Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2002

Govt of VI v. Marsham
Precedential or Non-Precedential: Precedential

Docket No. 01-2662




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http://digitalcommons.law.villanova.edu/thirdcircuit_2002/324


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PRECEDENTIAL

       Filed June 5, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-2662

GOVERNMENT OF THE VIRGIN ISLANDS,

       Appellant

v.

WARRINGTON MARSHAM

On Appeal from the District Court of the Virgin Islands,
Appellate Division
(D.C. Cr. No. 1999/173)
District Judges: Chief Judge Honorable Raymond L.
Finch, Honorable Thomas K. Moore, and Honorable Maria
M. Cabret, Presiding Judge of the Territorial Court of the
Virgin Islands, St. Croix.

Argued Tuesday, May 14, 2002

Before: AMBRO, FUENTES and GARTH, Circuit Judg es

(Opinion Filed: June 5, 2002)




       Richard S. Davis
       Maureen P. Cormier (argued)
       Assistant Attorneys General
       Department of Justice
       48B-50C Kronpsindsens Gade
       GERS Bldg., 2d Floor
       St. Thomas, U.S. Virgin Islands
        00802

       Attorneys for Appellant

       Vincent A. Fuller, Jr. (argued)
       Medical Arts Complex, Suite 17
       P.O. Box 303300
       St. Thomas, U.S. Virgin Islands
        00803

       Attorney for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

On this appeal, after we conducted a thorough
examination of the relevant Virgin Islands statutes, we have
concluded -- contrary to the District Court of the Virgin
Islands, Appellate Division (the "Appellate Division") -- that
in sentencing a criminal defendant, there is no statutory or
decisional bar preventing restitution from being ordered
when the defendant must also serve time in prison and is
not on probation. Indeed, under 34 V.I.C. S 203(d)(3), it is
the obligation of the sentencing court to order restitution
providing, of course, that after an inquiry pursuant to the
guidelines suggested in this opinion, restitution and the
amount thereof is deemed appropriate.

I.

Defendant Warrington Marsham ("Marsham") pled guilty
to three counts of grand larceny before the Territorial Court
of the Virgin Islands (the "Territorial Court"), and was
sentenced to 27 years and $13,583.33 in restitution.
Marsham appealed his sentence to the Appellate Division.

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The three judge panel of the Appellate Division affirmed
Marsham’s sentence but vacated the order of restitution in
a judgment dated June 13, 2001. The Government of the
Virgin Islands (the "Government") appealed the Appellate
Division’s vacatur of restitution to this Court, filing a timely
notice of appeal on June 21, 2000.1

The issue presented in this appeal is whether the
Territorial Court may order a convicted defendant to pay
restitution without first sentencing him to probation. As
noted above, for the reasons that follow, we will hold that
it may. We will therefore reverse the Appellate Division’s
judgment vacating the order of restitution. In so holding,
we commend to the sentencing court that before ordering
restitution, it should engage, as a desirable (if not an
essential) practice, in the inquiry we have recognized in
Government of the Virgin Islands v. Davis, 

, 47-
48 (3d Cir. 1994), albeit we did so there in a federal
context.

II.

Between July 12, 1996 and September 8, 1996, Marsham
went on a burglary spree in the Virgin Islands. The
particulars of his crimes are not relevant to this appeal, so
they will not be repeated in detail here. Suffice it to say that
Marsham and various accomplices stole cash and goods
from six businesses totaling almost $50,000 and attempted
to rob a seventh business. Marsham was charged with
seven counts of third degree burglary, six counts of grand
larceny, one count of petty larceny and one count of
attempted burglary.

Three accomplices -- Henry Williams, Samuel Leader and
Thomas Somersall -- pled guilty, while Marsham opted for
trial before the Territorial Court. Two days into trial -- after
hearing testimony of Leader and Williams -- Marsham
made two attempts to plead guilty to lesser charges, which
the Territorial Court Judge, Ive A. Swan, rejected. Judge
Swan finally accepted Marsham’s last attempt, and
_________________________________________________________________

1. Marsham has also appealed under Court of Appeals docket number
01-3129.

                                3


Marsham pled guilty to three counts of grand larceny. In so
doing, he faced a maximum of thirty years imprisonment.

