Lafontant v. State

EYLER, JAMES R., J. Joseph Lafontant, appellant, was convicted in the Circuit Court for Prince George’s County of, inter alia, manslaughter by vehicle, pursuant to a plea agreement. In the agreement, appellant promised to plead guilty to the charge, and the State assured appellant that it would seek no more than four years of active incarceration. On January 14, 2008, the circuit court held a plea hearing. Appellant pled guilty to manslaughter, and was convicted.

On March 14, 2008, the court held a sentencing hearing. At the sentencing hearing, counsel for Catherine Riley, the victim’s representative, appeared and requested for the first time that the court order appellant to pay her, i.e., Ms. Riley, nearly $12,000 in restitution. The court postponed the restitution decision, but sentenced appellant to ten-years’ imprisonment, all but four years of which were suspended in favor of supervised probation for five years. At a subsequent restitution hearing on July 11, 2008, the court ordered appellant to pay the full amount of restitution.

Appellant filed an application for leave to appeal to this Court on July 29, 2008, which was granted on March 9, 2010. The victim’s representative filed a brief in this Court, pursuant to Maryland Rule 8-lll(c). 1 On appeal, appellant contends that the restitution order should be vacated because it was in violation of the plea ²²¹ agreement. On October 1, 2010, the National Crime Victim Law Institute filed an amicus curiae brief in support of the victim’s representative, and on October 18, 2010, the State filed a brief in support of the restitution order. For the reasons set forth below, we affirm the restitution order.

Facts and Proceedings On February 10, 2007, appellant, driving under the influence of alcohol, struck an oncoming vehicle driven by the victim’s representative. The crash killed the victim, Brianna Stanton, the twelve-year-old granddaughter of the victim’s representative, who was a passenger in the vehicle driven by the victim’s representative. Appellant was charged by grand jury in the circuit court with nine counts, including manslaughter by vehicle or vessel under Maryland Code (2002), § 2-209 of the Criminal Law Article (“CL”). 2 The victim’s representative filed a Crime Victim Notification Request and Demand for Rights Form in the State’s Attorney’s Office pursuant to Maryland Code (2008 RepLVol.), § 11-104(d)(1) of the Criminal -Procedure Article (“CP”), which provides that “a victim or victim’s representative may file a completed notification request form with the prosecuting attorney.” On August 16, 2007 the State’s Attorney’s Office filed a copy of the form in the circuit court pursuant to CP § 11—104(d)(2), which requires the prosecuting attorney to “send a copy of the completed notification request form to the clerk of the circuit court or juvenile court.” ²²² Appellant entered into a plea agreement with the State. Evidence of the terms of the agreement comes from statements that were made at a plea hearing on January 14, 2008, a sentencing hearing on March 14, 2008, and a restitution hearing on July 11, 2008.

Those statements are noted throughout the discussion below. The only statements that are relevant, however, are those made at the plea hearing. Cuffley v. State, 416 Md. 568 , 7 A.3d 557 (2010). We shall consider only those statements in our analysis.

There is no indication in the record that the victim’s representative did not receive notice of the plea agreement prior to the plea hearing, pursuant to CP § ll-104(e), which requires the prosecuting attorney to notify victim’s representatives of plea agreement terms under certain circumstances. 3 Presumably, therefore, the victim’s representative did receive such notice. In fact, the victim’s representative and other members of the victim’s family were present at the hearing, as permitted by Article 47(b) of the Maryland Declaration of Rights, 4 and CP § 11-102. 5 At the plea hearing, defense counsel stated: ²²³ Mr. Lafontant will be entering a plea of guilty to Count One. At the time of the sentencing the State has agreed to be bound to no more than—they request no more than four years active incarceration, and the defense will be free to allocute for whatever they think is reasonable. And those are the parameters.

The colloquy between the court and counsel included the following: [The Court]: Do you understand that once I accept your plea of guilty, the only thing left to be done is to sentence you and give you the agreed to sentence according to the agreement your attorney reached with the State’s Attorney and sentence you to no more than four years of actual incarceration? So when you come back to court on March 14th, you could be sentenced to ten years, all suspended but four years, and thereafter be placed on five years active supervised probation. Do you understand the consequences of your plea? [Appellant]: Yes, Your Honor. Appellant was thus convicted of vehicular manslaughter.

Before the sentencing hearing, the victim’s representative retained counsel through the Maryland Crime Victim’s Resource Center. Counsel for the victim’s representative advised the victim’s representative of her right to request restitution under CP § ll-603(b), and prepared a written request that the trial court order appellant to pay the victim’s representative $11,977. The request contained a written statement of expenses, along with the bills themselves. The expenses consisted of charges for the medical treatment of the victim, funeral and burial charges, and expenses incurred by the victim’s representative for grief counseling expenses.

