In re Cody H.

IN RE CODY H.

No. 27

COURT OF APPEALS OF MARYLAND

Argued: November 4, 2016

September Term, 2016

March 24, 2017

JUVENILE JUSTICE—RESTITUTION

Under § 11-603(a)(2)(iii) of the Criminal Procedure Article, a court may order restitution in a criminal or juvenile case if, "as a result of the crime or delinquent act, the victim suffered . . . loss of earnings." A victim is presumed to have a right to restitution under § 11-603(a) if the victim or the State requests restitution and the court is presented with competent evidence of a loss of earnings. See CRIM. PROC. § 11-603(b). The juvenile court awarded restitution for loss of earnings for the period between September 2014, when the victim's injury occurred, and April 29, 2015 the date of the restitution hearing before the Magistrate. The restitution ordered did not include any amount for the victim's future loss of earnings, i.e., the period after the date of the restitution hearing. Notably, the General Assembly did not create an express limitation on restitution for future loss of earnings in § 11-603(a)(2)(iii), and an award for future loss of earnings could have been proper in this case as long as it was not speculative and did not cover losses not reasonably certain to occur. We shall hold that the award of restitution in this case was within the confines of the restitution statute and affirm the judgment of the Court of Special Appeals.

Where a loss of earnings claim was proven by testimony, regarding the employment and the inability to work, and a letter from the employer regarding the duration and wage figures, there was competent evidence to support an order of restitution for loss of earnings. Here, although the letter from the employer stated "approximate" hours and wages, the evidence was nonetheless sufficient to support a claim for loss of earnings. The standard for restitution is not one of absolute certainty or precision. Rather, there must be competent evidence showing entitlement to and the amount of lost earnings or expenses reasonably certain to be incurred by the victim as a direct result of the crime or delinquent act. Further, such a claim must not be speculative.

Circuit Court for Baltimore County

Case No. J14-001852

Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Opinion by Greene, J.

This case concerns a restitution award entered following a juvenile delinquency proceeding involving Petitioner, Cody H. ("Cody"). On February 19, 2015, a family magistrate of the Circuit Court for Baltimore County ("the magistrate") found that Cody had committed the delinquent act of assault by punching a sixteen year-old victim, Zachary F. ("Zachary"), in the face and breaking his jaw. At the disposition hearing held on April 29, 2015, the magistrate made a recommendation for a restitution award of $1,489.61 to the victim for medical expenses related to the assault. The magistrate did not award restitution for loss of earnings because the magistrate found that claim to be speculative. The State filed exceptions to the recommendation. An exceptions hearing was held before a juvenile court judge on June 15, 2015. The judge sustained the State's exception on the issue of restitution and imposed an additional restitution amount of $5,000 for Zachary's lost earnings.

Cody argues that the restitution statute, Md. Code (1974, 2008 Repl. Vol.), § 11-603 of the Criminal Procedure Article, does not permit the court to order restitution for lost wages to be earned in the future and that the Court of Special Appeals erred in holding that the restitution ordered in this case was supported by competent evidence. For the reasons that follow, we shall hold that the restitution award in this case was proper under § 11-603.

FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2014, a group of high school students, including Cody and Zachary, attended a party where alcohol was consumed. Zachary drank a large amount of alcohol and fell asleep in a chair at the party. Zachary later awoke to Cody spraying him with some sort of liquid from a bottle, which Zachary later testified he believed contained a cleaningsolution. Zachary and Cody engaged in an altercation when Zachary attempted to take the spray bottle away from Cody. During the altercation, Cody punched Zachary in the jaw. The day after the party, Zachary sought medical care for his jaw, which was fractured in two places. To treat the fractures, Zachary had a metal plate surgically implanted to allow his jaw to properly heal. Zachary's jaw was wired shut for five-to-six weeks and Zachary then underwent a second surgery to remove wires from his jaw. Zachary missed approximately three weeks of school at the beginning of the 2014 - 2015 school year due to his injury. Zachary and his mother reported the incident to the Baltimore County Police on October 7, 2014.

