Wiredu v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2291

September Term, 2013

_________________________

KWAKU WIREDU

v.

STATE OF MARYLAND

_________________________

Berger,
Nazarian,
Leahy,

JJ.

_________________________

Opinion by Nazarian, J.

_________________________

Filed: April 2, 2015
After injuring James Poleto in a car accident while impaired by alcohol, Kwaku

Wiredu was charged and convicted in the Circuit Court for Baltimore City of a number of

reckless driving charges, as well as second-degree assault, indecent exposure, and public

urination. On appeal, Mr. Wiredu argues that the circuit court erred in instructing the jury

as to second-degree assault and in imposing an improper sentence. We affirm Mr.

Wiredu’s convictions, but we agree that two elements of his sentences require correction,

and we vacate in part and remand for further (limited) proceedings for that purpose.

I. BACKGROUND

On June 29, 2012, Mr. Wiredu, a private duty nurse and a certified medical

technician, went to a friend’s house to deliver some items he had obtained during a recent

trip to Africa. Mr. Wiredu said that he drank a tall can of beer and part of another while

he was at his friend’s house. It was windy and raining—a surprise derecho had hit the state

that night—so Mr. Wiredu decided to stay at his friend’s house until the storm died down.

At approximately 1:00 a.m., Mr. Wiredu drove home after his wife called and said she was

scared because a tree had fallen in the driveway and the lights had gone out.

Mr. Wiredu drove toward home on Harford Road, a four-lane road with two

northbound lanes and two southbound lanes. Mr. Wiredu was driving in the left

southbound lane, the lane closest to the center line, when he observed a motorist operating

a motorcycle in the left northbound lane. According to Officer Ralph Horton, who was

driving behind the motorcycle, Mr. Wiredu’s silver truck “merged” into the motorcycle’s

lane and collided head-on with the motorcycle, which was being driven by Mr. Poleto. Mr.
Wiredu testified that the collision was the product of the motorcycle “swerving” into his

lane. Officer Horton’s version of the accident was corroborated by Matthew Wright, a

Baltimore City firefighter and EMT who also witnessed the accident.

As a result of the accident, Mr. Poleto landed near the curb on his back,

approximately thirty feet from his motorcycle. After caring for Mr. Poleto, Officer Horton

noticed that Mr. Wiredu had “slow speech . . . [and] couldn’t really talk[;] [h]e was falling,

like he couldn’t stand up; eyes [were] glossy and red[;] [h]e had a strong [scent] of alcohol

coming out of his mouth.” Mr. Wright observed that Mr. Wiredu’s breath “smelled of

alcohol.” Mr. Wright then watched as Mr. Wiredu exited his vehicle and “pulled out his

privates” to urinate on Harford Road. Based on these observations, Officer Horton gave

Mr. Wiredu an opportunity to take a field sobriety test, but Mr. Wiredu declined. Officer

Horton then arrested Mr. Wiredu for driving under the influence of alcohol and took him

to the police station, where Mr. Wiredu refused to take a Breathalyzer test.

Mr. Wiredu was charged with second-degree assault, causing a life-threatening

injury by motor vehicle while under the influence of alcohol, causing a life-threatening

injury by motor vehicle while impaired by alcohol, indecent exposure, public urination,

driving while under the influence of alcohol, driving while impaired by alcohol, failure to

drive right of the center lane, and negligent driving. After a jury trial, Mr. Wiredu was

acquitted of causing a life-threatening injury by motor vehicle while under the influence of

2
alcohol, but convicted of the remaining charges.1 The circuit court, on December 2, 2013,

sentenced Mr. Wiredu to ten years, all but two years suspended, for second-degree assault,

to a consecutive three years for the indecent exposure, to a consecutive two years for

causing a life threatening injury to another while impaired, and to a concurrent ten days for

public urination. In addition, the circuit court ordered Mr. Wiredu to pay $155,672 in

restitution, including $60,000 in lost wages for Ms. Poleto, who gave up her job to provide

care for her husband. This timely appeal followed.

