Lopez-Sanchez v. State
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In the Circu it Court for H oward C ounty Case No. 13-J-00-7796 IN THE COURT OF APPEALS OF MARYLAND No. 43 September Term, 2004 OSCAR ANTONIO LOPEZ-SANCHEZ v. STATE OF MARYLAND AND DESHAWN C. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Rodo wsky, L awren ce F. (Retired, Specially Assigned), JJ. Opinion by Raker, J. Wilner and Harrell, JJ. concur Filed: July 28, 2005 Petitioner, the victim of a delinque nt act, sought reconsideration of a Consent Order for Restitution th at the Circu it Court for H oward C ounty had ap proved w ithout affording petitioner notice or opportun ity to be heard. T he Circuit C ourt, sitting as the Juvenile Court, denied petitioner s Motion for Reconsideration. The Court of Special Appeals dismissed petition er s app eal. We shall af firm. I. On February 29, 2000, respo ndent DeSh awn C. shot pe titioner, Oscar Anto nio Lopez-Sanchez, in the back as petitioner was on his way home from work. The bullet fractured petitioner s spine and right rib, with bullet fragments and bone fragments remaining in the spinal canal. As a result of the s hooting, pe titioner is paralyzed permane ntly from the chest down. The State filed a Petition for De linquency in th e Cir cuit C ourt for H owa rd County, sitting as a Juvenile Court, against DeShawn C. Following an adjudicatory hearing on October 27, 2000, a Juvenile Master found DeShaw n C. to be involved as to attempte d murder, first degree assault, second degree assault, and reckless endangerment. He was adjudicated a delinque nt child and committed to the custody of the Departm ent of Juv enile Justice (currently known as the D epartment of Juve nile Services). On May 16, 2001, the State s Attorney s Office for Howard County certified that the crime victim notific ation reque st form de scribed in Md. Cod e (2001, 2004 C um. Supp.), § 11-104(c ) of the Crim inal Proced ure Article 1 had been mailed or otherwise delivered to petitioner. On May 25, 2001, petitioner filed the completed Crime Victim Notification Request Form. 1 At the time of the events in qu estion, § 11-104 w as codified at former Art. 27, § 841(9). A ll statutory referen ce shall be to the current codification unless otherwise noted. Section 11-104(c) provides as follows: (1) Within 10 days after the filing or the unsealing of an indictment or information in circuit court, whichever is later, the prosecutin g attorney shall: (i) mail or deliver to the victim or victim s representative the pamphlet described in § 11-914(9)(ii) of this title and the notification request form described in § 11-914(10) of this title; and (ii) certify to the clerk of the court that the prosecuting attorney has co mplied w ith this paragraph or is unable to identify the victim or victim s represe ntative. (2) If the prose cuting attorney files a p etition alleging that a child is delinquent for comm itting an act tha t could only be tried in the circuit court if committed by an adult, the prosecuting attorney shall: (i) inform the victim or victim s representative of the right to request restitution under § 11-606 of this title; (ii) mail or deliver to the victim or victim s representative the notification request form described in § 11-914(10) of this title; and (iii) certify to the clerk of the juvenile court that the prosecuting a ttorney has com plied with th is paragraph or is unable to identify the victim or victim s represe ntative. (3) For cases described under this subsection, the prosecuting attorney may provide a State s witness in the case with the guidelines for vict ims, victims representatives, and witnesses availab le unde r §§ 11 -1001 throug h 11-1 004 of this title. -2- The Circuit Court held a disposition review hearing on July 24, 2001. The primary subject of this hearing was the future placement of DeShawn C ., who w as schedu led to complete a program at Bowling Brook Academy on July 28. Petitioner was present at the hearing, and his written victim impact statement was submitted to the court. In the sta tement, petitioner recounted how he had com e to the United States in order to send money home to his impoverished father and siblings in rural El Salvador, and how he had done so for two years by