Brown v. State

1

DAVID ARLON BROWN, SR. v. STATE OF MARYLAND

No. 2072-2022

Court of Special Appeals of Maryland

January 16, 2024

IN THE APPELLATE COURT OF MARYLAND UNREPORTED ^[*]

Circuit Court for Cecil County Case No: C-07-CR-20-000380

Nazarian, Ripken, Kenney, James A., III, (Senior Judge Specially Assigned), JJ.

OPINION

KENNEY, J.

This case arises from an order of restitution entered by the Circuit Court for Cecil County against David Arlon Brown, Sr., appellant. In November 2021, appellant entered an Alford plea to one count of first-degree burglary. He was sentenced to incarceration for a period of ten years with all but eighteen months suspended. After a hearing on June 24, 2022, appellant was ordered to pay restitution in the amount of $24,975.47 to the victim of the burglary. Appellant filed an application for leave to appeal which we granted on February 1, 2023.

ISSUE PRESENTED

The sole issue presented for our consideration is whether the circuit court erred in awarding restitution based on the replacement value of the items taken in the burglary rather than the fair market value. For the reasons set forth below, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged in the circuit court with a number of crimes including first-degree burglary of the dwelling house of his neighbor, Candace Hemrick-Gooch ("Ms. Hemrick"). On November 29, 2021, he entered an Alford plea to a single count of first-degree burglary. After appellant was sentenced, the circuit court held a contested hearing on the issue of restitution.

The victim, Ms. Hemrick, testified at the restitution hearing that, on or about January 8, 2020, there was a burglary in her rented apartment when she was staying with relatives following surgery. According to Ms. Hemrick, the entire place was cleared out: "[w]e lost, like, everything." She reported the loss to her insurance company. With help from an insurance agent, Ms. Hemrick prepared a loss inventory sheet that included, among other things, the identity and quantity of each item stolen, the item's age and condition, and the pre-tax replacement cost. She provided her insurer with photographs, receipts, and items that were recovered from pawn shops. The loss inventory sheet included a loss of $7,608 that was comprised of $6,008 for lost jewelry, $1,100 for cash, and $500 for gift cards. The total amount of the loss claimed was $40,275.47. According to Ms. Hemrick, the insurance agent adjusted some of the amounts claimed and "appraised everything, I guess, at the value that it would be at the time it was stolen." Her policy limits were $15,800 with a $500 deductible.

On cross-examination, Ms. Hemrick was questioned about an email sent by Travelers to the prosecutor several days prior to the restitution hearing. In that email, the insurer did not use the loss of $40,275.47 claimed on the loss inventory sheet. Rather, it estimated her loss to be $32,322.18, and then deducted $7,102.36 for depreciation. That results in a total loss of $25,219.82, which was $9,419.82 over the limits of Ms. Hemrick's insurance policy. Ultimately, she received a check from her insurer in the amount of $15,300, which represented the full amount payable under her insurance policy.

Ms. Hemrick sought restitution from appellant in the amount of $24,975.47, which was the difference between what she received from her insurer and $40,275.47, the total amount of her claimed loss resulting from the burglary. On cross-examination, the court inquired as to why the insurer estimated the total loss to be $32,322.18 instead of the $40,275.47 listed on the loss inventory. Ms. Hemrick speculated that the insurer applied additional depreciation. The prosecutor stated it was "for internal reasons[,]" but he did not "have any documentation on that[.]" According to Ms. Hemrick, some of the items that had been pawned were returned to her "damaged and broken[.]" As to the application for statement of charges that indicated a loss in the amount of $12,556.94, she testified that that amount represented only "the stuff that they actually recovered" from pawn shops. The loss inventory sheet, on the other hand, contained everything that "was claimable on [her] insurance."

The State argued that it had met its burden of proving a loss in the amount of $24,975.47. In response, defense counsel made the following arguments:

Your Honor, there are always - these cases always put the defendant at a disadvantage, because the people go back over, they have an original set of facts, and then two years later or whatever, it has grown immensely from what it was originally. And this is, this is one of those cases.