II. DISCUSSION

Mr. Wiredu raises three arguments on appeal. First, he argues that his sentence for

second-degree assault must be vacated because, under the rule of lenity, second-degree

assault merges with causing a life-threatening injury to another by motor vehicle while

impaired by alcohol for sentencing purposes, because both convictions arose from the same

car collision involving the same victim. Second, he claims that the circuit court’s

instruction to the jury with respect to second-degree assault was deficient. Finally, he

contends that the circuit court erred in ordering him to pay restitution for Ms. Poleto’s lost

wages because the circuit court was only permitted to order restitution for Mr. Poleto’s lost

wages.2 We find that his first and third arguments have merit, but that his second was not

preserved.

1
Pursuant to the circuit court’s instructions, the jury did not return a verdict with respect
to driving while under the influence of alcohol or driving while impaired by alcohol.
2
Mr. Wiredu presents the following questions for our review:
3
A. Mr. Wiredu’s Sentence For Causing a Life-Threatening Injury
By Motor Vehicle While Impaired By Alcohol Should Have
Merged Into His Sentence For Second-Degree Assault.

Citing the rule of lenity, Mr. Wiredu asserts that the circuit court erred by sentencing

him separately for second-degree assault and for causing a life-threatening injury by motor

vehicle while impaired by alcohol. In his view, the two offenses should merge because

they “are not based on different criminal behavior.” The State argues that separate crimes

occurred, that Mr. Wiredu committed second-degree assault “when he crossed the center

line and struck Mr. Poleto’s motorcycle in a head-on collision” and his driving while

impaired offense “subsumed his entire night: [Mr.] Wiredu drinking earlier that evening;

[Mr.] Wiredu deciding to drive; [Mr.] Wiredu negligently causing the accident; [Mr.]

Wiredu demonstrating he was under the influence.” We agree with Mr. Wiredu that both

offenses arise out of the same criminal behavior. And because the Legislature did not

express the discernible intent to impose separate punishments for these crimes, the rule of

lenity compels us to resolve the doubt in Mr. Wiredu’s favor.

1. Must Mr. Wiredu’s sentence for second-degree assault be
vacated under the rule of lenity?

2. Did the trial court commit plain error when it instructed the
jury on second degree assault?

3. Did the trial court impose an illegal sentence when it
ordered Mr. Wiredu to pay restitution, a portion of which
included compensation for the victim’s wife’s lost wages?
4
“[T]he usual rule for deciding whether one criminal offense merges into another or

whether one is a lesser included offense of the other, . . . when both offenses are based on

the same act or acts, is the so-called ‘required evidence test.’” State v. Lancaster, 332 Md.

385, 391 (1993) (citations omitted). This test compares the elements of the two crimes:

The required evidence test focuses upon the elements of each
offense; if all of the elements of one offense are included in the
other offense, so that only the latter offense contains a distinct
element or distinct elements, the former merges into the latter.
Stated another way, the required evidence is that which is
minimally necessary to secure a conviction for each offense. If
each offense requires proof of a fact which the other does not,
or in other words, if each offense contains an element which
the other does not, there is no merger under the required
evidence test even though both offenses are based upon the
same act or acts. But, where only one offense requires proof
of an additional fact, so that all elements of one offense are
present in the other, and where both offenses are based on the
same act or acts, . . . merger follows.

Id. at 391-92 (citations and quotations omitted).

Here, the parties agree, and so do we, that the two crimes do not merge under the

required evidence test. “Second-degree assault is a statutory crime that encompasses the

common law crimes of assault, battery, and assault and battery.” Quansah v. State, 207

Md. App. 636, 646 (2012), cert. denied, 430 Md. 13 (2013); see also Md. Code (2002,

2012 Repl. Vol.), § 3-203(a) of the Criminal Law Article (“CL”) (“A person may not

commit an assault.”); CL § 3-201(b) (defining “assault” to mean “the crimes of assault,

battery, and assault and battery, which retain their judicially determined meanings”). Mr.

Wiredu was charged with the unintentional battery form of second-degree assault, which

5
requires the State to prove (1) contact with another; (2) which is the result of criminal

negligence; and (3) that causes an injury. See Elias v. State, 339 Md. 169, 184 (1995) (“An

unintentional battery can arise from contact that is the result of a person’s criminal

negligence that legally causes injury to another.”).

