Lopez-Sanchez v. State

⁵⁸⁴ DEBORAH S. EYLER, Judge. Oscar Antonio Lopez-Sanchez, the appellant, was a victim of a delinquent act by DeShawn C., in Howard County. In the delinquency case, the State and DeShawn agreed to a Consent Order for Restitution (“Consent Order”), by which DeShawn would reimburse the appellant for some medical expenses, but not for lost wages. A few days after the Consent Order was docketed, the appellant filed a motion to reconsider or, in the alternative, to alter or amend.

The juvenile court held a hearing on the motion and thereafter issued a memorandum opinion and order denying it, on the ground that the appellant lacked standing. The appellant filed an application for leave to appeal in this Court, which was granted. The State and DeShawn are participating as the appellees. The appellant has posed six questions for review: I. Did the juvenile court err in concluding that the victim lacks standing to assert his right to restitution from the respondent for the permanent, crippling injuries the respondent inflicted upon him?

A. Must a person be a party to have standing to assert rights in legal proceedings? B. Does the Victims’ Rights Act of 1997 give victims standing to seek restitution in juvenile proceedings?

II

Did the juvenile court improperly deny the victim’s presumptive right to restitution for his lost earnings under Article 27, § 807 by approving the State and respondent’s proposed order that contained no restitution for the victim’s lost earnings?

III

Did the juvenile court err by holding that the State must join in the victim’s request for restitution for lost earnings in order for the court to entertain the request?

IV

Did the juvenile court violate its mandatory duty under Article 27, § 781(d) to consider the victim impact statement in entering the judgment of restitution ⁵⁸⁵ by approving the State and respondent’s proposed order without taking the victim's impact statement into account? V. Did the juvenile court improperly deny the appellant his right under Article 27, § 780 to address the judge at a disposition hearing by signing the State and respondent’s proposed order without hearing from the victim?

VI

Did the juvenile court improperly ignore the State’s Attorney’s Office’s failure to provide the victim with a copy of the proposed “consent order” prior to its being submitted to, and signed by, the judge, in violation of the victim’s right under Article 27, § 770 to receive prior notice of all court proceedings in the case? DeShawn filed a motion to dismiss the appeal, on the ground that it is not permitted by law. The State then joined in that motion. For the following reasons, we shall grant the motion to dismiss the appeal.

FACTS AND PROCEEDINGS In the early morning hours of February 29, 2000, in Columbia, Maryland, the appellant was returning home from work at a Wendy’s restaurant when he was shot in the back. He sustained serious wounds that caused him to become permanently paralyzed from the chest down. DeShawn, then age 16, was apprehended in connection with the shooting, and was charged in the Circuit Court for Howard County with attempted murder, first and second degree assault, reckless endangerment, attempted robbery, attempted robbery with a dangerous and deadly weapon, and use of a handgun in the commission of a felony. 1 ⁵⁸⁶ The circuit court granted a reverse waiver motion and transferred the matter to the juvenile court. 2 On August 28, 2000, the State filed a petition for delinquency against DeShawn. DeShawn was placed by the Department of Juvenile Justice (“Department”) at the Hickey School.

In September 2000, the Department transferred DeShawn to Bowling Brook Academy (“Bowling Brook”), in lieu of other detention options. The Bowling Brook program was time-limited, with DeShawn’s placement to last between 10 and 12 months. An adjudicatory hearing before a juvenile master took place on October 25, 2000. Two days later, the master issued a report and recommendation, finding that DeShawn was involved in the shooting and had committed an act that in the adult criminal justice system would constitute the crimes of attempted murder, first degree assault, second degree assault, and reckless endangerment.

The master made certain recommendations about placement. DeShawn filed exceptions to the report, but withdrew them, on February 26, 2001. That same day, the juvenile court accepted the report and recommendation of the master, and issued an order adjudicating DeShawn a delinquent child and committing him to the custody of the Department, at Bowling Brook. On May 16, 2001, the Howard County State’s Attorney’s Office filed in the juvenile proceeding a certification that the crime victim notification request form, as described in Md. Code (1957, 1996 Repl.Vol.), article 27, section 841(9), 3 had been mailed or otherwise delivered to the appellant.

