Goff v. State

GREENE, J. On April 25, 2003, the State charged James P. Goff with a number of crimes, including, inter alia, burglary, assault, trespass, and malicious destruction of property, resulting from an incident occurring on February 28, 2003, at the apartment of Patrick Hadley. On August 19, 2003, Mr. Goff entered a plea of not guilty in the Circuit Court for Carroll County and proceeded on an agreed statement of facts. The court found him guilty of second-degree assault and trespass. 1 The State dismissed the remaining counts. The court ordered Mr. Goff to pay a fine in the amount of $150.00 for the trespass.

In addition, the court sentenced Mr. Goff to eighteen-months incarceration for the assault, suspended that sentence, and placed him on two years of supervised probation. The court also ordered, as a condition of probation, that Mr. Goff pay restitution in an amount to be determined. Months later, the court held a hearing on restitution, and on February 17, 2004, ordered Mr. Goff to pay $2,156.00 to Patrick Hadley, the victim of the assault. Mr. Goff appealed to the Court of Special Appeals.

On December 17, 2004, before the case was heard in the Court of Special Appeals, we granted certiorari on our own initiative. Goff v. State, 384 Md. 448 , 863 A.2d 997 (2004). The only question before us is whether the Circuit Court’s order of restitution was proper. We hold that the court did not err by ordering Mr. Goff to pay restitution to the victim of ³³² the assault because the damage to property was a direct result of the assault and the victim was responsible for repairing the property.

FACTS As previously noted, the parties proceeded on an agreed statement of facts, which included, in pertinent part, the following: Your Honor, had the State proceeded to trial, we would have also called Officer Warehime and he would have testified that, on Friday, February 28th of 2003, at approximately 12:44 a.m., he responded to the address of 3181 Main Street, in Manchester, Carroll County, State of Maryland, for an assault in progress. Upon arrival, he observed the Defendant, James Paul Goff, standing on the porch of that address. Previously, Goff had been advised that he was not to be at that home and had been notified by the lessee, who is Patrick Hadley, not to come onto the property. Officer Warehime had been present ... and had advised the Defendant that he would be arrested next time the Officer had seen the Defendant at that address.

At that time, Officer Warehime spoke with Patrick Michael Hadley, the lessee of the property. Hadley stated that Goff knocked down the door and demanded to see Hadley’s then girlfriend, Dana Karen Barnes, also known as Dana Smith. Hadley then stated that he told Goff to go away. Goff then forced his way into his apartment ... and began to strike Hadley repeatedly with a closed fist.

Hadley further stated that Goff was pushing him around the living room and that they ended up in the bathroom. Hadley stated that Goff had pinned him in the shower where he struck him several times in the face. Officer Warehime saw that Hadley had a bloody face and that the shower insert in the bathroom had been broken due to the assault. (Emphasis added.) Before reciting those facts, the State informed the court that, “[o]ur recommendation would be to ³³³ defer to the [c]ourt, ask for restitution for the shower, and ask for no contact with Patrick Hadley or Dana Smith.... ” In addition, after the court found Mr. Goff guilty, defense counsel noted that Mr. Goff was “willing to make restitution.

I’m assuming at some point the State ... will get us a figure on that[.] [I]t was one of these shower inserts that got cracked and we need ... some sort of statement on that.” The trial judge ordered that, “[djefendant is to pay restitution in an amount to be determined. I’ll give the State thirty days to submit restitution figures. In the event that the figure is disputed, of course, we can have a hearing.” The parties disagreed about the figure and on February 11, 2004, the court held a hearing on restitution. Defense counsel noted at the start of the hearing that Mr. Goff agreed to pay restitution, “with the understanding that it was five hundred dollars, or less.” The State called Mr. Hadley to the stand who testified that he rented the apartment in which the assault took place.

Mr. Hadley described the damage to the shower as follows: There’s [sic] numerous holes and cracks all through the side of the shower. The panels that are glued on to either side of the shower that are like two by two, they’ve popped off and I cannot reattach them. I have — right now, to keep the water damage down, I have duct tape and trash bags hanging over the holes to keep the water from going through the shower. He also testified that the damage occurred as a result of the fight and that he had not yet fixed the shower because he did not have the money to do so.