Mr. Wiredu was also charged with causing a life-threatening injury to another by

motor vehicle while impaired by alcohol. See CL § 3-211(d)(1). That charge required the

State to prove (1) negligent driving; (2) while impaired by alcohol; and (3) that causes a

life-threatening injury to another. See CL § 3-211(d)(1). Because Mr. Wiredu’s second-

degree assault conviction required proof of criminal negligence, which is not required for

a conviction under CL § 3-211(d)(1), and because his conviction under CL § 3-211(d)(1)

required proof of negligent driving, which is not required for a second-degree assault

conviction, we agree with the parties that the two offenses are not merged under the

required evidence test. See Walker v. State, 53 Md. App. 171, 200 (1982) (“Each crime

has a required element which the other does not. They are clearly not ‘the same offense.’”

(citations omitted)).

This does not end the merger inquiry, however:

[E]ven though offenses may be separate and distinct under the
required evidence test, courts occasionally find as a matter of
statutory interpretation that the Legislature did not intend,
under the circumstances involved, that a person could be
convicted of two particular offenses growing out of the same
act or transaction.

6
Brooks v. State, 284 Md. 416, 423 (1979); see also Jones v. State, 357 Md. 141, 156 (1999)

(“Under the Double Jeopardy Clause, a defendant is protected against multiple punishment

for the same conduct, unless the legislature clearly intended to impose multiple

punishments.”). When two statutory crimes arise out of the same act,

[i]t is purely a question of reading legislative intent. If the
Legislature intended two crimes arising out of a single act to
be punished separately, we defer to that legislated choice. If
the Legislature intended but a single punishment, we defer to
that legislated choice. If we are uncertain as to what the
Legislature intended, we turn to the so-called “Rule of Lenity,”
by which we give the defendant the benefit of the doubt.

Walker, 53 Md. App. at 201 (citations omitted). Accordingly, we undertake a two-step

analysis to determine whether to merge two offenses under the rule of lenity: (1) first, we

ask whether the two offenses arise out of the same criminal conduct; and (2) second, we

ask whether the Legislature has expressed an intention to impose multiple punishments.

The State urges us to find that the two offenses did not arise out of the same criminal

conduct, that Mr. Wiredu committed a second-degree assault when he inadvertently

merged his vehicle into Mr. Poleto’s lane and struck Mr. Poleto’s motorcycle in a head-on

collision, and that he committed a violation of CL § 3-211(d)(1) when he (1) consumed

alcohol; (2) decided to drive; and then (3) negligently caused the head-on collision with

Mr. Poleto. In the State’s view, the second-degree assault arises out of the accident itself

while the CL § 3-211(d)(1) conviction arises out of Mr. Wiredu’s conduct from the entire

night.

7
We disagree. The unintentional battery form of second-degree assault with which

Mr. Wiredu was charged requires more than ordinary negligence—it requires criminal

negligence. See Elias, 339 Md. at 184. “[W]hether a defendant’s actions constitute gross

criminal negligence/recklessness turns on whether those actions under all the

circumstances amounted to a disregard of the consequences which might ensue to others.”

Id. (emphasis added). As such, Mr. Wiredu’s second-degree assault conviction did not

arise when he caused a head-on collision with Mr. Poleto, but rather when he caused the

collision after he elected to drive while impaired by alcohol. It was Mr. Wiredu’s decision

to drive while impaired by alcohol that “amounted to a disregard of the consequences

which might ensue to others,” which ultimately constituted the criminal negligence

necessary to support a second-degree assault conviction. See id. If, as the State contends,

Mr. Wiredu committed a second-degree assault by negligently causing the collision, every

individual involved in a negligent car accident would face prosecution for second-degree

assault. We find, therefore, that the two offenses arose out of the same conduct, i.e., Mr.

Wiredu’s decision to drive while impaired by alcohol and negligently causing a car

accident that injured Mr. Poleto. See Quansah, 207 Md. App. at 653 (holding that a second-

degree assault conviction arose out of the same criminal conduct as a violation of a peace

order conviction where the defendant visited his former lover’s residence, in violation of a

peace order, and then physically assaulted her); Walker, 53 Md. App. at 201-02 (rejecting

argument that the jury convicted the accused of a single count of assault and another count

of attempted rape based on separate acts that occurred during a single criminal episode).

