McDaniel v. State

RAKER, J. Dakota D. McDaniel, appellant, was convicted in the Circuit Court for Washington County of assault in the second degree. He presents the following question on appeal: Whether the circuit court erred in ordering him to pay restitution to the victim. We shall hold that the court did not err in ordering payment of restitution and, accordingly, shall affirm. I. Appellant was charged by criminal information in the Circuit Court for Washington County with first-degree assault, second-degree assault, reckless endangerment, wearing, carrying, and transporting a handgun, and using a handgun in the commission of a crime of violence.

His case was tried to a jury, which found him guilty of second-degree assault and not guilty on the remaining charges. The court sentenced appellant to a term of incarceration of seven years, but credited appellant for 111 days already served and suspended the balance of the term. The court further sentenced appellant to five years of supervised probation and, as a condition of that probation, ordered him to pay $4,000 in restitution to the assault victim and $297 to the Criminal Injuries Compensation Board (“the Board”). The events leading to appellant’s conviction occurred on the evening of July 14, 2010, within the Halfway Manor Apartments in Hagerstown, Maryland.

The victim, Andrew Robinson, testified that he and some friends were standing outside the apartment of another friend when appellant approached him. The two, who had met once or twice before, exchanged a ⁵⁵⁵ few words, whereupon appellant took a small handgun from his pocket and struck Robinson in the face with it. The blow knocked out one of Robinson’s front teeth. Robinson stated that he attempted to leave, but appellant and another individual continued the attack.

Robinson’s friends came to his aid, and the fight broke up when police arrived. The State presented testimony from two of Robinson’s friends, who confirmed his account and added that appellant had dropped the handgun, and that it was picked up by his girlfriend. Appellant and two witnesses testified on his behalf. Appellant denied that he used or even owned a handgun and claimed that Robinson and his friends were the aggressors; appellant threw only one punch in self-defense.

The defense witnesses corroborated this version of events. Robinson testified that following the assault, he visited a dentist “to see what it would cost to get a new tooth put in,” and a medical doctor for treatment of an infection in his mouth. The latter prescribed painkillers and an antibiotic. At the close of its case, the State offered into evidence medical and dental records supporting Robinson’s testimony.

The jury found appellant guilty of second-degree assault only, and the court proceeded immediately to sentencing. The State advised the circuit court that Robinson had submitted a claim of $297.49 to the Board, which the Board had paid to the Diagnostic Imaging Services and Medical Practice of Antietam. “But the other expenses,” the State continued, “unfortunately are part of the dental work which are going to take, are started and are going to take another year to complete.” The estimate statements for replacing Robinson’s missing tooth, which both the State and the defense possessed, ranged “between four and five thousand dollars.” Given that the cost of reparative treatment was only an estimate, the State expressed uncertainty as to the amount of restitution to request. In response, the circuit court said that it was “inclined to set the restitution at four thousand dollars subject to you being able to ... come in and contest that figure.” ⁵⁵⁶ With respect to possible incarceration, the State deferred to the court, but conveyed that “the victim’s primary concern has always been restitution.” Defense counsel requested a suspended sentence and said that appellant “has to realize if he doesn’t make payments on restitution he could go to the Division of Corrections.” Appellant advised the court that although he was not employed currently and had a few, unrelated criminal matters pending, he was looking for work and did not have any physical disabilities preventing him from obtaining employment. During the sentencing proceeding, the circuit court told appellant that it agreed with the State that the victim’s main concern was restitution, “and that isn’t going to happen if you are locked up.” In addition to the suspended sentence, the court ordered probation, conditioned upon appellant’s payment of $297 to the Board 1 and $4,000 to Robinson, “at the rate of no less than one thousand dollars per year and further pursuant to a schedule to be adopted between [appellant] and [his] probation agent.” Appellant made no objection to the restitution or the sentence.

This timely appeal followed.

II

Before this Court, appellant argues that the circuit court’s order of restitution to Robinson exceeded the court’s authority and is an illegal sentence. 2 Specifically, appellant contends that the statute governing restitution payments covers, inter alia, only actual dental expenses or losses, but at the time of sentencing no dental work had been done and, thus, there was no “actual loss to the victim.” Estimates of treatment “not yet certain to occur in the future,” appellant maintains, are not permitted under the law. Appellant further ⁵⁵⁷ contends that the record from the sentencing proceeding “suggests” that he does not have the ability to pay the ordered restitution. The State argues that the plain language of the restitution statute authorized the circuit court to order restitution for dental work that had not yet been done and was based upon estimates for future dental treatment. With respect to an inability to pay the amount of restitution, the State contends that appellant affirmatively waived such an argument by assuring the court that he could work and by not raising lack of ability to pay at the sentencing and restitution hearing.

On the merits, the State maintains that nothing in the record supports appellant’s contention that he is unable to pay restitution.

III

In Downes v. Downes, 388 Md. 561, 571 , 880 A.2d 343 (2005), Judge Wilner, writing for the Court of Appeals, expressed concisely an appellate court’s task when interpreting a statute: “We have stated the controlling principles of statutory construction so often that only the briefest exposition is necessary. Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself. If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written and in a commonsense manner. We do not add words or ignore those that are there.

