In Re Levon A.

762 A.2d 572, 361 Md. 626, 2000 Md. LEXIS 693

• Court: Court of Appeals of Maryland
• Decided: November 17, 2000
• Docket: 10, Sept. Term, 2000
• Status: Published

Opinions

WILNER, Judge.

The issue before us is whether the parent of a child who committed the delinquent act of unauthorized use of an automobile, in violation of Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 349, may be held liable for restitution for damage done to the car if the child (1) did not participate in the initial theft or appropriation of the car, (2) did nothing, directly or indirectly, to cause the car to be damaged, and (3) was found culpable only by virtue of his having become and remained a passenger in the car knowing (or having reason to know) that it was stolen. Twice, the Court of Special Appeals answered that question in the affirmative. We disagree and shall reverse.

BACKGROUND

On the morning of October 17, 1996, H. Edward Andrews, III drove to the District Court building on North Avenue in Baltimore City. Although he locked and secured his car, when he returned less than an hour later, the vehicle was gone. Evidence presented before a juvenile court master showed that 15-year old Antonio M. took the car, apparently by breaking a window, overcoming the “Club” security device, and “popping” the ignition device. While driving the car, he saw petitioner’s son, Levon A., walking home from school and offered him a ride. Levon got into the car. Around 2:15 that afternoon, as the boys continued on their journey, following a stop at Antonio’s home, a police officer observed the vehicle and noticed that it contained the two boys who were too short to see over the dashboard and steering wheel. After learning that the car had been reported stolen, he began following it. Antonio observed the police car and made an effort to elude it. The chase ended when Antonio entered a dead-end street, attempted to make a quick turn into a private driveway, and ran into some shrubbery and a fence. Both boys attempted to flee but were apprehended. When Mr. Andrews recovered the vehicle at the police impound lot, he noticed not only the damage from the collision, to the front and right side, but also that the ignition device was missing, glass from the right passenger window littered the seat and floor, and a number of items — audio tapes, a blanket, the “Club” device used to secure the car, an ashtray with $70 in money, and a mug— were missing.

Levon was charged, as a delinquent child, with a variety of theft-related and malicious destruction offenses. Among other things, the petition sought restitution against Levon’s mother, petitioner here. At the adjudicatory hearing before the master, Levon contended that he did not realize that the vehicle had been stolen until he saw the police in pursuit. According to him, he simply accepted a ride home from school from a friend, who he believed was old enough to drive. He said that he thought the car was owned by one of Antonio’s relatives. He further noted that once they left Antonio’s house, Antonio told him that the car was stolen, but he thought Antonio was just joking. After listening to the evidence, the master concluded that only one of the eight counts was sustained — Count 4, charging unauthorized use in violation of Maryland Code, Article 27, § 349, ie, that Levon took and carried the vehicle away with the intent to deprive the owner, temporarily, of the use and possession of the property. In making his finding as to the unauthorized use, the master found that Levon had been told by Antonio that the car was stolen. The master disbelieved Levon’s assertion that he did not see the missing ignition or broken window and concluded that Levon, “at least in this matter should have known the car was stolen.” (Emphasis added.)

Evidence taken at a restitution hearing held a month later established that State Farm Insurance Company had paid $1,690 to repair the damage to the vehicle and that the value of the items taken from the car was $443. Citing In Re Jason W., 94 Md.App. 731, 619 A.2d 163, cert. granted, 331 Md. 178, 626 A.2d 967, cert. dismissed, 332 Md. 509, 632 A.2d 767 (1993), and In Re Jose S., 304 Md. 396, 499 A.2d 936 (1985), petitioner argued that she could not be held responsible for either item of damage, as Levon had not been shown to have caused any of those losses. The master responded:

“The real question is why we’re here right now talking about this money. Why? Because this young man hopped into a vehicle that he knew was stolen. That’s the reason we’re here today. No other reason. And now somebody has got to pay some money.”

After giving some consideration to petitioner’s circumstances, the master ordered that Levon pay restitution in the amount of $443 — the value of the missing items — to Mr. Andrews and gave him 18 months within which to make the payment. The master also entered a $1,690 judgment of restitution in favor of State Farm and against Levon and petitioner, jointly and severally.¹ When asked by petitioner what “causal link” the master found between Levon’s actions and the damage, the master replied that he had “already explained that.” When asked how Levon, at age 14 with no employment, was expected to pay $443 to Mr. Andrews within the 18 month period, the master indicated that he expected Levon to “use his ingenuity” and to obtain employment when he became 15.