On April 21, 1999, the Territorial Court sentenced
Marsham to two consecutive 10 year sentences and one
consecutive 7 year sentence for a total of 27 years. The
Court also ordered that Marsham pay $13,583.33 in
restitution.

Marsham appealed his sentence to the Appellate Division
on April 26, 1999. In an opinion dated June 13, 2001, the
Appellate Division affirmed the 27 year sentence, but
vacated the order of restitution. The Appellate Division
remanded the case to the Territorial Court, ordering only
that the restitution order be vacated.

Both the Government and Marsham filed notices of
appeal to this Court on June 21, 2001. The matter before
us deals only with the Government’s appeal of the Appellate
Division’s vacatur of the restitution order and does not
address any of the issues raised in Marsham’s appeal,
which will be addressed by a subsequent panel of this
Court.

III.

Before addressing the merits of the Government’s appeal,
we consider whether we have jurisdiction to hear this case.
See Collinsgru v. Palmyra Bd. of Educ., 

, 229
(3d Cir. 1998) ("we have an independent obligation to
examine our jurisdiction to hear this appeal."). The
Appellate Division had jurisdiction as an appellate court
under local law, 4 V.I.C. S 33, and the Revised Organic Act,
48 U.S.C. S 1613a(a). We have jurisdiction under 28 U.S.C.
SS 1291 and 1294(3), which grant us appellate review over
final decisions from the District Court of the Virgin Islands.
Our jurisdiction rests as well on the Revised Organic Act,
48 U.S.C. S 1613a(c), which grants us appellate authority
over the Appellate Division’s final decisions on matters of
local law. The issue here is whether the Appellate Division’s
decision is a final order.

In Isidor Paiewonsky Associates, Inc. v. Sharp Properties,
Inc., 

(3d Cir. 1993), this Court noted that

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       [a] final decision is one which disposes of the whole
       subject, gives all the relief that was contemplated,
       provides with reasonable completeness, for giving effect
       to the judgment and leaves nothing to be done in the
       cause save to superintend, ministerially, the execution
       of the decree.

(internal quotations omitted) (emphasis in
original). This Court also acknowledged that the concept of
"finality" under S 1291 be given a " ‘practical rather than a
technical construction . . .’ " 

v.
Firearms Ctr., Inc., 

, 678 (3d Cir. 1986)
(internal quotations omitted)). In Marsham’s case, despite
the fact that the Appellate Division technically"remanded"
the case for resentencing, there would be nothing left for
the Territorial Court to do but to execute the Appellate
Division’s order. Since Marsham’s 27 year sentence was
affirmed in all other respects, the only action to be taken by
the Territorial Court would have been simply to vacate its
restitution order. In this way, the Appellate Division’s order
conclusively and finally determined the issue of Marsham’s
sentence and restitution, and sent the matter back simply
for a ministerial entry. Accordingly, we consider the
Appellate Division’s order as final for purposes of our
appellate jurisdiction.2

IV.

In vacating the Territorial Court’s order of restitution, the
Appellate Division relied in part upon its prior decision in
Karpouzis v. Government of the Virgin Islands , 

(D.V.I. 1999). There, the Appellate Division
interpreted two local statutes -- 5 V.I.C. SS 3711(a) and
3721 -- as requiring that "[s]entencing judges cannot order
_________________________________________________________________

2. Any other conclusion would lead to absurd results. If this Court were
to rule otherwise, the case would return to the Territorial Court to vacate
the restitution order. Once vacated, both the Government and Marsham
would then be required to appeal, again, to the same Appellate Division
on the same issues that were raised previously before it. The Appellate
Division would presumably rule the same way, and only then would the
parties be permitted to appeal to this Court. Such a process would be
nothing but an exercise in formalism and futility.

                                5


defendants convicted of Virgin Island crimes to pay
restitution for those crimes from prison." 

Consequently, the Appellate Division

       reiterate[d] and reaffirm[ed] that, under Virgin Islands
       law as presently codified, restitution may not be
       ordered unless the court sentences a defendant to
       straight probation or to no more than six months
       imprisonment followed by a period of probation.