workin g at a We ndy s restauran t. He described himself as a prisoner in my own body, dependant on others for everything. He stated that [t]his young man has robbed me of the dreams I had until only God knows when. The statement concluded with the words [f]inally, Your Honor, I believe the law gives me the right to ask that this young man eventually make restitution to me for the harm he has done. I ask you to order him to pay restitutio n. The following colloquy took place with respect to restitution: THE COURT: Well, one o f the things th at he said in h is statement was about some type of restitution, was that adjudicated in front of the M aster? [PRO SECU TOR :] No, Yo ur Hono r, it was not. THE COU RT: Is that still an ope n possibility, or is that I mean, is that at this stage? Is that not available or w hat? I m asking out of ignorance here. [PRO SECU TOR :] Your Hono r, I don t know that it is. I don t believe that it is. My understanding is the initial all the hospital bills and me dical bills hav e been tak en care of , that is still an attempt for Criminal Injury s Compensation Board that -3- requires certain document[s] that Mr. Lopez does not have at this particular point in time. It did not cover the continuing medications, and I take f ull responsib ility for that, Your Hono r. On July 26, 2001, the Circuit Court entered an order committing DeShawn C. to the custody of the Department of Juvenile Justice until the age of 21, with the specifics of DeShawn C s placement to be at the Department s discretion. The order did not address restitution. On July 28, 2001 , petitioner sub mitted a w ritten request f or restitution pursua nt to § 11-603 of the Criminal Procedure Article,2 together with a request for a restitution hearing. 2 That section 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 r estitu tion in ad ditio n to a ny 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 med ical, dental, hos pital, counseling, funeral, or burial expense s; *** (iii) loss of earn ings; *** (5) the Criminal Injuries Comp ensation Board paid benefits to a victim; *** (b) Right of victims to restitution.- A victim is presumed to have a right to restitution under sub section (a) of this section if: (1) the victim or the State requests restitution; and (2) the court is presented with competent evidence of any item listed in su bsection (a) o f this (contin ued...) -4- Included in this request was documentation of petitioner s economic losses, including pay stubs demonstrating lost wages exceeding $21,000. DeShawn C. filed a motion to dismiss the request, which the State oppos ed. The Court scheduled a restitution hearing, but postponed the hearing at the joint request of the DeShawn C. and the State, who were then attemp ting to n egotiate an agre ed-upo n amo unt of r estitution . In June, 2002, DeShawn C. and the State submitted a proposed Consent Order for Restitu tion. DeSha wn C. w as to pay petition er $4,427.5 0 as restitution, re flecting only medical expenses, and not including petitioner s lost wages. The proposed order was not sent to petitioner, nor was petitioner notified that it had been submitted to the court. Without a hearing, the Court signed and filed the Consent Order for Restitution on June 20, 2002. Petitioner was contacted on June 27, 2002 by an assistant state s attorney, who informed him that the Consent Order had been filed. Petitioner filed a Motion to Reconsider Order or, Alternatively, to Alter or Amend Judgme nt, asserting tha t he had be en denied his right to receive notice of court proceedings under § 11-104(e) of the Crim inal Procedure Article 3 , and his presumptive right to restitution under § 11-603(b) of the Criminal Procedu re 2 3 (...continued) section . Section 11-104(e) provides, in pertinent part, as follows: (1) The prosecuting attorney shall send a victim or victim s representative prior notice o f each co urt proceed ing in the case, of the terms of any plea agreement, and of the right of the victim or victim s repre sentative to su bmit a victim impa ct statement to the court un der § 11-4 02 of this title if: (contin ued...) -5- Article. He filed a Motion for Access to Court Records, asserting that h e had goo d cause to access the records of the juven ile proceeding, as required un der § 3-8A-27 (b)(1) of the Courts and Judicial Proceedings Article.4 He requested that the restitution be increased from $4,427.50 to $10,0 00, the statutory limit in delinquency proceedings under § 11-604(b) of the Crimin al Proc edure A rticle. Both DeShawn C. and the State opposed the reconsideration motion on the grounds that petitioner w as not a party to th e delinque ncy proceed ing and did not have standing to seek reconsideration of the order of restitution. 