In the Matter of Tyrek S.

• Decision Date: 17 November 1998
• Docket Number: No. 1,1
• Parties: In the Matter of TYREK S.
• Court: Maryland Court of Appeals

720 A.2d 306

351 Md. 698

In the Matter of TYREK S.

No. 1, Sept. Term, 1998.

Court of Appeals of Maryland.

November 17, 1998.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Celia Anderson, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (Retired, Specially Assigned).

RODOWSKY, Judge.

In this juvenile cause we granted the juvenile's petition for certiorari which contains the following two questions:

"1. Does a juvenile court lack authority to award restitution to a person who is not identified as a victim in the juvenile delinquency petition?

"2. Did the juvenile court err by imposing restitution where there was neither a showing by the State nor a finding by the master that Petitioner had the ability to pay restitution?"

The Court of Special Appeals answered the first question in the negative and concluded that the second issue had not been preserved. In re Tyrek S., 118 Md.App. 270, 702 A.2d 466 (1997). We shall affirm for the reasons given by the Court of Special Appeals.

In August 1996 the State filed a "Delinquency Petition and Complaint for Restitution" in the Circuit Court for Baltimore County, sitting as a Juvenile Court, alleging that Tyrek S., aged 14, was a delinquent child. The State alleged that Tyrek S. had committed twelve delinquent acts, all involving or connected with the taking, on August 6, 1996, and asportation of a motor vehicle owned by a Benjamin Blum.

The petition/complaint further alleged "[t]hat as a direct result of the aforegoing alleged delinquent act(s), the victim herein has sustained a pecuniary loss in an amount to be determined not to exceed ten thousand dollars ($10,000.00) per act." Only Benjamin Blum, the owner of the vehicle, was identified in the charges. No other person was described as a victim. Additionally, the petition/complaint listed as witnesses Benjamin Blum, three police officers, and one Daniel Gaff, who is described, infra.

The adjudicatory hearing was held before a master who found the following facts:

"Based on a statement of facts it was found that on August 6, 1996 at 3:15 p.m. Benjamin Blum parked his 1996 Volvo at the YMCA in Towson. The car was stolen. On August 8, 1996 at 6:45 a.m. the vehicle was involved in an accident on Greenspring Avenue. Daniel Gaff was driving his car when the Volvo struck his car. Respondents[, Tyrek S. and another juvenile,] were identified as two of the passengers in the Volvo. The respondent did not have permission to be in or use Mr. Blum's car.

"Count 2 was sustained and the remaining counts were nol prossed. A finding of delinquency was entered and the respondent was committed to the Department of Juvenile Justice for placement. Placement in the Enhanced Program was recommended. The respondent is to pay $50.00 to Benjamin Blum. A further hearing for restitution will be held on September 23, 1996."

Count 2 charged that Tyrek S. "did wilfully and without consent take and carry away a 1996 Volvo 850 with the intent to temporarily deprive Benjamin Blum of the use and possession of said property, in violation of Article 27, Section 349."¹ The nol prossed counts are set forth in the margin.² Upon receipt of the master's report the circuit court committed Tyrek S. to the custody of the Department of Juvenile Justice for placement.

The evidence before the master at the restitution hearing showed that Geico Insurance Company was the first party insurer against property damage to Benjamin Blum's Volvo, that the vehicle operated by Daniel Gaff was owned by his employer, Communications Construction Company, and that the first party insurer against property damage to the latter vehicle was Royal Insurance Company.

At the restitution hearing counsel for Tyrek S. took the position "that Mr. Gaff is not a victim in this case because ... he was not mentioned in the petition." Also at that hearing Tyrek S. testified that he has an eighth grade education, that he has no assets, and that he had earned a total of $42 from a job that he had had at a church.

The master found the facts and proposed the order set forth below.

"Based on the testimony of the representative from Geico Insurance, the company paid out, as a result of the damage done to the Volvo owned by Benjamin Blum, its insured, the sum of $26,321.00. The salvage value of the car is $5,000.00. A witness, an employee of Communications Construction Company, advised that as a result of the accident, it paid a $1,000.00 deductible.

"... The respondent is to pay $8,744.00 to Geico Insurance, $500.00 to Communications Construction Company and $656.00 to Royal Insurance Company."³

Tyrek S. excepted to the master's report. Specifically:

"5. Counsel excepts to the Master's award of restitution to Communications Construction Company and Royal Insurance Company on behalf of Daniel Gaff. Mr. Gaff was not a named party in the Petition....