On May ⁵⁸⁷ 25, 2001, the appellant filed the completed crime victim notification request form in the juvenile court. DeShawn was scheduled for release from Bowling Brook on July 28, 2001. On July 24, 2001, the juvenile court held a disposition review hearing, which was devoted to the question whether the Department’s request to move DeShawn to a “step down” juvenile facility should be approved. The appellant was present at the hearing, and his written victim impact statement was read into the record.

The statement is as follows: I was born in El Salvador. My mother died when I was 8 years old, and I lived with my father. There was a civil war in my county [sic] when he was growing up. I never went to school.

My family was very poor. We raised corn and beans to eat. I came to this county [sic] with one goal, to work and send money home to my family. I worked for more than two years at Wendy’s in Columbia and sent as much as I could to my father.

He supports my brother and four sister [sic], including one whose husband was killed. I was happy to do a good job and help my family. I never gave this young man (meaning DeShawn C.) any reason to hurt me. All I did was work and go home at night.

This shooting has left me a prisoner in my own body. I am paralyzed from the chest down. I can’t walk, and I am in pain. The bullet is still lodged in my spine.

This young man did not manage to kill me but he did kill the person I was. Since I was a boy, I have always been independent, even as a child I hunted and fished to help feed my family. Now I have to depend on my uncle and other relatives for everything [sic] little thing. I hope to work again, but I will still need help with transportation to the job, and there will be many jobs that I can not do.

This young man has robbed me of the dreams I had until only God knows when. Your Honor, my parents never learned to read or write, but they did teach me right from wrong. You don’t need a lot of education to know not to steal, not to lie, not to kill. My parents did teach me how to respect other people.

Since I was shot, I have learned to write in my own ⁵⁸⁸ language. Now I need to learn how to work from my wheelchair. Finally, Your Honor, I believe the law gives me the right to ask that this young man eventually make restitution to me for the harm he has done. I ask you to order him to pay restitution.

Thank you, Your Honor. A statement by the appellant’s uncle also was read into the record. DeShawn called as witnesses counselors who described the Bowling Brook facility and program, recounted DeShawn’s progress, and advocated his being moved to a “step down” program, in which he would live in society but in a supervised setting. The prosecutor responded that the appellant and his family would have preferred the case to have remained in the adult criminal justice system, and a “lengthy incarceration” to have been imposed; but, that not having happened, the appellant at least wished to see “continued consequences.” The court interjected, commenting that the appellant’s statement had referred to “some type of restitution,” and asking whether that issue had been adjudicated before the master.

The prosecutor responded that it had not. The court then inquired whether restitution was “still an open possibility ... at this stage? Is that not available or what?” The prosecutor said it was not, in her view: Your Honor, I don’t know that [restitution is still available]. I don’t believe that it is.

My understanding is the initial— all the hospital bills and medical bills have been taken care of, that is still an attempt for the Criminal Injury’s Compensation Board that requires certain documents that [the appellant] does not have at this particular point in time. It did not cover the continuing medications, and I take full responsibility for that, Your Honor. The court’s focus then returned to the issue of placement. There was no more mention of restitution at that hearing.

On July 26, 2001, the court issued a memorandum opinion and order committing DeShawn to the Department for further ⁵⁸⁹ placement as designated by the Department, ie., allowing the Department to place DeShawn in a “step down” program. Two days later, the appellant, through private counsel, filed a written request for restitution and for a hearing. He attached documentation of the losses for which he was seeking restitution, including pay stubs from his job at Wendy’s. The documentation showed that, on account of the injuries he sustained in the shooting, the appellant lost wages totaling more than $21,000. 4 On August 1, 2001, DeShawn filed a motion to dismiss the appellant’s request for restitution.