3 (...continued) (i) prior notice is practicable; and (ii) the victim or victim s representative has filed a notification request form under subsection (d) of this sectio n. *** (3) As soon after a proceeding as practicable, the prosecuting attorney shall tell the victim or victim s representative of the terms of any plea ag reement, judicial action, and proceeding that affects the interests of the victim or victim s representative, including a bail hearing, change in the defendant s pretrial release order, dismissal, no lle prosequ i, stetting of cha rges, trial, disposition, an d postsente ncing cou rt proceedin g if: (i) the victim or victim s representative has filed a notification request form under subsection (d) of this section and prior notice to the victim or victim s representative is not practicable; or (ii) the victim or victim s representative is not present at the proceeding. 4 Section 3-8A-27(b)(1) provides: A court record pertaining to a child is confidential and its contents may not be divulged, by subpoena or otherwise, except by order of the court upon good cause shown or as provided in § 7-303 of the Education Article. -6- The Circuit Court held a hearing on April 16, 2003, and on May 1, 2003, denied the motion on the ground that the victim in this case cannot be fo und to be a par ty, and therefore does not h ave standin g before th is court. Th e court stated as follow s: The victim here does have a compelling case that he has not been compensated in any way that is commensurate with the severe injuries he ha s suffered and will su ffer for the rest of his life. He remains confined to a wheelchair as a result of Responden t s actions and he likely will not soon be able to be fully employed because of language barriers and his low educational attainment as well as his disability. Mr. Lopez-Sanc hez s situation is one that would m erit attention if the Court had the power to address it. H oweve r, it appears that the current statutes and rules do not allow th e Court to e ntertain a request for relief of the nature filed here where the State does not join in the request. On June 2, 20 03, petitioner filed both an Application for Leave to Appeal and a Notice of Appeal. The State and DeShawn C. filed motions to dismiss petition er s appea l. The Court of Special A ppeals granted the Application for Leave to Appeal. In a reported opinion, the intermediate court dismissed the app eal. Lopez-Sa nchez v. Sta te, 155 Md. App. 580, 843 A.2d 915 (2004). The court held that petitioner had no right to bring a direct appeal under Md. Code (1973, 2002 Repl. Vol, 2004 Cum. Supp.), § 12-301 of the Courts and Judicial Proceedings Article, because petitioner was not a party to the delinquency proceeding, and did no t have a suf ficiently direct interest in the outcome to fall within the narrow range of case law permitting technical non-parties to bring appeals. The court further held that pe titioner had n o right to file an Application for Leave to Appeal under § 11-103 -7- of the Criminal Procedure Article, because h e was no t a victim of a violent crim e within the mean ing of the sta tute, and that th e court w as withou t power to grant leave to appeal. We granted Oscar Antonio Lopez-Sanchez s petition for writ of certiorari to consider the following questions: 1. Can the victim of an act of juvenile delinquency appeal the denial of statutory rights granted to th e victim in juv enile proc eedi ngs b y the G ener al Assem bly? 2. Does a v ictim have s tanding to a ssert his statutorily-granted rights in the trial co urt? 3. Whether the petitioner has been denied due process of law under the United States and Maryland Constitutions? Lopez-Sa nchez v. Sta te, 381 Md. 677 , 851 A.2d 596 (2004). 