The request was not filed until March 14, 2008—the date of the sentencing hearing. Counsel for the victim’s representative appeared at the sentencing hearing that day, along with ²²⁴ the prosecutor and counsel for the defense. During the hearing, the victim’s representative’s attorney requested that the trial court order appellant to pay restitution to the victim. Defense counsel objected that restitution was not part of the plea agreement, and that the request “seemed to be changing the terms.” The prosecutor added that he “did not discuss restitution [with appellant] at the time [they] arranged the plea, other than ... the fact [that] the victim has a right to request it.” Counsel for the victim’s representative argued in turn that (1) the victim, separate from the State, has a right to ask for restitution as a condition of probation, and (2) the court “is not bound in terms of probation, fine, [or] anything else since [they weren’t] included” in the agreement.

The court then asked defense counsel whether, given the unexpected request for restitution, appellant wished to withdraw his guilty plea. Defense counsel answered “no.” The court, with consent of the parties, decided not to rule on the restitution request in order to allow defense counsel to discuss it with his client, and to permit the parties and counsel for the victim’s representative to supply the court with authority for and against the request. 6 Turning to the question of appellant’s sentence, the prosecutor recommended that the court sentence appellant to “ten years, suspend all but four.” After listening to several of the victim’s family members’ statements, 7 the court sentenced appellant to a ten-year prison term with all but four years suspended in favor of five years of supervised probation. Following the sentencing, appellant and the victim’s representative could not agree on the issue of restitution. On May 23, 2008, the victim’s representative filed a request that a ²²⁵ restitution hearing date be set.

The restitution hearing was scheduled for July 11, 2008. At the restitution hearing, defense counsel claimed that an order of restitution would violate appellant’s federal and state due process rights. Because restitution was not part of the plea agreement, he reasoned, it should not be ordered as a condition of probation. He further argued that, had restitution been requested before the agreement was formed, the terms of the agreement may have been different.

Counsel for the victim’s representative countered that the victim’s representative was not a party to the plea agreement and thus was not bound by it. Moreover, counsel for the victim’s representative opined, the State could not waive a victim’s right to restitution, because the statutory right to restitution belongs to the victim—not the State. Last, counsel for the victim’s representative concluded that appellant did get the benefit of his bargain. Counsel stated: My understanding is that the plea agreement was four years unsuspended time.

That’s what the Defendant received. There was no, also part of the plea agreement that he was going to get ten and five years probation. Those are terms that the court normally determines. The plea was a cap, unsuspended time of four years.

The Defendant got the benefit of his [bargain]. Having heard both sides, the court ordered appellant to pay restitution as a condition of probation. The court reasoned that (1) the plain language of CP § ll-603(b) says that the victim has a right to request restitution in a criminal proceeding, without specifying a time frame in which the restitution must be requested, and (2) because the agreement contemplated a period of probation and did not specify the conditions of probation, those conditions were left to the court’s discretion. Appellant filed an application for leave to appeal, which was granted.

Discussion The sole question raised on this appeal is whether appellant’s plea agreement was violated when the trial court or ²²⁶ dered him to pay restitution to the victim. We address this question under a de novo standard of review. See Cuffley, supra; Rankin v. State, 174 Md.App. 404, 408 , 921 A.2d 863 (2007) (“We review the question of whether a plea agreement has been violated de novo.”) (citing Tweedy v. State, 380 Md. 475, 482 , 845 A.2d 1215 (2004)). Before turning to the merits of the question, we discuss below (1) the legal framework concerning victim restitution, (2) the law governing plea agreements, and (3) the parties’ contentions.

Ultimately, we affirm the circuit court’s restitution order. 1. Restitution for Victims in Criminal Proceedings Under CP § ll-603(a), “a court may enter a judgment of restitution that orders a defendant ... to make restitution in addition to any other penalty for the commission of a crime if ... 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.” Generally, courts may impose restitution as either a condition of probation or as part of a sentence. Goff v. State, 387 Md. 327, 338-39 , 875 A.2d 132 (2005) (citing Pete v. State, 384 Md. 47, 55 , 862 A.2d 419 (2004) (explaining that “restitution may be ordered, with qualifications, as a direct sentence for a crime or delinquent act” under CP § ll-603(a), but that sentencing courts also employ their broad power under CP § 6-221 to impose restitution as a condition of probation)). However, if a court entering a judgment of restitution to a victim under CP § 11-603 does elect to order a period of probation, “compliance with the judgment of restitution ... shall be a condition of probation ... in addition to a sentence or disposition____” CP § ll-607(a)(l).