8
This takes us to the question of whether the Legislature expressed an intention to

have multiple punishments or a single punishment for these offenses. The State argues that

legislative silence bespeaks (if tacitly) an intention to punish separately, that “when two

separate criminal statutes create separate offenses based on different criminal behavior with

different criminal consequences, and there is no relevant legislative history suggesting that

the Legislature intended to prohibit the imposition of separate sentences for the two

separate crimes, the rule of lenity does not apply.” Fenwick v. State, 135 Md. App. 167,

174-75 (2000). But that presumption does not apply where, as we have found here, the

two crimes arose from the same conduct. See Quansah, 207 Md. App. at 655-56 (rejecting

the State’s reliance on Fenwick because the defendant’s “two sentences punish[ed] him for

the same ‘criminal behavior’”). We have reviewed the relevant legislative history for

evidence of affirmative intent, and we find nothing that indicates that the Legislature

intended to authorize multiple punishments for a second-degree assault and a CL § 3-

211(d)(1) violation based on a single traffic accident. Under these circumstances, when

“we are uncertain as to what the Legislature intended, we turn to the . . . ‘Rule of Lenity’

by which we give the defendant the benefit of the doubt.” Walker, 53 Md. App. at 201;

see also Quansah, 207 Md. App. at 656. Accordingly, we hold that Mr. Wiredu’s sentence

for violating CL § 3-211(d)(1) must be merged into his ten-year sentence for second-degree

assault. See generally Abeokuto v. State, 391 Md. 289, 356 (2006) (“the offense carrying

the lesser maximum penalty ordinarily merges into the offense carrying the greater

9
maximum penalty” (citation omitted)), and so we vacate that sentence and remand for

resentencing in that regard.3

B. Mr. Wiredu Did Not Preserve His Argument That The Circuit
Court Erred When It Instructed The Jury On Second-Degree
Assault.

Mr. Wiredu next challenges the circuit court’s instruction to the jury on second-

degree assault:

The Defendant is charged with the crime of second degree
assault. Second degree assault is causing offensive physical
contact to another person. In order to convict the Defendant of
assault, the State must prove one, Defendant caused offensive
physical conduct with physical harm to Mr. Poleto.

Two, the contact was the result of an intentional [or] a reckless
act of the Defendant and was not accidental and the contact
was not legally justified. Second degree assault is sometimes
called a criminal battery, and it may be intentional or
unintentional.

An unintentional battery can arise from the contact that is the
result of a person’s criminal negligence that legally causes
injury to another. A criminal battery is committed if the
contact was the result of the Defendant’s recklessness or
criminal negligence.

3
In his brief, Mr. Wiredu acknowledges that “[t]ypically, when offenses merge under the
rule of lenity, the court vacates the sentence for the crime that carries the lesser penalty,”
but he nonetheless argues that we should vacate his second-degree assault conviction
because “he would still be subject to the ten-year sentence the court imposed for second-
degree assault, which is far more time than he could have been subjected to if Mr. [Poleto]
had died.” However, as Mr. Wiredu later conceded in his reply brief, “[h]ad Mr. Poleto
died and Mr. Wiredu been convicted of vehicular manslaughter, he, admittedly, could have
received a ten-year sentence,” the same sentence he received from the circuit court for
second-degree assault. See CL § 2-209(d).
10
Whether a Defendant’s actions constitute criminal negligence
or recklessness [turns] on whether those actions under all the
circumstances amounted to a disregard of the consequences
which might ensue to others.

Mr. Wiredu claims that this instruction was inadequate because “it failed to even

utilize the term gross negligence” and “failed to accurately define what level of negligence

the jury was required to find before it could convict [him] of second-degree assault.”

