Lindsey v. State

• Decision Date: 27 August 2014
• Docket Number: Sept. Term, 2012.,No. 495,495
• Parties: Andrew LINDSEY v. STATE of Maryland, et al.
• Court: Court of Special Appeals of Maryland

218 Md.App. 512

98 A.3d 340

Andrew LINDSEY

v.STATE of Maryland, et al.

No. 495, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Aug. 27, 2014.

Victor D. Stone (Russell P. Butler, Maryland Crime Victims' Resource Center, Inc, on the brief) Upper Marlboro, MD, for appellant.

Rachel Simmonsen (Paul B. DeWolfe, Public Defender, on the brief) H. Scott Curtis (Douglas Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: DEBORAH S. EYLER, GRAEFF, and HOTTEN, JJ.

DEBORAH S. EYLER, J.

Andrew Lindsey, the appellant, was shot and seriously injured in the course of an attempted robbery perpetrated by Shyquille Griffin and Antonio Whitely. Both men were charged with attempted first-degree murder and related offenses in the Circuit Court for Prince George's County. Griffin entered into a written plea agreement, which was conditioned upon his cooperating with the State in the case against Whitely. The plea agreement made no reference to restitution. The circuit court accepted Griffin's plea.

At Griffin's sentencing hearing, Lindsey for the first time made a request for restitution. The court denied it on the ground that ordering Griffin to pay restitution would violate the terms of the plea agreement. The court proceeded to sentence Griffin. Thirty days thereafter, Lindsey filed a motion under Md.Code (2001, 2008 Repl.Vol., 2011 Supp.), section 11–103(e)(2) of the Criminal Procedure Article (“Cr. P.”),¹ alleging that his right to restitution under section 11–603 had been improperly denied and asking the court to enter a judgment of restitution.² After a hearing, the court denied the motion on the same ground it had denied restitution at the sentencing hearing and on the additional ground that ordering Griffin to pay restitution would be an impermissible increase in his sentence.

Lindsey filed an application for leave to appeal, which was granted. Griffin and the State of Maryland both are appellees. Griffin has moved to dismiss the appeal for lack of jurisdiction.

For the reasons to follow, we shall deny the motion to dismiss and shall hold that the circuit court abused its discretion in denying Lindsey's motion. We shall vacateits order and remand the matter for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS

The attempted robbery took place on May 26, 2011. Lindsey was 22 years old, was working as a barber, and, apparently, also was involved in the marijuana drug trade. That day, Griffin, an old friend of Lindsey, arranged for Lindsey to sell seven grams of marijuana to Whitely, an acquaintance of Griffin. The three men met at a gas station parking lot in Upper Marlboro, Lindsey in his car and Griffin and Whitely in Griffin's car. Griffin walked over to Lindsey's car, and Lindsey gave him the marijuana. Griffin took it to Whitely, who weighed it, and concluded that it was short of seven grams. Griffin returned to Lindsey's car and asked “what else he had in the car.” Whitely then approached Lindsey's car, pointed a handgun at Lindsey, and demanded “everything that [Lindsey] had in the vehicle.” When Lindsey tried to drive away, Whitely fired shots in his direction, striking him in the left arm.

Lindsey managed to drive to his father's house and from there he was transported by ambulance to the hospital. The bones in his left arm were shattered by the bullet. He underwent bone fusion surgery for which he was financially responsible, because he had no health insurance. Lindsey is left-handed. Due to his injuries he no longer can work as a barber.

On June 23, 2011, a grand jury in the Circuit Court for Prince George's County indicted Griffin for attempted first-degree murder, attempted second-degree murder, robbery with a deadly weapon, attempted robbery, first and second-degree assault, use of a handgun in the commission of a crime of violence, two counts of carrying a handgun, two counts of transporting a handgun on a roadway, possession of a regulated firearm by a person under the age of 21, attempted theft, and conspiracy to commit murder. The grand jury also indicted Whitely for a multitude of crimes arising out of Lindsey's shooting.

On December 16, 2011, Griffin appeared in court and entered a conditional ABA plea.³ At a bench conference, the terms of a written “Proffer Agreement” were placed on the record. Under the agreement, Griffin promised to give truthful information about his own “criminal liability” and that of others and to testify truthfully in the case against Whitely. The “potential benefit” to Griffin would be the State's agreement to a guilty plea to one count of attempted robbery, which carries a maximum sentence of 15 years, with a “sentencing cap of 15 years suspend all but 18 months[,]” with all other counts to be nol prossed. Defense counsel would be free to argue for less time. Griffin would receive “two points for permanent injury [to Lindsey], but zero points for weapon usage” in the presentencing investigation. The “Proffer Agreement” said nothing about probation, conditions of probation, or restitution. It contained language stating it was “the full and complete agreement of the parties.”