If there is any ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created.” Maryland Code (2001, 2008 Repl.Vol.), §§ 11-601 through 11-619 of the Criminal Procedure Article 3 govern the award ⁵⁵⁸ and payment of restitution by a criminal defendant. In particular, § 11-603 provides as follows: “(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 or losses; (ii) direct out-of-pocket loss; (iii) loss of earnings; or (iv) expenses incurred with rehabilitation; (5) the Criminal Injuries Compensation Board paid benefits to a victim.” § 11-603(a). Restitution under this section “is a criminal sanction, not a civil remedy.” Grey v. Allstate Ins. Co., 363 Md. 445, 451 , 769 A.2d 891 (2001) (emphasis in original).

It serves the familiar penological goals of retribution and deterrence, and especially rehabilitation. See Anne Arundel County v. Hartford Accident & Indem. Co., 329 Md. 677, 685 , 621 A.2d 427 (1993); see also Grey, 363 Md. at 450-61 , 769 A.2d 891 (discussing the purposes of restitution). Predominantly and traditionally, however, the point of the restitution statute is to compensate the victim for the expenses and losses caused directly by the defendant.

See Chaney v. State, 397 Md. 460, 470 , 918 A.2d 506 (2007). “The objectives of restitution do not include that the victim must be made whole by the full reimbursement of the victim’s loss, but they do not preclude that possibility if the defendant has the ability to pay.” Hartford Accident & Indem. Co., 329 Md. at 685-86 , 621 A.2d 427 . ⁵⁵⁹ To that end, “[a] victim is presumed to have a right to restitution under subsection (a) of’ § 11-603 when “the court is presented with competent evidence of any item listed in subsection (a) of this section.” § ll-603(b)(2). Competent evidence of entitlement to, and the amount of, restitution need only be reliable, admissible, and established by a preponderance of the evidence. See Juliano v. State, 166 Md.App. 531, 540 , 890 A.2d 847 (2006).

Moreover, “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 materials provided”; a defendant challenging the charges bears the burden of proving they are not fair or reasonable. § 11-615(a)-(b). A. We first address whether the criminal restitution statute permitted the circuit court to order restitution on the facts of this case. Appellant contends that awarding restitution was error because, at the time of sentencing, the victim “had not incurred any monetary loss,” or any “actual loss.” Section 11-603(a)(2)(i) does not specify when “actual ... dental ... expenses or losses” are incurred. The General Assembly did not define “expense” or “loss,” and, therefore, we read the words in accord with their ordinary, popular meaning.

See, e.g., Williams v. State, 200 Md.App. 73, 110-11 , 24 A.3d 210 (2011). 4 “Expense” is defined in Webster’s New International Dictionary 896 (2d ed.1950) as “that which is expended, laid out, or consumed; outlay; hence, the burden of expenditure”; in an economic ⁵⁶⁰ sense it means an “outlay; cost or money paid out.” “Loss,” on the other hand, is defined as the “[a]ct or fact of losing (in various senses) or suffering deprivation”; “unintentional parting with something of value; as, ... loss of health or reputation”; “[t]hat which is lost; that of which anything is deprived or from which something is separated, usually unintentionally and to disadvantage.” Id. at 1460. Thus, unlike “expense,” the word “loss” does not imply necessarily an action on the part of the one who incurs it: a victim my suffer a “loss”—a harm or deprivation—through the actions of a criminal defendant; the victim will incur an “expense” when he seeks to remedy or ameliorate that loss. For example, one who suffers a laceration from an assault has a medical loss; when one incurs a debt or pays money to a physician to treat that loss, one has a medical expense. Although we think this is the most logical interpretation of the meanings of “expenses or losses” as used in the statute, we acknowledge that the term “losses” in § ll-603(a)(2)(i) is not without ambiguity; people do not speak ordinarily of “medical losses” or “funeral losses.” As such, we look to the available legislative history to help clarify the words of the statute.

See Downes, 388 Md. at 571 , 880 A.2d 343 . Prior to 2005, § ll-603(a)(2)(i) permitted restitution only for “actual medical, dental, hospital, counseling, funeral, or burial expenses.” In that year, the General Assembly amended the section, inter alia, “for the purpose of expanding the circumstances under which a judge may order a defendant or child respondent to make restitution to include situations in which the victim suffered certain losses or suffered expenses incurred rehabilitation.” 2005 Maryland Laws ch. 512, at 3017. Attempts to amend § 11-603(a)(2)(i), however, began earlier than 2005. In February 2004, House Bill 786 was introduced.

As then drafted, the bill proposed deleting the word “actual” from the section. See H.B. 786, 2004 Session, First Reading, Feb. 6, 2004. The adjective “actual” describes something “[ejxisting in act or reality; really acted or acting or being; in fact; real;—opposed to potential ”; “[i]n action or existence at the time being; present.” Webster’s New Inter ⁵⁶¹ national Dictionary at 27. After review and amendment by the House Judiciary Committee, the deletion of the word “actual” was stricken and the words “or losses” were added after “expenses.” See H.B. 786, 2004 Session, Second Reading, Mar. 23, 2004.

Although the bill passed the House, it died in the Senate. In 2005, House Bill 1010 was introduced. This bill included the addition of “or losses” when it was introduced on February 11, and that language remained unchanged throughout the House’s consideration and adoption of the bill. Senate Bill 873, identical to House Bill 1010, was introduced a few days later and was adopted