Opinion
I.D. No. 0201012379.
Submitted: August 22, 2003.
Decided: November 25, 2003.
Upon Consideration of Defendant's Motion That His Discharge in Bankruptcy Precludes This Court From Ordering Restitution. Granted in Part; Denied in Part.
Marie O'Connor Graham, Esquire, Department of Justice, Dover, Delaware, for the State of Delaware.
John H. McDonald, Esquire, Office of the Public Defender, Dover, Delaware, for the Defendant.
ORDER
Introduction
Before this Court are the issues of whether restitution may be ordered when the Defendant has discharged the underlying debt in bankruptcy and whether restitution is limited by the charges to which the Defendant entered a guilty plea. This Court finds that restitution should be ordered in this case but is limited to $2,999.97.
Background
In December 2001, Piara Singh ("Defendant" or "Singh") wrote checks to his gasoline suppliers, S.J. Fuels ("S.J.") and Tri-State Gas and Oil ("Tri-State"), totaling $118,551.59, which were not paid by the bank due to insufficient funds in Singh's account. In January 2002, Singh was arrested for issuing the worthless checks. In February 2002, Singh filed a Chapter 7 petition in Bankruptcy Court, which was discharged in June 2002. Singh entered a guilty plea in January 2003 to three counts of misdemeanor theft for writing the bad checks to his gasoline suppliers. The State nolle prosequied the remaining charges against Singh. The plea agreement included a requirement to make restitution "per PSI."
In the original indictment filed on March 4, 2002, Singh was charged with five counts of Felony Issuing Bad Check in violation of Title 11 Del. C. § 900 of the Delaware Code and nine counts of Felony Theft by False Pretense in violation of Title 11 Del. C. § 843 of the Delaware Code. In November 2002, Singh was reindicted and charged with four counts of Felony Issuing Bad Check in violation of Title 11 Del. C. § 900 of the Delaware Code and nine counts of Felony Theft by False Pretenses in violation of Title 11 Del. C. § 843 of the Delaware Code.
Title 10 Del. C. § 900 of the Delaware Code provides, "Issuing a bad check is a class A misdemeanor unless the amount of the check is $1,000 or more, in which case it is a class G felony."
See Plea Agreement dated January 15, 2003.
The Investigative Services Office ("ISO") recommended that Singh be ordered to pay restitution to S.J. totaling $111,021.59 and to Tri-State totaling $7,530.00. The ISO further recommended that civil judgments against Singh be entered in these amounts on behalf of the victims.
Discussion
The United States Supreme Court addressed the issue of whether court ordered restitution could be discharged in a bankruptcy proceeding in Kelly v. Robinson. In Kelly, the Connecticut state judge ordered Kelly to make restitution, as a condition of probation after entering a plea of guilty to larceny in the second degree, for the welfare benefits she improperly received. The month after the restitution payments began, Kelly filed a voluntary petition under Chapter 7 of the Bankruptcy Code and listed her restitution obligation as a debt. The Supreme Court disallowed the discharge of the restitution obligation and held that "[11 U.S.C.] § 523(a)(7) preserves from discharge any condition a state criminal court imposes as a part of a criminal sentence." The Court further stated, "Because criminal proceedings focus on the State's interests in rehabilitation and punishment, rather than the victim's desire for compensation, we conclude that restitution orders imposed in such proceedings operate `for the benefit of' the State."
479 U.S. 36 (1986).
Id. at 50.
Id. at 53.
In this case, Singh was arrested for writing bad checks and filed a Chapter 7 bankruptcy petition the following month. He named S.J. and Tri-State as creditors and had the debts owed to them discharged in the bankruptcy proceedings. The Defense contends that because the debts were discharged in the bankruptcy, restitution of the debt cannot be ordered by this Court. However, it is important to note that Court ordered restitution is not ordered simply to make the victims whole; it is ordered to punish and rehabilitate the defendant and to prevent the defendant from benefitting from the crime committed. Title 11 Del. C. § 4206 of the Delaware Code requires the Court to order restitution when the defendant is convicted of issuing a worthless check pursuant to title 11, section 900 of the Delaware Code. The U.S. Supreme Court clearly stated that restitution ordered by a court as part of a criminal sentence may not be discharged in bankruptcy.