The State introduced an estimate of the cost to replace the shower in the amount of $2,156, obtained by Mr. Hadley from Catón Plumbing. The written estimate, signed by an estimator named Kevin Ohl, did not differentiate between costs of labor and materials but did provide a list of materials needed and work expected to be completed. Mr. Hadley testified that he obtained the estimate from Catón Plumbing because he worked for that company and it ³³⁴ was convenient. 2 He also testified that he reported the shower damage to his landlord, who did not replace it because he considered it Mr. Hadley’s responsibility. Mr. Goff also testified at the hearing on February 11.

He stated that he earned $14.00 per hour as a carpenter and that he could not afford to pay the estimated cost to replace the shower. Mr. Goff attempted to testify about the cost of a fiberglass shower wall kit that he saw at Lowe’s. The State objected and the court continued the hearing to give Mr. Goff an opportunity to obtain his own written estimate of the cost to replace the shower. When the hearing resumed on February 17, Mr. Goff testified that he had obtained an estimate from Lowe’s for the cost of a “surround kit.” Lowe’s estimated the cost of the kit as $111.30.

Mr. Goff also testified that he obtained an estimate for the cost of repairing the shower from a contractor, Mr. Blizzard of “B. D. Blizzard Construction,” in the total amount of $513.00, including $88.00 for the shower kit and $425.00 for labor. The estimate obtained from Mr. Blizzard was handwritten on a generic invoice, without letterhead, and was signed by Mr. Blizzard. Mr. Goff admitted on cross-examination that he did not know if Mr. Blizzard was a licensed plumber. The State called Kevin Ohl as a rebuttal witness.

He testified that he was a plumbing estimator for Catón Plumbing and that he had held that position for ten years. He also testified that the estimate from Lowe’s was for a “shower and wall set” and that there was no listing of a base or the actual wall kit itself. 3 He also mentioned that the Lowe’s estimate ³³⁵ did not account for replacement of the green wall board or replacement of the drain and some of the piping. In view of the fact that the shower was very old, Mr. Ohl testified that he expected the repair to include stripping the shower down to the studs, putting up waterproof sheetrock, and then installing the new shower. 4 He testified that he believed it would take ten to twelve hours to complete the project. Regarding the estimate provided by Mr. Blizzard, Mr. Ohl testified that it did not account for a sufficient amount of hours of work to replace the shower. 5 In addition, Mr. Ohl testified that a competitive hourly rate for plumbing work is $122.00 per hour and that the Blizzard estimate included an hourly rate of approximately $50.00 per hour.

Moreover, the Blizzard estimate contained no mark up on the supplies needed to replace the shower. Mr. Ohl concluded that Mr. Blizzard would be “losing a lot money” if he completed the work at the price estimated. 6 ³³⁶ At the conclusion of the hearing, the trial judge ordered restitution in the amount of $2,156.00 and made the following remarks: Well, I guess the thing is, I think there was some testimony-last week that the thing simply could not be repaired. Numerous cracks and holes, which were a direct result of the incident which led to Mr. Goff being convicted. H* * * Here what we have is an item which was probably, prior to the incident, perfectly functional and after the incident, it’s not functional ... it’s not the value of the shower stall here, it’s the value of the materials and services needed to replace it because it’s no longer functional and I think the testimony, the last time, was adequate to establish that.

So, then, the issue is, what is a fair amount of restitution, assuming that the item has to be replaced ... it is the burden of the Defendant to show that the suggested charges by the State are not fair and reasonable and that I think the Defendant has — has not met his burden. I think that, based upon what we — we have heard over both hearings, I — I think that, although it sounds like a lot of money, anytime you have damage to something in a home which is going to require some degree of labor, it doesn’t take very long to run up a — a total, which is probably going to be more than the home owner expects. Now, one of the questions that I had in this case was, is the tenant — and everybody seems to be operating under the assumption that — in a situation like this, that it’s necessarily the tenant’s responsibility — well, the landlord appears to believe that it’s the tenant’s responsibility. Actually, I think there’s an argument that can be made that it’s not the tenant who is really the victim; it’s the landlord who — who’s the victim, since he’s the property owner and anytime the property owner has damage to his property — of course, I can understand the landlord taking the position saying, well, I’m not the one that has to use the shower.