Petitioner filed exceptions which, after a hearing, the court overruled. Relying on In Re Gloria T., 73 Md.App. 28, 532 A.2d 1095 (1987), cert. denied, 311 Md. 718, 537 A.2d 272 (1988), the court concluded that, in a case of unauthorized use, “occupying a stolen car without the permission and consent of the owner and the car sustains damages, all persons found on or about the car are, in fact, chargeable as principals and all are equally liable.”

The Court of Special Appeals agreed in part and disagreed in part with the conclusions of the juvenile court. In Re Levon A., 124 Md.App. 103, 720 A.2d 1232 (1998). It found neither Jason W. nor Gloria T. controlling, and determined that (1) restitution for the damage done to the car while Levon was a passenger in it was permissible based on Levon’s aider and abettor status under the unauthorized use statute, (2) restitution for damages caused before Levon became a passenger was not authorized, and (3) in light of the evidence regarding petitioner’s financial circumstances and ability to pay, the court abused its discretion in requiring her to pay for all of the losses. In that regard, the appellate court held that “[cjlearly, Ms. A. had no ability to comply with this particular restitution order, unless she sacrificed the well being of her children.” Id. at 147, 720 A.2d at 1253.

The court noted that the unauthorized use statute, Article 27, § 349, made aiders and abettors equally guilty with the principal perpetrator and thus “equally liable for the full range of penalties prescribed by the statute.” Id. at 139, 720 A.2d at 1249. One of the penalties provided for in § 349 was that the offender was to restore the property taken, or, if unable to do so, pay the owner the full value of it. Accordingly, the court held that the Juvenile Court “lawfully awarded restitution for those damages caused during or as a result of the unauthorized use.” Id.

The problem noted by the appellate court was that part of the restitution was for damages that occurred as a result of the initial theft, in which Levon had no part, rather than the unauthorized use. In particular, the court referred to the cost of repairing the ignition and the broken glass, which arose from the initial theft, as well as the value of the items of personalty “that most likely were damaged or stolen in connection with the theft.” Id. at 136-37, 720 A.2d at 1248. As to those elements, the court held that, “[g]iven the finding that Levon did not commit the theft, we agree with appellants that they cannot be ordered to pay restitution for damages directly resulting from the theft.” Id. at 137, 720 A.2d at 1248. Because, in its restitution judgment, the juvenile court did not differentiate between damages sustained in connection with the theft and those which, in the appellate court’s view, occurred during or as a result of the unauthorized use, the Court of Special Appeals vacated the order of restitution and remanded for the juvenile court (1) to exclude any damages relating solely to the theft, and (2) to consider an order of restitution commensurate with petitioner’s ability to pay. Id. at 141, 147, 720 A.2d at 1250, 1253.

At the hearing on remand, the State conceded that $498 of the $1,690 claimed by State Farm related to damage arising solely from the theft, leaving the insurance claim at $1,192. It later agreed to reduce the $443 restitution order running in favor of Mr. Andrews by $80. Petitioner moved to dismiss the entire claim on the ground that the State had failed to prove any causal connection between Levon’s conduct and State Farm’s claim. The court denied the motion, believing that the Court of Special Appeals had already rejected that argument and had remanded the case for the limited purpose of excising from the restitution order those items arising solely from the theft and determining the extent to which petitioner was able to afford to pay restitution. Evidence was then offered regarding petitioner’s financial circumstances. In its final ruling, the court left the restitution order against Levon intact, concluding that the only issue before it dealt with the restitution to be paid by petitioner. In that regard, it concluded that she could afford to pay no more than $750 and, on June 16, 1999, entered a restitution judgment against her and in favor of Mr. Andrews (rather than State Farm) for $750.

Petitioner and Levon again appealed. They made no complaint about the new calculations or the amount of the restitution, but simply asked the Court of Special Appeals to reconsider its earlier ruling. That, the court refused to do, and, in the absence of any other alleged error, affirmed the judgment. We granted certiorari to determine the broader issue twice raised in both the trial and appellate courts — -whether any restitution order against petitioner is permissible under the circumstances of this case.

DISCUSSION

Preliminary Issues

Before discussing the substantive issues in the case, there are two preliminary matters worthy of comment.

