Carter v. State Of Md.

• Decision Date: 03 June 2010
• Docket Number: 2009.,No. 668,668
• Parties: Tyrone Armin CARTERv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

193 Md.App. 193

996 A.2d 948

Tyrone Armin CARTERv.STATE of Maryland.

No. 668, Sept. Term, 2009.

Court of Special Appeals of Maryland.

June 3, 2010.

Samantha Z. Smith (Timchula & Smith, PA, on the brief) Westminster, MD, for appellant.

Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., GRAEFF and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

On February 26, 2007, appellant, Tyrone Armin Carter, was found guilty of second degree assault. The court imposed probation before judgment, with a period of two years supervised probation. As a condition of probation, appellant was ordered to pay restitution to the victim.

On March 24, 2009, the court extended the probation period for three years, until February 26, 2012. Appellant appeals the extension of his probation and presents three questions for review, which we quote:

I. Did the trial court err as a matter of law in extending the Appellant's probation beyond two years?

I. Did the trial court err as a matter of law in not specifically establishing the Appellant's restitution obligation?

II. Did the trial court err as a matter of law in not holding a hearing and receiving evidence on the restitution obligation prior to extending the Appellant's obligation?

For the reasons set forth below, we answer the first question in the affirmative. Accordingly, we shall vacate the order extending appellant's probation.

FACTS AND PROCEDURAL BACKGROUND

On February 26, 2007, appellant pled not guilty, pursuant to an agreed statement of facts, to the charge of second degree assault. The agreed statement of facts indicated that on August 21, 2006, appellant grabbed his wife, pushed her, and slammed her head into the wall and onto the ground. ¹

The court found appellant guilty of second degree assault. Appellant's counsel asked the court to grant appellant probation before judgment, noting that a criminal record would adversely impact appellant's ability to continue to obtain contracting business from the National Security Agency. Counsel stated that appellant was “fully willing to do whatever the Court order[ed] him to do.” The State opposed probation before judgment and requested jail time.

The court granted appellant probation before judgment, placing appellant on two years supervised probation. One of the conditions of probation was that appellant pay restitution to the victim for her “mental or emotional counseling,” as well as any physical therapy attributable to the assault. With respect to the specific amount of restitution, the Court stated: “As to any amounts, if we need to have a hearing on that we can certainly have a hearing at some point in time.” The court stated that it envisioned that the State and appellant would exchange documentation “as far as the amounts are concerned,” noting that it was hopeful that an agreement could be reached without a hearing. Counsel for appellant stated: “That is acceptable, Your Honor, as long as we get the documentation.” The court explained to appellant the implications of probation before judgment, and appellant accepted the disposition. The court and appellant signed a Probation/Supervision order, which provided that the length of probation was two years, beginning on February 26, 2007.

Three months later, on May 25, 2007, appellant filed a Motion to Modify: Request for Restitution Hearing, in which he asked the court to hold a hearing “to determine a monetary limit and/or a time limit for claims to be submitted” by the victim. On June 8, 2007, the State filed an Answer to appellant's motion, agreeing that a hearing should be held on this matter.

On September 4, 2007, the court held a hearing. The State informed the court that it had reached an agreement with appellant's counsel that the current restitution amount owed was $1,535.24, a figure reflecting $1,500 that appellant already had paid. The State requested that an amended probation order be entered, providing that the $1,535.24 was “to be paid in regular increments through parole and probation,” and that appellant would continue to be responsible for any medical, mental, or physical therapy for the victim. The State opposed placing a time or amount limit on the restitution payments. Appellant's counsel, on the other hand, requested that the court place a dollar and time limit on the restitution obligation. The court declined to set a dollar limit, but it stated that the time limit was two years, the length of appellant's probation. The court reiterated that appellant would be responsible only for “things that were caused approximately [sic] by the incident which took place on or about August 21st of 2006.” It explained that the restitution was “not an open, blank check for therapy,” but rather, it was “designed to make sure that the victim is not paying out-of-pocket costs for therapy, which would not have ... been incurred but for this incident.”