Marsham v. Government of the Virgin Islands, Cr. No. 1999-
173, slip op. at 22 (D.V.I. Jun. 13, 2001). We review the
Appellate Division’s statutory interpretation de novo. Ray v.
Kertes, 

, 291 (3d Cir. 2002).
As an initial matter, neither S 3711(a) norS 3721
contains any language prohibiting an order of restitution for
any reason -- let alone for incarceration. They merely
authorize restitution if probation is ordered. Section 3711(a)
states, in relevant part:

       While on probation and among the conditions thereof,
       the defendant . . . may be required to make restitution
       or reparation to aggrieved parties for actual damages or
       loss caused by the offense for which conviction was
       had . . . .

5 V.I.C. S 3711(a). In addition, S 3721 states, in relevant
part:

       If a person is convicted of a crime and is otherwise
       eligible, the court, by order, may withhold sentence or
       impose sentence and stay its execution, and in either
       case place the person on probation for a stated period,
       stating in order the reasons therefor, and may impose
       any conditions of the probation which appear to be
       reasonable and appropriate to the court. If the court
       places the person on probation, the court shall require
       restitution designed to compensate the victim’s
       pecuniary loss resulting from the crime to the extent
       possible, unless the court finds there is substantial
       reason not to order restitution as a condition of
       probation.

5 V.I.C. S 3721. These statutes merely permit-- and
indeed, S 3721 requires -- restitution if and when probation

                                6


is granted, but they do not restrict the sentencing judge in
any way from ordering restitution.3

Moreover, the Virgin Island’s Victims’ Bill of Rights
clearly mandates that a judge order restitution where the
defendant’s crime involves property. 34 V.I.C. S 203(d)(3)
states:

       A victim has the right to receive restitution for
       expenses or property loss incurred as a result of a
       crime. The judge shall order restitution at every
       sentencing for a crime against person or property , or as
       a condition of probation or parole, unless the court
       finds a substantial and compelling reason not to order
       restitution. . . .

34 V.I.C. S 203(d)(3) (emphasis added). UnlikeSS 3711(a),
3721 and 4606, which authorize restitution in only specific
instances (i.e., probation or parole), S 203(d)(3) requires that
a judge issue a restitution order either at the sentencing
itself or as a condition of probation or parole where the
crime is one against person or property.

Marsham argues that the Victim’s Bill of Rights applies
only to people and not corporations because the word
"victim" is defined as a "person." See 34 V.I.C. S 202(1).
Therefore, according to Marsham, the requirement to issue
restitution under S 203(d)(3) is not applicable to him since
he burglarized only businesses. We reject this argument.

Marsham provides no clear authority supporting his
restrictive interpretation of the word "victim." On the
_________________________________________________________________

3. Similarly, the Virgin Islands parole statute does not prohibit a judge
from issuing restitution at sentencing. 5 V.I.C.S 4606 states:

       Whenever the Territorial Parole Board shall order the parole of an
       inmate, the Board, unless it finds compelling circumstances which
       would render a plan of restitution unworkable, shall order as a
       condition of parole that the parolee make restitution to the victim
       for damage or loss caused by the parolee’s crime, in an amount and
       manner specified in the Journal entry of the court that sentenced
       the inmate.

5 V.I.C. S 4606. Nothing in the language ofS 4606 prevents a court from
ordering restitution at sentencing.

                                7


contrary, the general provisions of the Virgin Islands Code
defines "person" to include businesses and corporations.
See 1 V.I.C. S 41 (defining "person" to include "corporations,
companies, associations, joint stock companies, firms,
partnerships and societies, as well as individuals."). Indeed,
the Government correctly points out that businesses and
corporations have been considered "persons" for certain
constitutional purposes, and can also be victims of crimes.4

Marsham also argues that our decision in Government of
the Virgin Islands v. Davis, 

(3d Cir. 1994),
confirms the Appellate Division’s ruling that probation must
be ordered prior to issuing restitution. In particular,
Marsham refers to the following passage:

       Davis correctly claims that probation is a prerequisite
       of an order of restitution and that if a defendant does
       not receive probation, restitution cannot be imposed.