"6. Counsel also excepts to the Master's order that respondent pay $8,744.00 to Geico Insurance Company, $500.00 to Communications Construction Company and $656.00 to Royal Insurance Company. Considering Respondent's age and his circumstances, Counsel submits that Respondent lacks the ability to make restitution in this case."

When the exceptions came on for hearing before the judge, counsel for Tyrek S. argued only the exception that was based on Mr. Gaff's not being named in the petition/complaint; the exception based on present inability to pay restitution was not argued.

At the exceptions hearing counsel for Tyrek S., under questioning from the court, acknowledged that, based on a conversation with the master at the adjudicatory hearing, she was "on notice" and "made aware" that restitution for the damage to the vehicle operated by Mr. Gaff would be considered at the restitution hearing. After taking the matter under advisement, the circuit court ruled from the bench that there was no requirement that a complaint for restitution be filed by the State, that the court had authority to award restitution, and that Tyrek S. had had the opportunity to present evidence on the issue of restitution. Judgment was entered on March 4, 1997, by docket entry noting "[e]xceptions overruled."

Tyrek S. appealed to the Court of Special Appeals, which affirmed. In re Tyrek S., 118 Md.App. 270, 702 A.2d 466 (1997). Thereafter, Tyrek S. timely filed with this Court a petition for certiorari containing the questions quoted in the first paragraph of this opinion.

I

At the time of the events in the matter now before us, authorization for restitution orders in juvenile causes was found in Md. Code (1974, 1995 Repl.Vol.), § 3-829 of the Courts and Judicial Proceedings Article (CJ),⁴ the relevant portions of which read as follows:

" § 3-829. Liability for acts of child.

"(a) In general.—(1) The court may enter a judgment of restitution against the parent of a child, the child, or both in any case in which the court finds a child has committed a delinquent act and during or as a result of the commission of that delinquent act has:

"(i) Stolen, damaged, destroyed, converted, unlawfully obtained, or substantially decreased the value of the property of another....

....

"(2) The court may order the parent of a child, a child, or both to make restitution to:

"(i) The victim;

"(ii) Any governmental entity, including the Criminal Injuries Compensation Board; or

"(iii) A third party payor, including an insurer, that has made payment to the victim to compensate the victim for a property loss under paragraph (1)(i) of this subsection....

"(3) (i) Restitution payments to the victim have priority over restitution payments to a third party payor.

"(ii) If the victim has been compensated for the victim's loss by a third party payor, the court may order restitution payments to the third party payor in the amount that the third party payor compensated the victim."

CJ § 3-829 formed part of CJ Title 3, Subtitle 8, "Juvenile Causes." "Victim" is a defined term for purposes of Subtitle 8, "unless the context of [its] use indicates otherwise." CJ § 3-801(a). " `Victim' means a person who suffers direct or threatened physical, emotional, or financial harm as a result of a delinquent act." CJ § 3-801(t)(1).

Tyrek S. notes that the Court of Special Appeals qualified Mr. Gaff as a victim under the CJ § 3-801(t)(1) definition, but argues that relying solely on this definition does not "consider the broader statutory context or the purposes of the Juvenile Causes Subtitle." His submission is that "victim" as used in CJ § 3-829 "refers to those persons who meet the § 3-801(t) definition and, according to the allegations in the Delinquency Petition/Complaint for Restitution, sustained property damage as a result of the delinquent act." Accordingly, Communications Construction Co. and Royal Insurance Co. did not meet the second prong of the test which he asks this Court to recognize.

Tyrek S. traces crime victims' increasing participation throughout the 1980s in the State's decision whether to file a delinquency petition. Asserting that the victim plays a "central role" in the delinquency petition process, he contends that the Juvenile Causes subtitle contemplates "a victim who has made his allegations, including his need for restitution, known to the intake officer and the State's Attorney and, consequently, has been identified in the Petition/Complaint as an individual who sustained pecuniary loss as a result of the alleged delinquent act and is seeking restitution." To buttress his assertion Tyrek S. points to the "clear and simple language" pleading requirement for juvenile causes petitions found in CJ § 3-812(a), concluding that "the interests of orderly procedure and rehabilitation of the juvenile are best advanced by limiting restitution to those...