I’ll just lay it in the lap of the tenant and let him collect on my behalf. And, ³³⁷ I guess I can’t argue with the logic, but I think there is certainly an argument that can be made that perhaps the landlord is responsible for repairing it and perhaps he’s the one who’s entitled to restitution. Mr. Hadley seems to take the position that he believes it’s his responsibility and that he ought to, you know, take care of it. One thing that concerned me, quite honestly, is suppose the money is paid by Mr. Goff and the property never gets repaired.

Suppose Mr. Hadley moves out at some point in time and the property never is repaired and then is the — could the landlord come back, potentially sue Mr. Goff as a person who perpetrated this and Mr. Goff would have paid the money in restitution to Mr. Hadley. So, I’m assuming that any money paid here will be used for the intended purpose.... I would not be happy to learn that that didn’t happen.... I think the — the estimate, taking everything in consideration provided at the last hearing is — is fair and reasonable and I order restitution in that amount [$2,156.00].

The court ordered payment of the restitution through the Division of Parole and Probation and full payment no later than October 20, 2004. STANDARD OF REVIEW Md. Rule 8-131(c) states: When an action has been tried without a jury, the appellate court "will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The issue raised in this case involves a review of the facts found by the trial judge as well as the interpretation of a statute.

Our review of the statute is de novo. As noted in Nesbit v. Government Employees Insurance Company, 382 Md. 65 , 854 A.2d 879 (2004): ³³⁸ The deference shown to the trial court’s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions. When the trial court’s [decision] “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Nesbit, 382 Md. at 72 , 854 A.2d at 883 (internal citations omitted). We will not disturb the judgment on the facts, however, unless the trial court’s findings are clearly erroneous. “ ‘If there is any competent evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.’ ” Solomon v. Solomon, 383 Md. 176, 202 , 857 A.2d 1109, 1123 (2004) (quoting Fuge v. Fuge, 146 Md.App. 142, 180 , 806 A.2d 716, 738 (2002)).

DISCUSSION As very recently discussed in Williams v. State, 385 Md. 50 , 867 A.2d 305 (2005), “Restitution imposed under [§ 11-603 of the Criminal Procedure Article] “is a criminal sanction, not a civil remedy.” Grey v. Allstate Insurance Company, 363 Md. 445, 451 , 769 A.2d 891, 895 (2001) (emphasis in original). Judge Wilner, writing for this Court in Grey , traced the history of restitution and explained that it serves retributive, deterrent, and rehabilitative objectives, which are the principal functions of criminal punishment. Id. at 459-60 , 769 A.2d at 899-900 . We explained that penal goals are accomplished through restitution to the extent that the defendant is forced to focus on the harm that was caused to the victim.

Grey, 363 Md. at 459 , 769 A.2d at 899 . Likewise, restitution is a monetary detriment to the defendant and “satisfies] society’s demand for meaningful justice,” thus serving the punitive objective of the criminal system.” Williams, 385 Md. at 58-59 , 867 A.2d at 310 (footnote omitted) (quoting State v. Garnett, 384 Md. 466, 475 , 863 A.2d 1007, 1012 (some internal citations omitted)). Restitution may be imposed as a condition of probation or as part of a sentence. ³³⁹ Pete v. State, 384 Md. 47, 55 , 862 A.2d 419, 423 (2004); Garnett, 384 Md. at 476 , 863 A.2d at 1013 . Mr. Goff argues that the trial court erred by ordering restitution for three reasons: (1) the damage to the shower is not the direct result of the crime; (2) the shower is not the property of the victim; and (3) ordering replacement instead of repair is not fair and reasonable.

We begin by discussing the State’s contention that Mr. Goffs first two grounds for attacking the restitution order are not preserved for our review because defense counsel never raised them below. The State points out that Mr. Goff agreed to pay restitution and that the parties proceeded on an agreed statement of facts that included the following description: “Officer Warehime saw that Hadley had a bloody face and that the shower insert in the bathroom had been broken due to the assault.” (Emphasis added.) Mr. Goffs brief does not address the preservation question. In oral argument, however, counsel argued that a defendant cannot agree to an illegal sentence and that, therefore, the question is properly before the Court. As stated in Md. Rule 8-131(a), “[ojrdinarily, we will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” We note at the outset that it appears the issue was “raised in or decided by the trial court.” Defense counsel did object at trial to the reasonableness of the amount of restitution ordered by the trial court, properly placing the review of the restitution order before us.

