IN RE: A.B.
No. 2590, Sept. Term, 2015
Court of Special Appeals of Maryland.
Filed: October 28, 2016
148 A.3d 371
IN RE: A.B.
No. 2590, Sept. Term, 2015
Court of Special Appeals of Maryland.
Filed: October 28, 2016
Submitted by: Julie M. Reamy (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
Submitted by: Brenda Gruss (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
Meredith, Leahy, Anne K. Albright (Specially Assigned), JJ.
Appellant, A.B., appeals from the restitution order of the Circuit Court for Charles County, sitting as a juvenile court, entered after Appellant admitted involvement in a second-degree assault that left the victim with a broken nose and jaw.
Appellant presents one question for our review:
Whether the trial court erred by failing to make any inquiry into Appellant’s ability to pay the amount of restitution ordered?
Finding no error, we shall affirm the judgment of the circuit court.
FACTUAL BACKGROUND
On October 5, 2015, the State filed a ten-count juvenile petition alleging Appellant’s involvement, along with two co-respondents, in the July 24, 2015, assault of Justin M., then 20 years old, at the St. Charles Towne Center. On November 12, 2015, pursuant to a plea agreement, Appellant admitted involvement in one count of second-degree assault. Prior to Appellant’s plea, the State indicated that it would be
As a factual basis for Appellant’s plea, the parties agreed that Appellant and two co-respondents “began to punch [Justin M.] repeatedly in a way that broke [Justin M.’s] jaw and broke his nose. [Justin M.] was taken to George Washington Hospital, in D.C., and his jaw was wired shut, and there were many other health complications.” As part of its temporary disposition, the court scheduled a restitution hearing for December 17, 2015.
At the restitution hearing, the State sought $19,470 in restitution for Justin M.’s medical expenses and lost wages, with this amount to be divided among the three respondents. After receiving evidence regarding the particulars of this sum, the court received testimony and argument from Appellant regarding his ability to pay. Disposition was then scheduled for December 30, 2015.
On December 30, 2015, the court held a disposition hearing. After reviewing the Social History Investigation and Recommendation (including an accompanying Psychological Evaluation by Dr. Keith Hannan, Ph.D.) from the Department of Juvenile Services, then confirming that neither side had any corrections to it, and then hearing from the parties, the court placed Appellant on a period of indefinite probation and ordered, among other things, that he pay $6,491.83 in restitution to Justin M. through the Department of Juvenile Services. No specific time limit or payment schedule was specified.
This timely appeal followed.
STANDARD OF REVIEW
Several standards govern our review of a juvenile court restitution order. Legal conclusions invite de novo review. First-level findings of fact are reviewed for clear error. And the decision to require restitution, as well as the amount, are reviewed for abuse of discretion. See In re Don Mc., 344 Md. 194, 201, 686 A.2d 269 (1996); In re Earl F., 208 Md.App. 269, 275, 275 n.2, 56 A.3d 553 (2012); In re Delric H., 150 Md.App. 234, 240, 819 A.2d 1117 (2003). Appellant concedes, correctly, that the proper standard of review here is abuse of discretion.
DISCUSSION
Appellant contends that the trial court erred by failing to make any inquiry into Appellant’s ability to pay the amount of restitution ordered. The State counters that Respondent did not preserve this argument and, in the alternative, that given the evidence that was presented about Appellant’s ability to pay, the court’s restitution order did not amount to an abuse of discretion. We will take up these arguments together.
Maryland’s restitution statute,
(a) Conditions for judgment of restitution—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 was 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.
(b) Right of victims to restitution—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 section.
In ordering restitution, however, “… ‘a [juvenile] court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant.’” In re Earl F., 208 Md.App. 269, 276, 56 A.3d 553 (2012) (quoting In re Don Mc., 344 Md. 194, 203, 686 A.2d 269 (1996)). Thus, where a juvenile respondent does not have the ability to pay restitution, or there are extenuating circumstances that make payment of restitution inappropriate, the juvenile court “need not” issue a judgment of restitution. See
Here, the trial court did not itself ask Appellant about his ability (or inability) to pay restitution. But it did receive ample evidence on this topic. Thus, via answers to his attorney’s questions, Appellant told the court his address, that he was 15 years old, that he attended St. Charles High School, that he was not currently working, that he had never been employed, that he owned no property or bank accounts, and had no money. Through answers to the State’s questions on cross examination, Appellant added that he lived with his aunt, grandmother, and little brother, that his aunt works, that his grandmother does not, that his aunt and grandmother pay his bills (including electricity) and for his food, and provide a roof over his head, and that they take care of him.