However, after the circuit court instructed the jury on second-degree assault, the court

asked Mr. Wiredu’s counsel if he had any objections to the instructions, and counsel

replied: “No, Judge.” By lodging no objection, Mr. Wiredu failed to preserve his objection

to the circuit court’s instruction to the jury. See Md. Rule 4-325(e) (“No party may assign

as error the giving or the failure to give an instruction unless the party objects on the record

promptly after the court instructs the jury, stating distinctly the matter to which the party

objects and the grounds of the objection.”); Alston v. State, 414 Md. 92, 111 (2010)

(“Countless opinions of this Court have held that, when no timely objection to the jury

instructions is made in the trial court, this Court ordinarily will not review a claim of error

based on those instructions.”); see also State v. Rich, 415 Md. 567, 574 (2010) (The “rules

for preservation of issues have a salutary purpose of preventing unfairness and requiring

that all issues be raised in and decided by the trial court, and these rules must be followed

in all cases.” (citations omitted)).

We acknowledge that “we have discretion under Md. Rule 4–325(e) to address an

unpreserved issue.” Yates v. State, 202 Md. App. 700, 720 (2011), aff’d, 429 Md. 112

11
(2012); Md. Rule 4-325(e) (“An appellate court, on its own initiative or on the suggestion

of a party, may however take cognizance of any plain error in the instructions, material to

the rights of the defendant, despite a failure to object.”). But as the Court of Appeals has

explained, this discretion should rarely be exercised:

It is a discretion that appellate courts should rarely exercise, as
considerations of both fairness and judicial efficiency
ordinarily require that all challenges that a party desires to
make to a trial court's ruling, action, or conduct be presented in
the first instance to the trial court so that (1) a proper record
can be made with respect to the challenge, and (2) the other
parties and the trial judge are given an opportunity to consider
and respond to the challenge.

Chaney v. State, 397 Md. 460, 468 (2007); see also Kelly v. State, 195 Md. App. 403, 432

(2010) (“[A]ppellate review under the plain error doctrine 1) always has been, 2) still is,

and 3) will continue to be a rare, rare phenomenon.” (citations omitted)).

We decline to exercise our discretion to undertake plain error review of this jury

instruction. Among other reasons why this case does not compel this extraordinary

remedy, the instruction at issue came directly from the Maryland Pattern Jury Instructions,

MPJI-CR § 4:01(C), a fact that weighs heavily against the possibility of plain error review:

We note that the instruction that the court gave was MPJI–CR
4.17.7.2(B). Although the use of a pattern jury instruction does
not insulate a conviction against review, it is a factor in our
analysis. This Court has recommended that trial judges use the
pattern instructions. See Minger v. State, 157 Md. App. 157,
161 n. 1 (2004) (“Appellate courts in Maryland strongly favor
the use of pattern jury instructions”); Green v. State, 127 Md.
App. 758, 771 (1999) (recommending that trial judges give
pattern jury instructions). Appellant has not cited any case in
which a Maryland appellate court has held that a trial court

12
committed plain error in following this recommendation and
giving, without objection, a pattern jury instruction.

Other courts have listed the use of a pattern jury instruction as
a factor weighing against plain error review. United States v.
Roach, 502 F.3d 425, 439 (6th Cir. 2007) (“We generally
prefer the usage of the Sixth Circuit pattern jury instruction and
‘its use will, in most instances, insulate a resulting verdict’
from challenge on appeal.”) (quoting United States v. Clinton,
338 F.3d 483, 488 (6th Cir. 2003)); United States v. Reff, 479
F.3d 396, 402 (5th Cir. 2007) (“We previously have stated that
the use of an unobjected-to pattern jury instruction rarely will
rise to the level of plain error.”); Price v. State, 725 So.2d 1003,
1058 (Ala. Crim. App. 1997) (“A trial court’s following of an
accepted pattern jury instruction weighs heavily against any
finding of plain error.”), aff’d, 725 So.2d 1063 (Ala.1998).

We agree and hold that the circuit court's use of a pattern jury
instruction, without objection, weighs heavily against plain
error review of the instructions given. We decline to exercise
our discretion to engage in plain error review in this case.

Yates, 202 Md. App. at 723-24. We struggle, therefore, to see an error, let alone plain

error, that justifies the exercise of discretion to overlook the absence of an objection at trial.