The State filed an opposition to that motion. The court scheduled a hearing on the restitution request for October 11, 2001. The hearing was postponed indefinitely, however, at the joint request of DeShawn and the State. There was no ruling on the request for restitution and motion to dismiss. 5 Nearly eight months later, on June 6, 2002, one of DeShawn’s counselors sent a memorandum to the prosecuting attorney and others, including the juvenile master, stating, incorrectly, that DeShawn’s “Court Order” required him to pay restitution, but no specific amount of restitution had been set.

In fact, restitution had not been ordered. The juvenile master wrote a note on the memorandum, on June 9, stating that the case should be set in for “review of restitution.” Thereafter, on a date not revealed in the record, but either on or before June 19, 2002, DeShawn and the State jointly submitted a proposed “Consent Order for Restitution,” which ⁵⁹⁰ called for DeShawn to pay the appellant restitution totaling $4,427.50, for medical expenses. The restitution amount did not include any sum for lost wages. The appellant was not given a copy of the proposed Consent Order, or informed about it, prior to its being submitted to the court.

The court signed the proposed Consent Order on June 19, 2002, and the order was docketed the next day. On the evening of June 27, 2002, the prosecutor informed the appellant about the Consent Order. She told the appellant the order provided restitution for medical expenses, but not lost wages. The next day, the appellant, by private counsel, filed a “Motion to Reconsider Order, or Alternatively, to Alter or Amend Judgment” (hereafter, “motion to alter or amend”) and a request for a hearing.

In his motion to alter or amend, the appellant complained that the State had violated his rights under Article 27, section 770(e), 6 by not giving him copies of either the proposed or final Consent Order; that he, and not the State, had filed the request for restitution, under Article 27, section 807, and for a hearing, so the State did not have the authority to compromise his request, without his knowledge, consent, or approval; that he had been denied the opportunity for a hearing on his restitution request; and that, if the court properly had considered his restitution request, it would have granted restitution for at least some of the lost wages he suffered as a consequence of the injuries caused by the delinquent acts. DeShawn and the State each filed oppositions to the appellant’s motion to alter or amend. DeShawn argued that the appellant did not have standing, under the Juvenile Causes Act or the Maryland Rules, to challenge a restitution order agreed to by the State and the juvenile offender in a juvenile delinquency case, because he was not a party to the case; that, while certain rights are conferred upon victims in Maryland by statute, none of them extend to cover the situation in ⁵⁹¹ this case; that there is no authority to file a Rule 2-534 motion to alter or amend in a juvenile case; and that the restitution amounts the appellant was seeking included future losses, which are not recoverable, other than in a separate tort action. In a supplemental memorandum, DeShawn further argued that any increase in the amount of the restitution judgment against him would violate his Fifth Amendment right to be free from double jeopardy.

The State’s opposition for the most part tracked the same arguments advanced by DeShawn. The State pointed out that the appellant had received $25,000 from the Criminal Injuries Compensation Fund. The State also asserted that, at the time the Consent Order was entered into, there was no competent evidence of losses incurred by the appellant, other than those pertaining to medical expenses. The State did not explain the basis for that comment.

On April 16, 2003, the court held a hearing on the appellant’s motion to alter or amend. The appellant, DeShawn, and the State advanced the same arguments made in their papers. The prosecutor who handled the juvenile case originally and when the Consent Order was submitted had since left the office, but was available to testify. The new prosecutor explained that the appellant was an undocumented alien in this country, and had been working at Wendy’s under a false social security number when the shooting happened.

It was on that basis that the first prosecutor had concluded that there was not competent evidence that the appellant had sustained recoverable lost wages. The appellant countered that regardless of his immigration status, his pay stubs were competent evidence to prove his lost wages. Most of the hearing was devoted, however, to the issue of standing. The court took the matter sub cuña, and on May 1, 2003, issued a memorandum opinion and order, docketed that day, denying the appellant’s motion to alter or amend, on the ground that he lacked standing.