From the Social History and Investigation and Recommendation, the court learned that Appellant is in ninth grade and that his age, 15, “makes it difficult for him to find employment.” It also learned
and that he “is very helpful around the home and completes his chores….” It learned that Appellant spends his free time playing video games, visiting with friends, and shopping. It also learned that the gross family income of Appellant’s family is between $35,000 and $49,999, and that the family receives $347 in food stamps. From Dr. Hannan, the court learned, among other things, that Appellant has a reading disorder and earned grades ranging from A to D. Nonetheless, Dr. Hannan observed that “[e]mployment is an age-appropriate experience, which challenges teens and teaches them valuable life lessons. In addition to this, it would help improve [Appellant’s] self-esteem and provide him an income.”
That the trial court did not itself conduct the inquiry that elicited this evidence is of no consequence.
What we will examine, however, is whether Appellant properly preserved his claim that the trial court failed to consider the evidence about his ability to pay. One wishing to challenge a court’s restitution order based on inability to pay
must lodge an appropriate objection in the trial court. See Brecker v. State, 304 Md. 36, 39-42, 497 A.2d 479 (1985). Indeed,
No technical form of objection is necessary.
The purpose of these rules is plain. They allow the trial court to resolve as many issues as possible so as to avoid unnecessary appeals. Hall v. State, 119 Md.App. 377, 389-90, 705 A.2d 50 (1998).
In the instant case, to be sure, Appellant never said, either himself or through counsel, that “he had no ability to pay restitution.” Nonetheless, he did voice concern about the amount of restitution to be ordered vis-à-vis his income and his
And in terms of what is best for this client in terms of rehabilitation, I mean, I’m sure you’re saying to yourself, well, she3 should definitely pay something if, you know, so he understands the consequences of his actions. He testified, I mean, he’s a juvenile. He doesn’t have any sort of income. And, the question is, I mean, it’s … at some point does having a very large restitution judgment start to frustrate
****
I don’t have a number that would be appropriate exactly. I think … I mean, when I was that age I could barely even contemplate even, you know, having ten thousand dollars in my entire life, let alone, you know at fifteen and going on into your late teens. But, I think, you know, when you were making your determination, that is something you need to take in mind ….
(Emphasis added.) With these arguments, Appellant plainly asked the trial court to consider Appellant’s lack of income, his age, and the size of the restitution amount sought, all of which, taken together, amount to Appellant’s ability to pay. While Appellant may not have used these exact words, his arguments were certainly sufficient to alert the trial court to, and thus preserve, the issue.
With regard to whether the trial court properly considered Appellant’s ability to pay, the record below shows that the trial court was well aware of the applicable legal standards. Thus, during the December 17, 2015, restitution hearing, the trial court read from Robey v. State, 397 Md. 449, 459, 918 A.2d 499 (2007), wherein the Court reiterated the rehabilitative role of restitution in the juvenile justice system. Prior to imposing its December 30, 2015 disposition, the trial court reiterated:
[Respondent’s Counsel] is correct in that the purpose I’m told, the law says for these proceeds is to figure out a way to rehabilitate [the Respondent]. It’s not to figure out a way, primarily, to unfortunately, make [Justin M.] feel better, or for people to say that’ll teach him a lesson, or, you know, that’s what you get.
Finally, in light of the evidence regarding Appellant’s ability to pay, we cannot conclude that the restitution award was so “well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable” as to be an abuse of discretion. See North v. North, 102 Md.App. 1, 14, 648 A.2d 1025 (1994). Appellant, a 15-year-old ninth grader, had five and a half years to fulfill the restitution obligation. See
2016 Repl. Vol.),
RESTITUTION ORDER OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.