First, there seems to be some ambiguity in the record as to who, in the end, has been ordered to pay what to whom. As we indicated, the court initially, in March, 1997, directed Levon to pay $443 to Mr. Andrews, over a period of 18 months, and entered a judgment against him and his mother and in favor of State Farm for $1,690. In September, 1997, a “corrected order” was filed that directed Levon and petitioner to pay the $443 to Mr. Andrews and made the $1,690 judgment in favor of State Farm run against only petitioner. On May 20, 1999, following the hearing on remand, the court stated that the restitution order against Levon, for $443, would remain intact, but it entered a new judgment in the amount of $750 against petitioner but in favor of petitioner. On June 16, 1999, the court corrected that obvious error but committed another when it made the $750 judgment against petitioner run in favor of Mr. Andrews, rather than State Farm.

No one has complained about that aspect of the order. We cannot help but observe, however, that the loss claimed by Mr. Andrews never exceeded $443 and that, in conformance with the first mandate of the Court of Special Appeals, the State stipulated to an $80 reduction in that amount. On its face, without regard to any other error, the final judgment entered was incorrect. The apparent intent was to leave the restitution order against Levon, in favor of Mr. Andrews, alone, and to deal only with the judgment against petitioner in favor of State Farm. The final order in the case, however, has the judgment for $750 running in favor of Mr. Andrews. For the reasons to follow, that “glitch” will become moot.

The second preliminary matter is a procedural one raised by the State. It notes, correctly, that the substantive determination that restitution was permissible for damage and losses that occurred after Levon became a passenger in the car was made by the Court of Special Appeals in the first appeal and that petitioner never sought either reconsideration of that ruling in accordance with Maryland Rule 8-605 or review by this Court through a petition for certiorari. In the second appeal, it advises, petitioner did not challenge any new finding made by the juvenile court upon remand, but simply asked the Court of Special Appeals to reconsider and revise the ruling made in the first appeal. It is inappropriate, the State claims, for this Court, on review of the second decision by the Court of Special Appeals, to deal with the substantive issue raised in the first appeal. Essentially, the State is invoking the “law of the case” doctrine.

We dealt with this issue in Loveday v. State, 296 Md. 226, 462 A.2d 58 (1983), which the State acknowledges but seeks to distinguish. In Loveday, a defendant, facing the prospect of a mandatory 25-year sentence if convicted of the pending charges, was offered a plea bargain under which, in return for a plea of guilty, the State would not file the notice requisite to the mandatory sentence and would make no recommendation as to sentence. The probable sentence under that circumstance was expected to be 10 years. Loveday rejected the offer, and, upon his trial and conviction, the State filed the notice and sought the mandatory 25-year sentence, which the trial court declined to impose. On the State’s appeal, the Court of Special Appeals rejected Loveday’s argument that imposition of the mandatory sentence after the State had offered considerably better terms would violate his right to due process under the 14th Amendment to the U.S. Constitution and remanded for resentencing. State v. Loveday, 48 Md.App. 478, 427 A.2d 1087 (1981). The trial court then imposed the 25-year sentence, whereupon Loveday appealed, arguing that the sentence violated his right to due process under the Maryland Constitution. Treating the issue raised in the second appeal as essentially the same as that adjudicated in the first appeal, the appellate court applied the “law of the case” doctrine and affirmed.

We granted certiorari to review the substantive issue but dealt first with whether the “law of the case” doctrine precluded such review in this Court. We noted that, prior to the creation of the intermediate appellate court, when all appeals of right were heard by this Court, we had “refused to allow successive appeals in a case that posited the same questions that had been previously decided by this Court in a prior appeal of the same case” and had “forbade the parties, on any subsequent appeal of the same case, to raise any question that could have been raised in the previous appeal on the record as it existed in the trial court.” Loveday, supra, 296 Md. at 229, 462 A.2d at 59. Without disturbing that principle as it would apply in the intermediate appellate court, we concluded that “the law of the case doctrine does not apply to this court which is required to review judgments of subordinate courts.” Id. at 234, 462 A.2d at 61. Thus, although, in a second appeal, the Court of Special Appeals might properly apply the “law of the case” doctrine and decline to review an issue that was, or could have been, raised in an earlier appeal in the same case, that doctrine would not preclude this Court, in the second appeal, from reviewing that issue. To rule otherwise, we noted, would thwart this Court’s statutory authority to review the judgments of the Court of Special Appeals.