Specifically, the court concluded that the statutes and rules governing juvenile proceedings did “not allow [it] to entertain a request for relief of the ⁵⁹² nature filed here where the State does not join in the request” and that, because “the victim in this case cannot be found to be a party, [he] therefore does not have standing before this court.” The appellant filed a timely notice of appeal. He also filed a timely application for leave to appeal, relying on Article 27, section 776 7 and Md. Rule 8-204. Neither of the appellees filed a response to the application for leave to appeal. This Court issued an order on July 18, 2003, granting the application, and moving the case to the direct appeal docket.

DISCUSSION The appellees have moved to dismiss this appeal, pursuant to Rule 8 — 602(a)(1), as not being permitted by law. They argue that the appeal is not authorized as a direct appeal, under Md.Code (1974, 2002 RepLVol.), section 12-301 of the Courts and Judicial Proceedings Article (“CJ”), which governs generally the right of appeal from a final judgment, and states that “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” They point out that the appellant, the victim of the delinquent act in this juvenile case, nevertheless is not a “party” to the case. Accordingly, he is not statutorily authorized to prosecute a direct appeal, under CJ section 12-301. The appellees further argue that the appellant is not permitted by Article 27, section 776 (the statute he relied upon) to file an application for leave to appeal in this Court.

Specifically, they assert that section 776 confers upon the victim of a violent crime the right to file an application for leave to appeal from an interlocutory or final order denying or failing to take into consideration certain rights secured to victims by statute, but that the appellant is not a victim of a violent crime, within the meaning of the statute. ⁵⁹³ The appellant responds that he has standing to prosecute a direct appeal, under CJ 12-301, because, under the controlling case law, he should be considered a “party” to the delinquency case, within the meaning of that statute. Alternatively, he takes the position that because this Court granted his application for leave to appeal, and did so without opposition, the appellees cannot now argue that he was not entitled to file the application. In his brief and reply brief, he does not address the merits of the argument that he is not a victim of a “violent crime,” within the meaning of Article 27, section 776. (0 CJ section 12-301 states, in relevant part: Right of appeal from final judgments — Generally.

Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. Subtitle 8A of the Juvenile Causes Act, CJ sections 3-8A-01, et seq., governing delinquent children, provides that the parties to a juvenile delinquency case include the child who is the subject of the petition, the State as the petitioner, the child’s parent, guardian, or custodian, and an adult charged with contributing to the delinquency of a juvenile under CJ section 3-8A-30. CJ section 3-8A-01(q).

As noted previously, the appellees take the position that, because the appellant was not a party to the juvenile delinquency case, he did not have the right to appeal from any final judgment entered by the juvenile court, including either the Consent Order or the May 1, 2003 order denying his motion to alter or amend. The appellant acknowledges that he is not a party to the juvenile case, in the sense of being a named litigant, or under CJ section 3-8A-01(q). He maintains, however, that CJ section 12-301 and its predecessor statutes have been interpreted broadly, to treat as a “party” for purposes of appeal a person ⁵⁹⁴ who has an interest in the subject matter of the appeal that will be affected by the appellate decision. He argues that, as the victim of the delinquent act by DeShawn, he is a “party” to the delinquency case in the sense of having an interest in its subject matter, and therefore for purposes of CJ section 12-301.

The appellant is correct that the Court of Appeals has recognized that one not a party to a suit in the circuit court may nevertheless be treated as a party, for purposes of prosecuting an appeal, upon a showing of a direct interest in the subject matter of the suit that will be affected by the decision on appeal. See Lickle v. Boone, 187 Md. 579, 584 , 51 A.2d 162 (1947) (stating that the statute then in effect permitting an appeal by a party in an equity case “does not restrict the right of appeal to the technical parties to the suit. A person may have such a direct interest in the subject matter of a suit as to entitle him to maintain an appeal, even though he is not one of the actual parties”); Preston v. Poe, 116 Md. 1, 6 , 81 A. 178 (1911) (observing that, “[wjhile it has been held that [the statute governing appeals] does not restrict the right of appeal to those who are technical parties to the suit, yet it is also well settled that an appellant must be able to show that he has a direct interest in the subject-matter of the litigation”). The principle has been applied sparingly, however.