Subsection (b) of CP § 11-603 makes it clear that restitution is in fact a right held by victims and, in a criminal proceeding, can be requested by either the victim or the State: ²²⁷ (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. Section 11-614 states that, where practicable, the State’s Attorney should “notify an eligible victim of the victim’s right to request restitution” and “help the victim to prepare the request and advise the victim as to the steps for collecting restitution that is awarded.” 8 Section ll-615(a) then sets out the procedure by which victims can present the court with competent evidence of their losses: (a) Fair and reasonable charges.—In a restitution hearing held under § 11-603 of this subtitle, a written statement or bill for medical, dental, hospital, counseling, funeral or burial expenses is legally sufficient evidence of the amount, fairness, and reasonableness of the charges and the necessity of the services or material provided. A court need not issue a judgment of restitution if the court finds “(1) that the restitution obligor does not have the ability to pay the judgment of restitution; or (2) that there are extenuating circumstances that make a judgment of restitution inappropriate.” CP § ll-605(a). Notably, a judgment of restitution in a criminal proceeding “does not preclude the ... victim ... from bringing a civil action to recover damages from the restitution obligor.” CP § ll-603(c)(l).

If the victim subsequently pursues civil restitution, the “civil verdict shall be reduced by the amount paid under the criminal judgment of restitution” CP § ll-603(c)(2). ²²⁸ In Chaney v. State, 397 Md. 460 , 918 A.2d 506 (2007), the Court of Appeals held that “[a]n order of restitution entered in a criminal case, even when attached as a condition of probation, is a criminal sanction—part of the punishment for the crime.” 9 Id. at 470 , 918 A.2d 506 . Although restitution' serves both to rehabilitate and punish the defendant, and to recompense the victim, Grey v. Allstate Ins. Co., 363 Md. 445, 460 , 769 A.2d 891 (2001), in Chaney , the Court noted: Although, as we pointed out in Grey , [restitution] has a therapeutic and rehabilitative function with respect to the defendant, its predominant and traditional purpose is to reimburse the victim for certain kinds of expenses that he or she incurred as a direct result of the defendant’s criminal activity. It is not a judicially imposed gift to the victim, but reimbursement that the defendant, personally, must pay. 397 Md. at 470 , 918 A.2d 506 . 2.

Plea Agreements The Court of Appeals has held that, because plea agreements are similar to contracts, “contract principles should generally guide the determination of the proper remedy of a broken plea agreement.” Solorzano v. State, 397 Md. 661 , 919 A.2d 652 (2007) (citing State v. Parker, 334 Md. 576, 604 , 640 A.2d 1104 (1994); Tweedy, 380 Md. at 482 , 845 A.2d 1215 (“Plea bargains have been likened to contracts, which ²²⁹ cannot normally be unilaterally broken with impunity or without consequence.”)); Hillard v. State, 141 Md.App. 199, 207 , 784 A.2d 1134 (2001) (“[T]he law is well settled that, in the absence of any jurisdictional defect, [agreements between the State and an accused] are based on contract principles and must be enforced.”); Ogonowski v. State, 87 Md.App. 173, 182-83 , 589 A.2d 513 (1991) (noting that a plea agreement constitutes “a contract between a defendant and the State”). In Tweedy v. State, the Court held that, “[i]n considering whether a plea agreement has been violated ... the terms of the plea agreement are to be construed according to what a defendant reasonably understood when the plea was entered.” 380 Md. at 482 , 845 A.2d 1215 . To determine “a defendant’s reasonable understanding of the agreement at the time he entered into it, we consider terms implied by the plea agreement as well as those expressly provided.” Id. (citations and quotations omitted).

Recently, the Court of Appeals has emphasized that “fairness and equity” govern the enforcement of plea agreements so that when a plea agreement rests on a promise as to disposition, the promise must be fulfilled. Cuff-ley, supra. Maryland Rule 4-243(c) sets forth the procedures to be followed once the prosecutor and defendant have entered into a plea agreement. The Rule, in pertinent part, provides as follows: (c) Agreements of sentence, disposition, or other judicial action.

(1) Presentation to the court. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State’s Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. ²³⁰ (2) Not binding on the court. The agreement of the State’s Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the court unless the judge to whom the agreement is presented approves it.

(8) Approval of plea agreement. If the plea agreement is approved, the judge shall embody in the judgment the agreed sentence, disposition, or other judicial action encompassed in the agreement or, with the consent of the parties, a disposition more favorable to the defendant than that provided for in the agreement. (4) Rejection of plea agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defendant persists in the plea of guilty or nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agreement.

If the defendant persists in the plea, the court may accept the plea of guilty only pursuant to Rule 4r-242(c) and the plea of nolo contendere only pursuant to Rule 4-242(d). 3. Parties’ Contentions Appellant argues that “[njeither party nor the court ever implied [by] their actions or terms of the agreement that the appellant’s sentence might include an order of restitution.” Therefore, he concludes, a reasonable person in his position would not have understood the plea agreement as leaving open the possibility of restitution in the criminal proceeding. Noting that restitution is a form of punishment, and that it had to be incorporated in the plea agreement in order to be