Moreover, it is clear from the trial court’s opinion on the record that the specific question of whether Mr. Hadley was the victim of the property damage was considered and decided by the trial court, even if not argued by the parties. If the issues in this case had not been reviewed by the trial court, we would still consider Mr. Goffs appeal. As stated in Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949, 951 (1985): ³⁴⁰ [W]hen the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court.... Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence.

Aii order to pay restitution as a condition of probation is part of the punishment for the crime. Walczak, 302 Md. at 426, n. 1 , 488 A.2d 949 . As such, “an illegal condition of probation can be challenged as an illegal sentence.” Id 7 The Direct Results of the Crime In support of his argument that the damage to the shower was not a direct result of the crime of assault against Mr. Hadley, Mr. Goff relies on Section 11-603 of the Criminal Procedure Article, which provides, in pertinent part: (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 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; (ii) any other direct out-of-pocket loss.... ³⁴¹ (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. Md.Code (2001, 2004 Supp.), § 11-603 of the Criminal Procedure Article.

As stated in Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995), “[t]he first step in determining legislative intent is to look at the statutory language and ‘[i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.’ ” Oaks, 339 Md. at 35 , 660 A.2d at 429 (quoting Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204, 1206-07 (1994)). In Pete v. State, 384 Md. 47 , 862 A.2d 419 (2004), we determined that the property damage for which the defendant was ordered to pay restitution was not the direct result of the crime of assault for which Pete was convicted. In Pete , the defendant entered the apartment of Susan Raickle and hit her on the back of the head. Pete, 384 Md. at 51 , 862 A.2d at 421 .

Ms. Raickle called the police who broadcasted a lookout for Mr. Pete. Id. Almost two hours later, Patrolman First Class Cheesman saw a man matching Mr. Pete’s description in a truck stopped at a traffic light. Id.

Patrolman Cheesman turned on his overhead lights and attempted to stop Mr. Pete, who sped away from the police cruiser. Id. During the chase, Mr. Pete stopped abruptly, causing Patrolman Cheesman to strike Mr. Pete’s truck. Pete, 384 Md. at 52 , 862 A.2d at 421 .

The police cruiser sustained $6,490.53 in damages. Id. Mr. Pete was convicted of second degree assault and reckless driving, among other things. Pete, 384 Md. at 49 , 862 A.2d at 420 .

For the assault on Ms. Raickle, the court sentenced him to eighteen months, with all but two months suspended. Id. The court also placed Pete on probation for three years upon ³⁴² his release. Id.

The conditions of his probation included an order to make restitution to the victim for her injuries, and to the Local Government Insurance Trust (LGIT) for repairs to the police cruiser. Pete, 384 Md. at 50 , 862 A.2d at 420 . We held that restitution to the LGIT as a part of the sentence for assault was improper “because the damage to Patrolman Cheesman’s cruiser did not arise as a ‘direct result’ of the second degree assault on Ms. Raikle.” Pete, 384 Md. at 57 , 862 A.2d at 424 . 8 We reaffirmed, stating: “The chief goal of statutory interpretation is to discover the actual intent of the legislature in enacting the statute, and the legion of cases that support this proposition need not be repeated here. In fact, all statutory interpretation begins, and usually ends, with the statutory text itself for the legislative intent of a statute primarily reveals itself through the statute’s very words.

A court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application. In short, if the words of a statute clearly and unambiguously delineate the legislative intent, ours is an ephemeral enterprise. We need investigate no further but simply apply the statute as it reads.” Pete, 384 Md. at 57-58 , 862 A.2d at 425 (quoting Price v. State, 378 Md. 378, 387-88 , 835 A.2d 1221, 1226 (2003)). Mr. Pete ³⁴³ argued that we should interpret the statute to mean that “a direct result of a crime is limited to the victim of the qualifying crime and that victim’s injuries and/or damages arising from that crime.” Pete, 384 Md. at 59 , 862 A.2d at 426 .

Mr. Pete also suggested that we apply a