In Hall v. Jack, 32 Md. 253 (1870), the non-party appellant was the assignee of certain promissory notes that the equity court ordered placed in a fund to be distributed to creditors of the assignor. He moved to intervene in the suit, without success. The statute then governing appeals in equity cases permitted an appeal from any final decree or order in the nature of a final decree “passed by a Court of Equity, by any one or more of the persons parties to the suit....” 1864 Md. Laws, Chap. 156. The Court of Appeals held, within the meaning of that statute, that the appellant possessed a sufficient interest in the subject matter of the case to be treated as a party, for purposes of appeal, because the equity court’s order had concluded his rights as to the notes. “[B]eing directly interested in the subject matter of the decree, and ⁵⁹⁵ having filed his petition in the cause, praying to be permitted to intervene for the protection of his rights, he must be considered as a party within the meaning [of the statute], [and] entitled to [an] appeal.” Hall, supra, 32 Md. at 263 .

The holding in Hall derives from a fundamental principle of standing to appeal — that an appellate court will not entertain an appeal by one who does not have an interest that will be affected by prosecuting the appeal. See Curley v. Wolf 173 Md. 393, 399 , 196 A. 285 (1938) (dismissing appeal by an original party, which lacked any interest in the outcome of the controversy). This principle applies to parties and non-parties alike. The holding in Hall , recognizing that in some situations non-parties will be treated as parties for purposes of appeal, has been restated most frequently by the Court of Appeals in cases that, conversely to this case, involve appellants who in fact were parties below, but did not have an interest that could be affected by a decision on appeal, and therefore lacked standing to prosecute an appeal.

See Kreatchman v. Ramsburg, 224 Md. 209, 222 , 167 A.2d 345 (1961) (dismissing an appeal by a taxpayer who had been permitted by the circuit court to intervene as a party in a zoning case but did not have a sufficient interest in the subject matter of the appeal to have standing); Lickle, supra 187 Md. at 586 , 51 A.2d 162 (holding that a co-respondent in a divorce case who had been permitted by the circuit court to intervene as a party did not have an interest in the case so as to allow him to appeal). In the same vein, in First Union Sav. & Loan, Inc. v. Bottom, 232 Md. 292 , 193 A.2d 49 (1963), the Court held that a corporation that was a party to proceedings below, in which a conservator had been appointed to take custody of its property and manage its affairs, nevertheless had a sufficient interest or right in the property to appeal from an order discharging the conservator and appointing a receiver. Likewise, in Maryland-Nat’l Capital Park and Planning Comm’n v. McCaw, 246 Md. 662 , 229 A.2d 584 (1967), the Court held that the Maryland National Capital Park and Planning Commission ⁵⁹⁶ (the “Commission”) had a sufficient interest in the outcome of an appeal of a circuit court’s approval of a petition for abandonment of a subdivision plat, which included land dedicated by the Commission as a park, to have standing to appeal. The Commission had been permitted to intervene below.

The Court of Appeals made plain that, even if the Commission had not been allowed to intervene as a party in the circuit court, its interest in the subject matter of the litigation was sufficient to confer standing to appeal. Id. at 672 , 229 A.2d 584 . In numerous cases, the Court has recognized the principle stated in Hall but has concluded that, in the circumstances before it, the non-party appellant’s interest in the subject matter of the appeal was not sufficient to warrant his being treated as a party for that purpose. See Preston, supra, 116 Md. at 6 , 81 A. 178 (holding that a stockholder in a corporation did not have a sufficient interest in a suit to appoint receivers for the voluntary dissolution of the corporation to permit him to appeal an order dismissing the suit); In re Buckler Trusts, 144 Md. 424, 428 , 125 A. 177 (1924) (dismissing appeal by a tenant of property for which the appointment of successor trustees under deed of trust was sought and granted, because the tenant was not a party and had no interest in the subject matter of the suit); Karr, Hammond & Darnall v. Shirk, 142 Md. 118, 124 , 120 A. 248 (1923) (dismissing appeal by an attorney who represented a trustee in a sale of