That statement, however, is dictum and is not
binding on this, or any other, panel of this Court. In fact,
the Davis Court affirmed the lower court’s order of
restitution because the defendant was sentenced to both
incarceration and probation. As such, it was unnecessary
for our holding in Davis to address whether probation was
required prior to ordering restitution. See Calhoun v.
Yamaha Motor Corp., 

, 344 n. 9 (3d Cir. 2000)
("Insofar as this determination was not necessary to either
court’s ultimate holding, however, it properly is classified as
dictum."). Accordingly, Davis is not a bar to reversing the
Appellate Division, and does not provide an argument
supporting the Appellate Division’s analysis that restitution
is not permitted in conjunction with incarceration.
Finally, Marsham argues that the Appellate Division’s
requirement of probation before restitution makes sense
because it recognizes the fact that inmates cannot make
payments while they are in jail. However, this argument
_________________________________________________________________

4. Although Marsham does not address the language of S 203(d)(3)
providing for the ordering of restitution at every sentencing for a crime
"against person or property," we are also of the view that the inclusion
of the term "property" in the statute pertains to the crimes for which
Marsham pled guilty.

                                8


ignores the fact that not all inmates are indigent, and that
quite a few may be able to afford payments despite being
incarcerated. Indeed, it is contrary to common sense to tie
the hands of the sentencing court and prohibit it from
ordering wealthy criminals to make restitution to their
victims in every case where such defendants are sent to
jail.

For the foregoing reasons, we reject the Appellate
Division’s order refusing to permit restitution as a part of
Marsham’s sentence. In normal course, we would reverse
the Appellate Division and direct that court to reinstate
Marsham’s original sentence of $13,583.33 restitution. We
would do so because there would ordinarily be no need for
any other action. However, in a similar context, we have
strongly recommended as a better, if not essential, practice
that in ordering restitution the sentencing court should
conduct the type of inquiry mandated by 18 U.S.C.S 3663.
See 

.

Davis, where such an inquiry was made, sets forth the
principle that, among other things, restitution must be
ordered in an amount a defendant can realistically pay. We
suggest undertaking that inquiry in this and future cases
with full recognition of the fact that Marsham was
convicted for violation of Virgin Island’s law and not federal
law, and with the acknowledgment that although we deem
this a most desirable practice, a failure to initiate such an
inquiry does not at this stage constitute reversible error
unless and until our Court so holds.5
_________________________________________________________________

5. Section 3663, to which we have referred in text, not only provides for
orders of restitution when a defendant is convicted of the listed offenses
but also provides for the type of inquiry to be conducted when and if
restitution is ordered. We have drawn from S 3663 in framing the inquiry
set forth in that statute and discussed in Davis . In drawing an analogy
to S 3663 and relating the type of inquiry therein to offenses committed
in the Virgin Islands, we recognize that after Davis had been filed, a new
provision was enacted by Congress which requires that restitution be
ordered regardless of a defendant’s ability to pay where particular federal
crimes have been committed (including crimes against property). See 18
U.S.C. SS 3663A(c)(1)(A)(ii) and 3664(f)(1)(A). No similar legislation,
however, has been enacted for Virgin Islands crimes. Accordingly, in the
absence of such legislation, we prescribe a practice to be utilized where
Virgin Islands crimes are committed which would not only permit
restitution, but which would take into account the defendant’s resources
in being able to pay the restitution.

                                9


V.

Accordingly, we will reverse the Appellate Division and
direct it to vacate its order which prohibited the Territorial
Court from imposing as part of its sentence a restitution
order requiring Marsham to pay $13,583.33. We will also
direct the Appellate Division to remand Marsham’s case to
the Territorial Court so that the Territorial Court may
undertake the practice we have recommended of making an
inquiry analogous to the one specified in 18 U.S.C.S 3663
and required in Davis to determine the feasibility of its
restitution order. If that inquiry satisfies the Territorial
Court that its restitution order should remain as initially
imposed, it will be free to reinstate that sentence, including
restitution in the amount ordered of $13,583.33, or,
depending upon the results of its inquiry, it may fashion a
different appropriate restitution order or none at all.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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