the true purpose of the conspiracy. And
Kiritchenko, unlike Quinlob, profited greatly from the overall
criminal enterprise. In short, Kiritchenko’s deep and willing
30
complicity in the heart of the conspiracy, following his initial
victimization, sharply distinguishes this case from Sanga.
Lazarenko, 624 F.3d at 1252 (citations omitted). It appears to us that the thrust of the
federal appellate court’s reasoning revolved around Quinlob’s and Kiritchenko’s relative
levels of voluntary participation in the criminal conduct for which restitution was
ordered. Congress could have intended plausibly restitution ordered to someone in
Quinlob’s situation, and doing so would not harm the public confidence in the courts.
Given the depth of Kiritchenko’s participation in the relevant conspiracy, however, it was
unlikely that Congress intended federal courts to order payment of restitution under those
circumstances. The concerns and approach highlighted by these federal cases are
persuasive to us.
CONCLUSION
The dissonance between the ordinary understanding of the term “victim” and its
specific definition in CP § 11-601(j) of Maryland’s restitution statute creates ambiguity.
The State’s interpretation would create a presumption that criminal adventurers may be
entitled to an order ameliorating the injurious consequences of their misdeeds through
restitution from their co-participants. See supra note 6.. It strikes us as unlikely that the
General Assembly intended such an arrangement. Absent clear legislative intent to do so,
we will not give a statute an unreasonable interpretation. We therefore hold that Title 11,
Subtitle 6 of the Criminal Procedure Article of the Maryland Code does not authorize
trial courts generally to order restitution in favor of a person who is a voluntary and
31
willing participant in the crime or delinquent activity that caused his or her injury, absent
exceptional circumstances. See the federal cases supra.
The record of the present case indicates that Dylan P. was a voluntary co-
participant. The factual proffer by the State’s Attorney, the statements of Petitioner, and
the comments by the trial judge all indicate that Dylan P. fought willingly with Petitioner.
Further, the voluntary nature of the fight is a necessary element in affray for which
Petitioner was found involved. No exceptional circumstances of the kind discussed in the
federal cases exist on the record of the present case. We therefore direct vacation of the
requirement of Petitioner’s probation that he pay restitution to Dylan P.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED
TO THAT COURT WITH DIRECTIONS TO
REMAND THE CASE TO THE CIRCUIT
COURT FOR MONTGOMERY COUNTY TO
VACATE THE CONDITION OF THE
ORDER OF PROBABATION THAT CALLS
FOR RESTITUTION TO BE PAID TO
DYLAN P., CONSISTENT WITH THIS
OPINION. MONTGOMERY COUNTY TO
PAY THE COSTS IN THIS COURT AND
THE COURT OF SPECIAL APPEALS.
32