11 Del. C. § 4206(i)provides:
Any sentence for issuing a worthless check pursuant to § 900 of this title shall require restitution to the person to whom the check was given. For the purposes of this subsection, restitution shall mean the amount for which the check was written plus a service fee of $30 for processing a worthless check, or a fee of $50 if more than 1 check by same person was processed.
It is clear that this Court must order restitution pursuant to title 11, section 4206(i)of the Delaware Code in the sentencing of Singh for writing worthless checks. Singh's bankruptcy filing which included the debts to S.J. and Tri-State does not impact the criminal sentence which must be imposed by this Court. The fact that Singh wrote worthless checks and was convicted of doing so is sufficient for this Court to order restitution under section 4206. Restitution, although in this case paid to S.J. and Tri-State, is part of the rehabilitative and punishment process of the criminal justice system. It would be inappropriate, as held by the Supreme Court in Kelly, for the Defendant to be able to erase part of his state ordered punishment simply by filing bankruptcy. Therefore, the Court will order restitution in this case as required by Delaware law and permitted by the U.S. Supreme Court.
The next issue is whether the Court may impose restitution for the full amount of the worthless checks written to S.J. and Tri-State. The Defendant contends that the Court is limited by the charges to which he entered guilty pleas. That is, because he entered guilty pleas to three misdemeanor counts of writing bad checks for less than $1,000 each, Defendant argues that the Court is limited to ordering restitution for only $2,999.97, rather than the $118,551.59 actual total of the checks. The State contends that the Court is not limited to the charges to which the Defendant pled guilty, but rather may order restitution for the full amount of the bad checks.
The Superior Court has recently addressed the issue of whether restitution is limited to the charges to which the defendant entered guilty pleas. In State v. Hoffman, the defendant entered a plea of nolo contendere to one count of criminal mischief less than $1,000 and one count of offensive touching and agreed to pay restitution on all charged offenses. The State sought restitution for the full amount of the damages caused by the defendant, $4,560.95. However, because the defendant was charged with only two counts of criminal mischief less than $1,000 and "[t]he record [was] void of any indication that Hoffman voluntarily admitted a greater amount of liability," the Court concluded that restitution totaling no more than $1,999.98 could be ordered.
2003 Del. Super. LEXIS 192 at *7.
Id. at *7.
Previously, the Superior Court concluded that a defendant could not be ordered to make restitution unless there was a factual basis on record establishing the defendant's responsibility for the victim's damages. The Court stated that to conclude otherwise would deprive the defendant of his property without due process of law. The Court further observed
State of Delaware, in the interest of B.D., M.D., A.M., C.O., and T.O., 1981 Del. Super. LEXIS 732 at *3.
[A] defendant . . . need not have been tried and found guilty of an offense in order to establish this factual basis for his liability. If he pleads guilty to the offense, or, even if not charged, if he voluntarily admits to having committed it (e.g., as part of a plea agreement), questioning by the court on the record prior to accepting the plea or admission will establish the factual basis and satisfy the requirement.
Id. at *3.
Singh entered guilty pleas to three misdemeanor counts of writing bad checks. The plea agreement did not require him to admit having written checks for more than $999.99 each, but provided that restitution would be required based on the recommendation of the Investigative Services Office "with leave of defense to make application."
See Plea Agreement dated January 15, 2003.
Of great significance to this Court is the fact that the State has not pointed to anything on the record establishing that Singh accepted responsibility for or agreed to pay restitution for the full amount of the checks. As the previous decisions conclude, there must be a statement on the record establishing the defendant's liability for the debt before the Court may order restitution. In this case, there is no factual basis on the record establishing Singh's liability for $118,551.59. The only basis for ordering restitution is Singh's guilty pleas to writing three worthless checks for less than $1,000 each.
Based on the fact that Singh entered guilty pleas to only three misdemeanor counts of writing worthless checks and the fact that his plea agreement did not require him to pay restitution for the full amount of the checks, this Court concludes that the maximum amount of restitution which may be ordered is $2,999.97. If Singh had agreed to pay restitution on the charged offenses or if the plea agreement had specifically required Singh to pay restitution for the full amount of the checks, this Court might reach a different conclusion.
Conclusion
For the above reasons, Defendant Piara Singh is hereby ordered to pay restitution totaling $2,999.97. IT IS SO ORDERED.