The State seeks to distinguish Loveday on the ground that the issue raised in the second appeal in that case (State due process) was different from the one raised in the first appeal (Federal due process). That does not distinguish the case. Our right to review the judgment of the intermediate appellate court exists whether the issue raised in the second appeal was the same as or different from that raised in the first appeal.

Liability for Restitution

At different times during this litigation, two sources of authority for the restitution judgments have been invoked— the unauthorized use statute itself, Article 27, § 349, and the restitution law set forth in Article 27, § 808, as it existed when the conduct at issue occurred.² At the State’s urging, the Court of Special Appeals effectively merged or “piggy-backed” those provisions to provide a basis for the restitution ordered in this case. They cannot be so combined.

Article 27, § 349 provides, in relevant part, that any person, including any aider or abettor, who enters upon the premises of another and, against the other’s will and consent, takes and carries away a motor vehicle or other property, out of the other’s custody or use, “shall upon conviction thereof in any of the courts of this State having criminal jurisdiction be adjudged guilty of a misdemeanor, and shall restore the property so taken and carried away, or, if unable to do so, shall pay to the owner or owners the full value thereof’ and is subject to a fine of between $50 and $100 and imprisonment for between six months and four years. (Emphasis added.)

Section 808, dealing specifically with restitution that may be ordered by a juvenile court, provided, in relevant part, that the juvenile court may enter a judgment of restitution against a child, the parent of a child, or both, “in any case in which the court finds a child has committed a delinquent act and during or as a result of the commission of that delinquent act has ... [sjtolen, damaged, destroyed, converted, unlawfully obtained, or substantially decreased the value of the property of anotherr."

In approving the restitution judgment in this case, the Court of Special Appeals turned first to § 349 and concluded that a person is guilty of unauthorized use of a motor vehicle if, knowing that the car has been stolen, the person participates in the continued use of it after the initial taking, as that continued participation manifests an intent to deprive the owner of possession of the vehicle. That is a correct statement. Anello v. State, 201 Md. 164, 167-68, 93 A.2d 71, 72 (1952); Spence v. State, 224 Md. 17, 19, 165 A.2d 917, 918 (1960). The appellate court then noted the further provision in § 349 requiring a violator to “restore the property so taken and carried away” or, if unable to do so “shall pay the owner or owners the full value thereof’ and held that “[o]n this basis, the juvenile court lawfully awarded restitution for those damages caused during or as a result of the unauthorized use.” Levon A., supra, 124 Md.App. at 139, 720 A.2d at 1249. That is where the court went astray.

There is no doubt that, based on his participation as a passenger in the car, with knowledge that it was stolen, Levon committed a violation of § 349 and thus committed a delinquent act. Had he been an adult, charged and convicted in criminal court, he could have been required, as one jointly liable with Antonio, to pay to Mr. Andrews the full value of the property taken and carried away. That restoration/restitution provision does not apply to the situation at hand, however, for at least three reasons. For one thing, it requires a “conviction” in a court “having criminal jurisdiction.” A finding that a juvenile committed a delinquent act is not a conviction, and a juvenile court does not have criminal jurisdiction. See In Re Victor B., 336 Md. 85, 92-94, 646 A.2d 1012, 1015-16 (1994). Moreover, the restoration or payment provision in § 349 applies only to the person or persons who commit the criminal act and does not authorize, or even purport to authorize, a restitution order against the parents of such persons. Finally, the restoration or payment authorized by § 349 is to be made “to the owner or owners,” and, to the extent that, despite its actual wording, the judgment in this case was intended to run in favor of State Farm, rather than Mr. Andrews, it would not be authorized by § 349. Section 349 does not provide a self-contained basis for a restitution order by a juvenile court against the parent of a child found only to have committed a delinquent act.

Nor did § 808. As the Court of Special Appeals pointed out in In Re Jason W., supra, 94 Md.App. 731, 736-37, 619 A.2d 163, 166:

“The statute is worded in the active voice. In order to enter a restitution judgment, the court must find that ‘a child has committed a delinquent act and during or as a result of the commission of that delinquent act has ... damaged, destroyed ... or substantially decreased the value of the property of another.... ’ As worded, three findings (and evidence to justify them) are required to support a restitution judgment: (1) that the child committed a delinquent act; (2) that the child damaged, destroyed, or decreased the value of another’s property; and (3) that such damage, destruction, or diminution in value caused by the child occurred during or as a result of the delinquent act.”