5 5 We also granted DeShawn C. s conditional cross-petition for certiorari to consider the following questions: 1. In light o f the pro visions of [M d. Cod e (2001 , 2004 Cum. Supp.), § 11-811 of the Criminal Procedure Article], requiring the reduction o f any award by the Crim inal Injuries Compensation Board in the amount of any payments received or to be received from the offender, and the award by the board of $25,000 to petitioner, any increase in an award to petitioner will require a set-off from his aw ard by the Board. As p etitioner s total monetary award cannot, therefore, increase if he succeeds in this Court, he h as no finan cial stake in the litigation. Under these circumstances, does he lack standing to prosecute this appeal, does this case fail to present a c ognizable appellate issue, or is it mo ot? 2. Assum ing a non- party victim of a delinquent act has the right to prosecute a n appeal f rom an o rder entered in a juvenile delinquency case, is this appeal cognizable or does petitioner lack standing w here the ap peal does n ot involve th e denial of (contin ued...) -8- II. Before this Court, petitioner argues that he enjoys a right of direct appeal under Md. Code (1973, 2002 Repl. Vol., 2004 Cum. Supp.), § 12-301 of the Courts and Judicial Proceedings Article.6 He argues that, as the victim of a delinq uent act, he h as a uniqu ely strong interest in the determination of restitution in this matter, in notice of proceedings, and in his op portun ity to be he ard. He points to Article 47 of the De claration of R ights 7 and to 5 (...continued) any of the rights secured by [Md. Code (2001, 2004 Cum. Supp.), §§ 11-302(c), 11-402, 11-403, or 11-404 of the Criminal Procedure Article] or § 6-112 of the Correctional Services Article? 3. Would an increase in the amount of restitution ordered as part of respondent DeShawn C. s disposition in juvenile delinquency proc eedi ngs v iolat e the prov ision agai nst d ouble jeo pard y? Because we conclude that petitioner has no right to appeal, we reach only the first question presented in the petition for certiorari, and none of the questions presented in the cross-petition. 6 The Co urt of Spe cial Appe als held that p etitioner wa s neither a p arty entitled to appeal under Md. Code (1973, 20 02 Rep l. Vol, 2004 Cum. S upp.), § 12- 301 of th e Courts and Judicial Proceedings Article, nor a victim of a violent crime entitled to seek leav e to appeal under Md . Code (2001, 20 04 Cum. Su pp.), § 11-103 of the C riminal Procedure Article. Petitioner has abandoned his contention that he has the right to seek leave to appeal under § 11-103 of the Criminal Proced ure Ar ticle. See Petition for Certiorari No. 97, 2004 Term, at 6 n.4 (stating At this time, Antonio only pursues the relief sought under his notice of appeal and not the relief sought under his application for leave to appeal. ) 7 Article 47 of the Declaration of Rights, ratified November 8, 1994, provides as follows: (a) A victim of crime shall be treated by ag ents of the S tate with dignity, res pect, and sensitivity during all phases of the (contin ued...) -9- numerous Maryland statutes addressing victims rights as indicia of the strength of the interest that M aryland h as reco gnized in victim s of crim es and d elinque nt acts. He relies heavily on Md . Code (19 73, 2002 Repl. Vo l., 2004 Cu m. Supp .), § 3-8A-0 2 of the C ourts and Judic ial Proceed ings Article, w hich prov ides, in pertine nt part: The purposes of this subtitle [Juvenile Causes Children Other Than C INAs a nd Adu lts] are: (1) To ensure that the Juvenile Justice System balances the follow ing objectives for children who ha ve comm itted delinque nt acts: (i) Public safety and the protection of the com munity; (ii) Accountability of the child to the victim and the community for offenses committed; and (iii) Competency and character development to assist children in b e c o m i n g r e s p o n s i b l e a nd produ ctive m embe rs of so ciety. The State argue s that the right to appeal in Maryland is a creatu re of statu te en tirely. The State contends that § 12-301 of the Courts and Judicial Proceedings Article, providing 7 (...continued) crimina l justice p rocess. (b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal ju stice procee ding, as