The court questioned Griffin about his age, educational level, ability to read and write, and whether he had read and understood the “Proffer Agreement.” As to the latter, Griffin confirmed that he had done so and was knowingly and voluntarily enteringinto the plea agreement. After that, the prosecutor recounted the evidence against Griffin and the court announced that it was “satisfied there [was] a factual basis to accept the plea.” Sentencing was scheduled for January 13, 2012.

The record does not reflect whether Lindsey or any representative of his was present in the courtroom on December 16, 2011, when the plea agreement was accepted. The record also does not reflect whether Lindsey or his family were given notice of that hearing.⁴

On January 13, 2012, the parties returned to court for the sentencing hearing. Also present were Lindsey's mother, Jamillia Williams (who was acting as Lindsey's representative); ⁵ his father; and his stepfather. None of them were represented by counsel. By then, Whitely had pleaded guilty to first-degree assault and use of a handgun in a crime of violence and was awaiting sentencing. The prosecutor and defense counsel agreed that Griffin had cooperated as he had promised to do and that his cooperation had been instrumental in bringing about Whitely's guilty plea.

At a bench conference, the prosecutor informed the court that, sometime after the December 16, 2011 plea hearing, Lindsey had asked for $9,700 in restitution. The prosecutor explained, “[W]hile there is nothing in the plea agreement about restitution, the victim understands the statute, has the absolute right to ask for that. The victim is asking for that. The defense, obviously, is exercising their right not to agree to pay that....”

Defense counsel argued that Griffin's plea agreement had been accepted by the court subject to conditions that had been fulfilled, and that the plea agreement as accepted did not include any obligation to pay restitution. He emphasized that the written “Proffer Agreement” made no mention of restitution and contained the “full and complete agreement of the parties” language. Defense counsel took the position that the State and lindsey were precluded by the terms of the plea agreement from obtaining restitution from Griffin.

The sentencing judge called Williams to the bench. He told her that, because Griffin had entered into a plea agreement with the State that did not include restitution, the court could not order him to pay restitution. The court advised Williams that Lindsey could file a civil action against Griffin for the sum she was seeking in restitution. Thereafter, the court heard argument on sentencing. Williams gave a victim impact statement.

Consistent with the plea agreement, the court sentenced Griffin to a term of 15 years' incarceration, with all but 18 months suspended. It ordered a three-year period of supervised probation. Using a court form, it imposed “All Standard Conditions” of probation, with some (including restitution) not checked off. Griffin was given credit for 231 days time served. The State entered a nolle prosequi on each of the remaining charges.

On February 13, 2012, Lindsey, now represented by counsel, filed a motion under section 11–103(e)(2), asserting that the circuit court had erred in denying his request for restitution because its legal conclusion that the terms of the plea agreement precluded it from ordering Griffin to pay restitution was incorrect. (For ease of discussion we shall refer to this motion as the “motion for reconsideration.”) Lindsey pointed out that in Lafontant v. State, 197 Md.App. 217, 13 A.3d 56cert. denied,419 Md. 647, 20 A.3d 116 (2011), this Court held that a circuit court did not violate the terms of the defendant's plea agreement, which did not include restitution, by sentencing him to a term of incarceration, a portion of which was suspended, in keeping with the plea agreement; ordering five years supervised probation; and including the payment of restitution as a condition of probation. Lindsey attached to his motion seven medical bills, totaling $10,762.75.⁶

On March 7, 2012, the court held a hearing on Lindsey's motion for reconsideration. Lindsey's lawyer argued that Lindsey had a right to restitution under section 11–603(b), so long as he produced competent evidence of his medical expenses, and that, under section 11–615, his medical bills were competent evidence of those expenses. Griffin's lawyer responded that the plea agreement as approved by the court on December 16, 2011, before Lindsey asked for restitution, was binding on the parties and capped Griffin's sentence. He maintained that the court could not modify Griffin's sentence to include restitution, as that would be an increase in the penalty agreed to by the parties, accepted by the...