(Emphasis added.)

Upon that interpretation, the court in Jason W. went on to conclude that “[t]he statute does not allow restitution simply because property damage results from a delinquent act. It requires that the child have caused that damage.” Id. at 737, 619 A.2d at 166.

Jason W. is a case that is close in point. A sheriff noticed a motorcycle being driven on a public highway without registration tags and, together with another sheriff, gave chase. The cyclist, Jason W., sped up, went through a school yard, and began driving down a path through some woods, with the two sheriffs vehicles in pursuit. One of the sheriffs vehicles was a standard police cruiser, and, while driving it through the woods, the sheriff collided with a tree, causing extensive damage to the car. Jason was captured and charged, in juvenile court, with a variety of offenses. Through a plea agreement, he was found delinquent with respect to only one of them — operating an unregistered vehicle. Upon that finding, Jason and his mother were ordered to pay restitution for the damage done to the sheriffs car. The Court of Special Appeals reversed, noting that (1) Jason’s conduct did not damage the sheriffs car, and (2) while the damage might be said to have resulted from Jason’s fleeing and eluding the officers, it did not ensue from his merely driving an unregistered vehicle, which was the only delinquent act found. Id.

The holding in Jason W. is consistent with the decision of this Court in In Re Jose S., supra, 304 Md. 396, 499 A.2d 936 (1985). There, two boys, Jose and Samuel, broke into a home and stole goods worth $829. They were each charged in juvenile court with daytime housebreaking, breaking and entering, and theft of goods of a value under $300. Samuel admitted to the breaking and entering, and all other charges against him were dismissed. Jose admitted to theft of goods of a value under $300, and all other charges against him were dismissed. The court then entered restitution judgments against Samuel and his mother for $414.50 (one-half of the value of the goods taken) and against Jose and his mother, in a like amount. We reversed the judgment against Samuel and his mother and directed a modification of the judgment against Jose and his mother. As to Samuel, we noted that there was no evidence that he stole anything; the only charge, and the only evidence, dealt with his breaking into the house. We agreed with his mother’s contention that “the court could not order restitution against her as the parent of Samuel B. without first finding that her child had ‘stolen, damaged, or destroyed’ the property.” Id. at 401, 499 A.2d at 939. For similar reasons, we concluded that the judgment against Jose and his mother could not exceed $300, for the evidence failed to establish that anything more than that was taken by Jose. Id. at 400, 499 A.2d at 938.

The State urges that the damage to the Andrews vehicle “was the direct result of Levon A.’s unauthorized use of that vehicle,” but that is simply not so. The damage (other than that resulting from the process of breaking into and stealing the car, which has already been excluded from consideration) resulted entirely from the collision with the shrubbery and the fence. There is no evidence that Levon, as a passive passenger in the car, had anything to do with that collision. There is nothing to show that he urged Antonio on, that he directed Antonio’s actions, that he ever controlled, or attempted to control, the vehicle, or that he did anything to cause Antonio to drive into the obstructions. Had there been any such evidence, the court might properly have found a causal connection between Levon’s delinquent behavior and the damage. See In Re Gloria T., supra, 73 Md.App. 28, 532 A.2d 1095, cert. denied, 311 Md. 718, 537 A.2d 272 (1988). In the absence of that evidence, however, there was no basis for the restitution judgment against petitioner.

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENT OF RESTITUTION AGAINST PETITIONER; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.

RAKER and CATHELL, JJ., dissent.

1 . The docket entry for March 25, 1997 — the date of the restitution hearing — shows that the restitution order pertaining to the $443 ran only against Levon but that the judgment of restitution for $1,690 in favor of State Farm Insurance Co. was against both Levon and petitioner. A docket entry for September 2, 1997 records a "Corrected court order” showing the reverse — that the restitution order for $443 was against Levon and petitioner and that the judgment for $1,690 was against petitioner alone.

2 . The conduct leading to the charges against Levon occurred on October 17, 1996. At that time, the provisions allowing restitution against a child and the child’s parents lor damage caused as a result of delinquent acts committed by the child were codified in § 808 of Article 27. In 1997, those provisions were substantially rewritten and placed in § 807. We agree with the parties that this case must be decided on the basis of the law stated in § 808 as it existed in October, 1996.