The court asked counsel to fill out a Revised Probation/Supervision Order that was acceptable to both parties. The parties agreed that the correct amount of restitution that appellant owed at that time was $1,535.24, but they could not agree on the amount that appellant should pay each month. The court ordered that the $1,535.24 be paid in monthly installments of $100.00. The parties agreed that this amount was subject to: (1) a decrease if appellant could prove credit for other payments; or (2) an increase based on future therapy costs. Appellant's counsel agreed that, if the restitution obligation increased, “the possibility exist[ed] that the probation could be extended if necessary to pay the restitution figure.” Appellant signed the revised order, stating that he understood these conditions of probation.

On July 31, 2008, the State filed a request for a hearing to address appellant's obligation regarding additional restitution payments. The State represented that, with regard to the $1,535.24 restitution ordered on September 4, 2007, appellant had paid through August 2008, leaving a balance of $435.24. The victim, however, had incurred additional therapy costs, and the State requested a hearing to address the issue of this additional restitution.

On November 10, 2008, the court held a hearing on the additional restitution charges. Counsel for appellant stated that appellant had paid all but $135.24 of the $1,535.24 incurred as of the September 4, 2007, hearing. Since that time, the victim had submitted additional therapy bills of approximately $3,800. Appellant's counsel questioned whether the expenses incurred were directly related to the assault in August 2006, as opposed to issues arising from the parties' divorce.

The court found that there should be another hearing on the outstanding expenses, to be scheduled before the expiration of probation. The court discussed the possibility of extending probation as follows:

COURT: ... The only reason I would extend the probation, the main reason, would be because I think it is appropriate if we are going to do this on an installment basis to have Mr. Carter-give him the time to make those payments, which at this point in time are pushing $4,000.

[APPELLANT'S COUNSEL]: $4,000 additional.

THE COURT: Right.

[APPELLANT'S COUNSEL]: In addition to what he has already paid. Your Honor, I hear what the Court is saying. One of my concerns, obviously, is the fact that Your Honor seems to be contemplating extending the probation which, I know the reason you are inclined to do so maybe but I think that is somewhat unfair to Mr. Carter.

THE COURT: Well, Mr. Brewer, even if-let's say hypothetically the provider said at this point in time, no need for any further therapy. Unless Mr. Carter is prepared to write a check for $3,900, I got two choices. Put him in jail for violating probation or extend the probation.

I mean, in that event if Mr. Carter had a check payable to whoever to pay all the costs and there was no projected need for any further treatment or therapy, maybe there is no need to extend the probation.

But if he is not able to do that, it is to his benefit to extend the probation. Wouldn't you agree?

[APPELLANT'S COUNSEL]: If you look at it in that way, yes.

The court instructed the parties to work with the assignment office to reschedule the case for a hearing before the original term of probation expired in February 2009. The court ordered that, until the hearing, appellant was to continue to make monthly payments of $100.

On February 12, 2009, the court held another hearing. Counsel for appellant gave the Assistant State's Attorney a check from appellant in the amount of $3,955.24, which covered all therapy costs incurred as of November 10, 2008. Counsel noted that the victim had given her documentation regarding additional costs incurred since the November 2008 hearing, in the amount of $900. Although appellant objected to paying any costs that were not attributable to the assault, he had paid “everything that was due pursuant to the claim through the November hearing of 2008.” Counsel noted that appellant's probation was set to expire in 15 days. He objected to the State's request to extend the probation, stating:

My point, among others, on a very practical level, not a legal argument, is the fact that with this ongoing restitution issue not ever having been resolved, if the probation were extended Mr. Carter could be on probation for life. He has paid now a total, since this case began, of $5,355.24.

Your Honor, enough is enough. I would just suggest that Mr. Carter has done everything in compliance with the order of probation since February of 2007. With the probation due to expire, I think this case should be closed as is.

The State acknowledged that it was difficult to determine whether the therapy that the victim was receiving addressed the assault, as opposed to the divorce. The prosecutor noted, however, that some of the victim's stress resulted from appellant's failure to pay...