C. The Circuit Court Abused Its Discretion In Ordering Mr. Wiredu
To Pay Restitution For Ms. Poleto’s Lost Wages.

Finally, Mr. Wiredu contends that the circuit court erred in ordering him to pay

restitution for Ms. Poleto’s lost wages. Before the sentencing hearing, the State prepared

a pre-sentence investigation report that included a detailed line-by-line breakdown of the

expenses Mr. Poleto incurred after Mr. Wiredu hit him (the emphases are ours):

2012 Medical (2200 miles in traveling back & forth to
hospitals, doctor appts., etc.)

$252 in parking for medical treatment

13
$4,822.11 in medical supplies, etc.
$1,200.00 in medical safety equipment (ramp on house, safety
bars in bath)(on Jan cc statement)
$3,120.54-Johns Hopkins Bill
$15,569.10-Johns Hopkins Bill

$1,674.94-Levindale Bill
$26,638.69-Total (not including any compensation for miles)

Lost Wages for 2012
[Mr. Poleto]-$15,000 (7/1/12-12/31/12)
[Ms. Poleto]-$20,000 (7/1/12-12/31/12)

2013 Medical (to date): (4490 miles traveling back & forth to
hospitals, doctors, etc.)

$4,204.70-medical bills
$458.67-Medical Supplies, etc. (January)
$815.71-Medical Supplies, etc. (February)
$943.07-Medical Supplies, etc. (March)
$219.26-Medical Supplies, etc. (April)
$217.54-Medical Supplies, etc. (May)
$272.79-Medical Supplies, etc. (June)
$546.54-Medical Supplies, etc. (July)
$254.95-Medical Supplies, etc. (August)
$273.15-Medical Supplies, etc. (September)
$231.25-Medical Supplies, etc. (October)
$400.03-Medical Supplies, etc. (November)
$182.22-Medical Supplies, etc. (December so far)
$16,550.00-PT intensive therapy program in Alabama
(October 2013)
$3,525.00-SLP intensive therapy program in NJ (September
2013)
$800.00-Out of Pocket PT home therapy- (so far)
$139.20-parking and food at hospitals
$30,034.18-Total (not including any compensation for miles)

Lost wages for 2013
[Mr. Poleto]-$24,000 (1/1/13-12/31/13)
[Ms. Poleto]-$40,000 (1/1/13-12/31/13)

14
TOTAL MEDICAL TO DATE: $56,672.87
TOTAL LOST WAGES ([Mr. Poleto]): $39,000.00
TOTAL LOST WAGES ([Ms. Poleto]): $60,000

The State submitted this expense summary to the circuit court in support of its request for

an order of restitution, and the circuit court grounded its decision to order restitution in the

specific requests:

I’m going to first approach the question of restitution. But, I
don’t – I see there are – well, I’m looking at the paper that I
was given, and it’s not clear, because there’s different figures
and different categories.

What is – what amount of restitution are you seeking? Because
there’s – they seem to overlap, or – oh, you said total medicals
to date, $56,000. Total lost wages – okay.

* * *

So, that’s $99,000 and 56. It’s $155,672; which I don’t think
would be realistic to believe that it would be recovered, unless
that someday Mr. Wiredu invents some great invention or wins
the lottery or something. Stand up, Mr. Wiredu.

* * *

[Mr.] Wiredu. I will render judgment in the amount that I
stated against you; $155,672.

Mr. Wiredu challenges only the portion of the circuit court’s award of restitution that

included Ms. Poleto’s lost wages.

Restitution in criminal cases is governed by Md. Code (2001, 2008 Repl. Vol.),

§ 11-603 of the Criminal Procedure Article (“CP”), which ties restitution to the victim’s

injuries and losses:

15
(a) A court may enter a judgment of restitution that orders a
defendant or child respondent to make restitution in addition to
any other penalty for the commission of a crime or delinquent
act, if:

(1) 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;

(2) as a direct result of the crime or delinquent act, the
victim suffered:

(i) actual medical, dental, hospital, counseling,
funeral, or burial expenses or losses;

(ii) direct out-of-pocket loss;

(iii) loss of earnings; or

(iv) expenses incurred with rehabilitation;

(3) the victim incurred medical expenses that were paid
by the Department of Health and Mental Hygiene or any
other governmental unit;

(4) a governmental unit incurred expenses in removing,
towing, transporting, preserving, storing, selling, or
destroying an abandoned vehicle as defined in § 25-201
of the Transportation Article;

(5) the Criminal Injuries Compensation Board paid
benefits to a victim; or

(6) the Department of Health and Mental Hygiene or
other governmental unit paid expenses incurred under
Subtitle 1, Part II of this title.

