In re Cody H.

• Decision Date: 24 March 2017
• Docket Number: No. 27, Sept. Term, 2016,27, Sept. Term, 2016
• Citation: 156 A.3d 823,452 Md. 169
• Parties: IN RE CODY H.
• Court: Court of Special Appeals of Maryland

452 Md. 169

156 A.3d 823

IN RE CODY H.

No. 27, Sept. Term, 2016

Court of Appeals of Maryland.

March 24, 2017

Nancy S. Forster (Forster, Johnson & LeCompte, Baltimore, MD), on brief, for petitioner.

Russell P. Butler, Esq., Upper Marlboro, for amicus curiae of Maryland Crime Victims' Resource Center, Inc.

Ryan R. Dietrich, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

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

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 cleaning solution. 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 farm machinery 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 times eight 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 and reduce that to an Order.

Thus, the juvenile court awarded restitution for loss of earnings for the 32–week period between Zachary's injury in September 2014 and the restitution hearing before the magistrate on April 29, 2015. The restitution award did not include any amount for Zachary's future loss of earnings, i.e. , the remaining eight-week period in the work study program which occurred after the restitution hearing.

Cody noted an appeal to the Court of Special Appeals, arguing that the juvenile court abused its discretion by ordering restitution in the amount of $5,000 for Zachary's loss of earnings because the magistrate erred by admitting the Roseda Farm letter and because Zachary's lost earnings were not a "direct result" of Cody's delinquent act. The Court of Special Appeals, in an unreported opinion, concluded that the information in the Roseda Farm letter was corroborated by the testimony of Zachary and of his father, which supported the reliability of the letter. The court thus held that the letter was sufficiently reliable to satisfy the relaxed evidentiary standard applicable to juvenile proceedings. The intermediate appellate court also found it significant that the magistrate expressed that the letter was irrelevant to his determination of the facts.¹ The Court of Special Appeals also held that the evidence adduced at trial constituted a competent basis for the court to reasonably conclude by a preponderance of the evidence that Zachary's loss of earnings was a direct result of the delinquent act. The court noted the possibility that additional evidence could have been introduced at the hearing to provide additional support for the juvenile court's conclusion, but explained that it is not within the purview of the appellate courts to consider additional ways in which the...