The rest of it, and, I mean, this thing has gotten three times bigger than it was originally from the first - from the 12,000 - whatever-it-was in the -and I know that's just a, you know - we don't usually have the luxury of going back and adding all these things up, receipts or no receipts. And I don't know - it sounds like the insurance company did its due diligence in whatever was ultimately submitted. If they'd submitted a $12,000 - then submitted $12,000-some claim, even a $15,000 claim originally, she would have been made whole, whole. And you've got years that have gone on because of the COVID delays in this case and so on and so forth. And now we come up to a $40,000, you know. I don't know what - it just - it defies logic.

I understand that the rules for prima facie showing - you can say anything you want. You can show anything. And the insurance company doesn't agree, obviously, on the 40. They came up with 32 based on, I guess, the evidence that she presented to them, and then depreciated it by 7,000 down to 25 or so, if we're going to talk in whole numbers. And either way it seems - it seems outrageous.

And I know that he pled to the thing, and there was no limit on the -it's a burglary first degree. I don't know who else had access to the - we don't know. He's going to get stuck with the bill regardless at this point.

There's nobody else on the hook. So I'm asking the Court to consider, at the bottom, $500, at the top, the 9,000. That's the difference between what the insurance company would have paid if she had a full policy and what she claimed.

I don't know how old these things are, you know, this long list. Some of these things - item age on this, 13 years old, 10 years old, 20 years old. In real life at a yard sale, some of these things, they'd be worthless.

We're, you know, we understand it's up to the Court and the State's done its job, and I think we've done our job. There is no real way to determine what the loss is, but that's it.

The court found Ms. Hemrick "to be very credible" and noted that the loss inventory was prepared close in time to the burglary. The court determined that Ms. Hemrick's loss was the amount listed on the loss inventory sheet less the $15,300 received from the insurance company. The court entered a judgment of restitution against appellant in the amount of $24,975.47.

STANDARD OF REVIEW

In Maryland, a court's authority to enter an order of restitution against a criminal defendant is statutory. See § 11-603 (authorizing restitution order as part of a sentence) and § 6-221 (authorizing restitution order as a condition of probation) of the Criminal Procedure Article of the Maryland Code ("CP"). Restitution is a criminal sanction, not a civil remedy. State v. Stachowski, 440 Md. 504, 512 (2014). In Pete v. State, 384 Md. 47, 55 (2004), the Court of Appeals recognized that restitution:

serves at least three distinct purposes. First, it "is a form of punishment for criminal conduct." Songer v. State, 327 Md. 42, 46 (1992). Second, it is intended to rehabilitate the defendant. Anne Arundel County v. Hartford Accident and Indem. Co., 329 Md. 677, 685 (1993) (citing Lee v. State, 307 Md. 74, 78 (1986)). Lastly, it affords "the aggrieved victim recompense for monetary loss." Id. (quoting Lee v. State, 307 Md. 74, 78 (1986)).

Ordinarily, we review both the decision to award and the amount of restitution for abuse of discretion. See In re Cody H., 452 Md. 169, 181 (2017) (citing Silver v. State, 420 Md. 415, 427 (2011)); see also Wiredu v. State, 222 Md.App. 212, 228 (2015) ("The decision to order restitution pursuant to CP § 11-603 and the amount lie within the trial court's sound discretion and we review the trial court's decision on the abuse of discretion standard."). In doing so, we '"give due regard to the fact finder's finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses."' Angulo-Gil v. State, 198 Md.App. 124, 151 (2011) (quoting Ashton v. State, 185 Md.App. 607, 613 (2009)). Accordingly, "[f]irst-level findings of fact are reviewed for clear error." In re A.B., 230 Md.App. 528, 531 (2016). However, when a restitution order involves the interpretation or application of Maryland law, we review the order de novo. In re G.R., 463 Md. 207, 213 (2019) (citing Goff v. State, 387 Md. 327, 337-38 (2005)).

DISCUSSION

Appellant contends that in reaching its restitution award of $24,975.47, the court erroneously used the replacement value of the stolen items instead of the fair market value of the goods. That issue was not preserved properly for our consideration. Md. Rule 8-131(a) ("Ordinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]"). Our review of the record makes clear that appellant did not argue in the circuit court that restitution should be calculated using the fair market value as opposed to the replacement value of the stolen goods. Appellant's argument at the restitution...