The decision to order restitution pursuant to CP § 11-603 and the amount lie within

the trial court’s sound discretion and we review the trial court’s decision on the abuse of

16
discretion standard. See Silver v. State, 420 Md. 415, 427 (2011). But “when a sentencing

court exceeds the limits of its statutory authority in ordering restitution[,] . . . we will vacate

the order as an illegal sentence.” Stachowski v. State, 213 Md. App. 1, 13-14 (2013), rev’d

on other grounds, 440 Md. 504 (2014); Walczak v. State, 302 Md. 422, 427-30 (1985);

Carter v. State, 193 Md. App. 193, 209 (2010).4

We are constrained to agree with Mr. Wiredu that the circuit court abused its

discretion in awarding restitution of Ms. Poleto’s lost wages. CP § 11-603 authorizes the

circuit court to award restitution for the loss of earnings that “as a direct result of the crime

or delinquent act, the victim suffered.” CP § 11-603(2)(iii) (emphasis added). And as both

parties acknowledge, CP § 11-603 does not authorize a circuit court to award restitution

for the lost earnings of others.

The State asks us to recharacterize the $60,000 in restitution for Ms. Poleto’s lost

wages as “actual medical . . . expenses or losses” and/or “expenses incurred with

rehabilitation,” which could be measured by the earnings Ms. Poleto lost while caring for

her husband. The statute does allow recovery for “actual medical, dental, hospital,

counseling, funeral, or burial expenses or losses,” CP § 11-603(a)(2)(i), or “expenses

incurred with rehabilitation.” Id., (a)(2)(iv). But those are not what the State sought in the

4
Mr. Wiredu did not object to the restitution order when he was before the circuit court,
but to the extent a restitution order qualifies as an illegal sentence, appellate review is not
precluded. See Walczak, 302 Md. at 425-27 (rejecting “the State’s argument that the
defendant’s failure to object to the restitution order precluded review on direct appeal”).
17
circuit court. The summary of the expenses Mr. Poleto incurred, which it documented in

preparation for the sentencing hearing, separated Mr. Poleto’s medical expenses from the

loss of earnings he and his wife incurred. At the bottom of the summary, the State listed

Mr. Poleto’s total medical expenses as $56,672.88, Mr. Poleto’s lost wages as $39,000.00,

and Ms. Poleto’s lost wages as $60,000; in the breakdowns for each calendar year, her lost

wages and his were detailed separately. The State asked for, and the circuit court awarded,

medical expenses of $56,672.88 (which did not include any money for Ms. Poleto’s lost

wages), and total lost wages of $99,000 ($39,000 for Mr. Poleto’s lost wages and $60,000

for his wife’s). The circuit court awarded restitution as requested, and did not treat Ms.

Poleto’s lost earnings as a part of Mr. Poleto’s medical expenses.

It would not be appropriate for us to recast on appeal the State’s request and the

circuit court’s characterization of the restitution award. The record leads inexorably to the

conclusion that the circuit court awarded restitution for Ms. Poleto’s lost earnings as the

State requested, an award that exceeded the court’s authority under CP § 11-603. See

Addison v. State, 191 Md. App. 159, 183 (2010) (“Since we conclude that [CP] § 11–603(a)

does not authorize a court to order restitution for a victim’s pain and suffering, appellant’s

sentence was illegal.”). Accordingly, we vacate the portion of the circuit court’s restitution

order requiring Mr. Wiredu to pay $60,000 for Ms. Poleto’s lost wages and remand for

entry of a corrected restitution award.

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JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED IN
PART, VACATED IN PART AND
REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. COSTS TO BE
PAID 50% BY APPELLANT AND 50% BY
MAYOR AND CITY COUNCIL OF
BALTIMORE.

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