In re Kameren C.

IN RE: KAMEREN C.

No. 1830

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

July 18, 2017

Circuit Court for Prince George's County

Case No. JA13-1139

UNREPORTED

Graeff, Arthur, Thieme, Raymond T., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Kameren C., appellant, entered a plea in the Circuit Court for Prince George's County, sitting as a juvenile court, of "involved" to a charge of delinquent conduct that, if committed by an adult, would have constituted second-degree assault. At the conclusion of the disposition hearing on October 7, 2013, the court committed Kameren to the Department of Juvenile Services ("DJS") for a level B placement and ordered Kameren and his parents, Shannon C. and Kenneth B., to pay $7,688 in restitution.¹

On appeal, Kameren and his parents present six questions for our consideration, which we have rephrased slightly, as follows:

1. Did the juvenile court err in denying a postponement of the restitution proceeding based on a discovery violation and Kameren's parents' request for counsel?

2. Did the juvenile court err in imposing a judgment of restitution in the absence of reasonable notice and opportunity to respond?

3. Was the order and judgment of restitution impermissible where Kameren was advised by the trial judge at the time of his plea that the consequence of his plea was that he could be committed to a juvenile facility until he reached the age of 21?

4. Did the juvenile court err in ordering restitution where the record failed to establish that the damage to the victim was the direct result of the delinquent act?

5. Did the juvenile court err in imposing restitution against Kameren and his parents absent evidence or inquiry regarding the ability to pay?

6. Did the juvenile court erroneously deprive Ms. C. of her right of allocution?

For the reasons set forth below, we shall vacate the order of restitution against Kameren and his parents and remand for a new restitution hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Kameren was charged in a juvenile delinquency petition with acts that, if committed by an adult, would have constituted robbery, theft, and second-degree assault. At an adjudication hearing on August 28, 2013, Kameren entered an admission of involvement to the allegation of second-degree assault.² The parties agreed that the following factual allegations in the juvenile petition provided the predicate for Kameren's admission:

On or about 2013-08-05, at 10200 Campus Way South Upper Marlboro, Maryland 20774, Prince George's County, the victim, Antonio W., was walking when a four door blue and gray car pulled [ up ] to him and stopped. The Respondent, Kameren C., exited the vehicle and approached him. The Respondent punched the victim with a closed fist to the face which resulted in injuries to the victim[']s mouth. While the victim was on the ground the Respondent removed the victim[']s blue "Candy Skull" earphones with an approximate value of $125.00 and a pair of blue Nike Foamposite tennis shoes having a value of $175. All events did occur within Prince George's County.

The court accepted Kameren's plea of involved to second-degree assault, and a predisposition investigation was ordered.

On September 25, 2013, a hearing was held on the State's motion to postpone the disposition hearing. When asked about the "status of the restitution," Kameren's attorney stated that "there's not going to be any restitution in this case." Counsel for the State, who was standing in for the prosecutor assigned to the case, advised the court that her notes indicated there "should be a restitution hearing set for status."

At a disposition hearing on October 7, 2013, Kameren's attorney argued that the incident arose out of Kameren's attempt to retrieve from the victim, Antonio W., property that belonged to him. The State disagreed, asserting that the property belonged to the victim, and it argued that Kameren attempted to take the victim's property "in a manner that was extremely violent."

Both DJS and Kameren's mother, Ms. C., requested that Kameren be released to the custody of his mother. The State requested the court to commit Kameren to a Level B placement. Ms. C. testified that, although "two wrongs don't make a right," both the principal and vice principal of Kameren's high school documented that the victim had stolen shoes from Kameren. Ms. C. claimed that, if Kameren was released to her custody, she would "be able to provide a therapist for [Kameren] one or two times a week," arrange for him to meet with a psychologist once a month, and continue to have him meet every four to six weeks with a psychiatrist, who already was in the process of prescribing medication for him. Ms. C. explained to the court that she did not get therapy for Kameren until recently because she had lost her job in pharmaceutical sales, and at that time, she did not "really feel that medication was the proper option" for him.

The court then asked the parties what was being done regarding restitution. Defense counsel stated that he "was just handed discovery," and he requested "an opportunity to go through" it. The court did not respond to defense counsel's request.

The prosecutor advised the court that the victim's parents wished to speak. Immediately thereafter, the victim's mother, Tonya W., testified that Kameren knocked out the front tooth of her 15-year-old son, Antonio W., and took his shoes and headphones. Antonio could not get an implant until he turned 19. Additionally, the bottom part of his jaw needed to be restructured, and his teeth were so damaged and chipped that he needed crowns on at least eight teeth. Tonya W. testified that there was "almost $8,000 worth of damage to [her] son's mouth so far," which did not include "the orthodontic treatment that he needs or the oral surgery."

After Tonya W.'s testimony, the court recessed for approximately two and a half hours. When the case was recalled, the judge again asked the parties what was being done about restitution. Defense counsel requested a continuance because he had received discovery from the State that day, including estimates, and he wanted an "opportunity to get [his] own estimates" to dispute the amounts claimed by the victim. Counsel stated that, from photographs that were produced, it appeared that the victim might have had some preexisting dental needs. The court responded that the need to obtain estimates was "not a basis" for a continuance and directed the State to call its first witness. Defense counsel advised that Kameren's parents wanted a continuance to obtain counsel. The Court responded: "Okay," but it then directed the victim to the witness stand.

Antonio W. testified, over objection. He stated that he knew Kameren from high school. On August 5, 2013, the two boys were involved in an incident during which Antonio's left front tooth was knocked out. As a result of that incident, Antonio had to wear "a denture for [his] front tooth" and needed additional dental work on his bottom teeth.

Tonya W. gave additional testimony. On the day after the incident, she took Antonio to a dentist, but the dentist could not treat him because his lips and gums were too swollen. On August 7 or 8, she took Antonio to a dental practice in Greenbelt. A dentist recommended that Antonio receive an implant when he reached the age of 19. In the meantime, Antonio was given a "flipper," advised to return to the dentist every three or four months, and referred to an orthodontist for the repair of several bottom teeth that were chipped during the incident. At the time of the hearing, Antonio had not yet met with an orthodontist. Ms. W. testified that she had received a proposed treatment plan, with a cost of $7,688, for the flipper and the repair of Antonio's teeth.³ That amount did not include the cost of future orthodontic treatment, oral surgery, or ongoing costs such as Polident, Efferdent, or appointments for replacement flippers as Antonio grows.

DISCUSSION

Kameren and his parents challenge the juvenile court's award of restitution on multiple grounds. Before addressing the individual claims, we discuss restitution generally.

Maryland Code (2008 Repl. Vol.) § 11-603 of the Criminal Procedure Article ("CP") provides, in pertinent part, 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:

* * *

(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[.]

A victim is presumed to have a right to restitution 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." CP § 11-603(b). 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." CP § 11-615(a). "A person who challenges the fairness and reasonableness or the necessity of the amount on the statement or bill has the burden of proving that the amount is not fair and reasonable." CP § 11-615(b).

In a juvenile delinquency proceeding, the court may order a child respondent, the child's parents, or both, to pay restitution. CP §11-604(a); see also Md. Code (2013 Repl. Vol.) § 3-8A-28 of the Courts and Judicial Proceedings Article ("CJP") (a "court may...