The Respondent, the State of Maryland ("the State") instituted juvenile delinquency proceedings against Cody. On behalf of Zachary, the State sought a restitution award of $1,492.61 for Zachary's medical expenses and $6,400.00 for Zachary's loss of earnings. At the adjudicatory hearing held on February 19, 2015, Cody admitted to punching Zachary but alleged provocation. The juvenile court found that Cody unlawfully assaulted Zachary.

A disposition and restitution hearing was held on April 29, 2015. At the disposition hearing, the magistrate presiding received testimony regarding Zachary's medical treatment and expenses and his lost earnings. Zachary testified that he was scheduled to work at Roseda Farm as part of a work-study program during the 2014 -2015 school year. The program was to begin on the first day of school and to continue for approximately forty weeks. Zachary would have earned $6,400 as part of this program. Zachary testified that he was not able to participate in the program because the vibrations from farmmachinery he would be required to operate would cause damage to his healing jaw. Zachary's father also testified as to the program in which Zachary would have participated.

At the restitution hearing, the State introduced a letter from the office manager at Roseda Farm, Marcia Bryant, in support of Zachary's claim for loss of earnings. The letter read as follows:

To Whom this May Concern:

Zachery [sic] [F.] was an employee of Roseda Farm starting in August 2014. Zachery was going to be on the work study program at Hereford High School and would have continue[d] working at Roseda Farm for the 2014/2015 school year. Zachery would have worked approximately 20 hours a week for approximately 40 weeks. Zachery would have made $6,400 if he would have continued at Roseda Farm.

Sincerely,

Marcia Bryant

Office Manager

The magistrate recommended a restitution award of $1,489.61 for medical expenses and did not recommend any restitution for Zachary's lost earnings. Despite being persuaded that Zachary had planned to work at Roseda Farm, and noting that Zachary's testimony regarding the employment was alone sufficient to reach this conclusion, the magistrate declined to recommend a restitution award for loss of earnings. The magistrate found that the claim for $6,400 in lost earnings was speculative because nothing in the record established the duration Zachary would have otherwise continued to work at Roseda Farm or that Zachary was unable to find alternative employment. Further, the magistrate noted that the loss "certainly had not yet occurred."

The State filed exceptions to the magistrate's restitution order. An exceptions hearing took place on June 15, 2015 before a judge of the Circuit Court for Baltimore County, sitting as a juvenile court. The judge concluded that the State had established that Zachary was unable to participate in the work-study program due to injuries sustained in the assault by Cody. In response to Cody's argument that the loss of earnings was speculative, the judge commented that Zachary's claim was not any more speculative than any other lost wages claim, adding, "wouldn't that be the argument on any claim for lost wages, that the person could have been fired, they could have quit, they could have left for another employment?" In making his determination, the judge relied on Zachary's testimony as evidence of Zachary's inability to work, commenting: "You've got his testimony that the job required him to work, to operate machinery that the machinery involved vibrations and the vibrations from the machinery would adversely impact the healing of his jaw. That's, that was his testimony as to why he was unable to work."

The judge issued the following ruling:

I do think that the [magistrate] and find that the [magistrate] was clearly erroneous in finding that an Order of lost earnings in the case was speculative. The victim in the case had been employed by this employer at the rate of $8.00 an hour. That [the Roseda Farm letter] clearly demonstrates that the employer was offering continued employment to the victim, Zachary [F.], for the entire school year that he was enrolled at Hereford High, beginning in September, or they have August of 2014 for a period of forty weeks. There's nothing in the testimony in the transcript that as of the date of the hearing in front of Magistrate McAllister, which was April the 29^th of 2015, that at any point in time he was able to go back to work. I'll reduce the claim based on the fact that at least through April the 29^th he was unable to work, so I'm going to give him the four months of April, through April, from the beginning of September through the end of the year. So that's eight months times 4.3 weeks. I'm going to find that's thirty-two weeks, at minimum, at $8.00 an hour, times twenty hours a week, so I have $640 timeseight hours, $8.00 rather is his lost wage claim, which I total at being $5,120. I'll give the Defendant the further benefit and round the number down to $5,000 and enter an Order in the case. Restitution for lost wages against the Respondent and the parent in the amount of $5,000

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