these rights are implemented and the terms crime , criminal justice procee ding , a nd vic tim are specifi ed by law . (c) Nothing in this Article permits any civil cause of action for monetary damages for violation of an y of its provisions or authorizes a victim of crime to take any action to stay a criminal justice p roceed ing. -10- for the general right to appeal from final judgments, applies only to parties, and that petition er is not a party to the delinqu ency pro ceedin g. III. The right to appeal in Maryland is who lly statutory. See Pack Shack v. Howard County , 371 Md. 243, 247, 808 A.2d 795, 797 (2002). Parties to civil and criminal actions enjoy a right to app eal from f inal judgm ents under Md. Code (1973, 2002 Repl. Vol., 2004 Cum. Supp .), § 12-301 of the Courts and Judicial Proceedings Article. That statute provides as follows: Except as provided in § 12-302 of this subtitle [enumerating various exceptions not relevant here], a party may appeal from a final judgmen t entered in a c ivil or criminal c ase by a circuit court. The right o f appeal ex ists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particu lar case the rig ht of appe al is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitu r may cro ss-app eal from the fina l judgm ent. Section 12-303 of the Courts and Judicial Proceedings Article also provides parties to civil actions the right to appe al from ce rtain interlocuto ry orders not at issu e in this case. A salient feature of both statutes is that the grant of appellate rights extends only to parties. A victim is not a pa rty to a crim inal pro secutio n. See Cianos v . State, 338 Md. 406, 410-11, 659 A.2d 291, 293 (1995). The non-party status of crime victims has been a central -11- precept of Maryland criminal jurisprudenc e ever since public pros ecution be came the s ole metho d of en forcing this State s crimin al law. Delinquency proceedings while civil in nature are too similar to criminal prosecutions to warrant different treatment vis-à -vis victim status. Under § 3-8A-03(a) of the Courts and Judicial Proceedings Article, a juvenile court has exclusive original jurisdiction over a child allege d to be delin quent. Th e jurisdiction o f the juven ile court is initiated by a representative of the State filing a petition alleging delinqu ency. See § 3-8A-13 of the Courts and Judicial Proceedings Article. A delinquent act is defined by § 3-8A-01(k) of the Co urts and Judicial Proceedings Article as an act which would be a crime if committed by an adult. A child may not be adjudicated delinquent unless the State proves each element of the offense beyond a reasonab le doubt. Juveniles enjoy due process protections and many rights enjoyed by adult criminal defendants. In fact, so many rights enjoyed by criminal defenda nts have bee n held to apply in juvenile proceedings that many of the procedural distinctions between the two types of proceedings, (with the notable exception of jury trials and indictment proceedings), have all but di sappea red. See In re Wins hip, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) (proof beyond reasonable doubt standard in adjudica tory phase); In re Gault, 387 U.S. 1, 27-59, 87 S. Ct. 1428, 1444-60, 18 L. Ed. 2d 527 (1967) (rights to due process, notice of charges, assistance of counsel, confrontation, transcript of proceedings, appellate review, and privilege against self-incrimination); In re Thomas J., 372 Md. 50, 57- -12- 58, 811 A.2d 310, 314-15 (2002) (right to speedy trial); In re Michael W., 367 Md. 181, 185, 786 A.2d 68 4, 687 (20 01) (prohib ition against d ouble jeopardy); In re Parris W., 363 Md. 717, 724; 770 A.2d 202, 206 (2001) (right to effective assistance o f counse l); In re Anthony R., 362 Md. 51, 76, 763 A.2d 136, 150 (2000) (statute of limitations equivalent to that for criminal misdeme anor offe nses); In re Montrail M., 325 Md. 527, 532-538, 601 A.2d 1102, 1103-07 (1992) (do ctrine of m erger); In re William A., 313 M d. 690, 698, 548 A.2d 130, 133-1 34 (19 88) (inf ancy def ense). A criminal act is an offense against the sovereign, a wrong injurious not only to the victim but to the public at large, and, as such, is brought in the name of the State of Maryland. A delinqu ency procee ding is also broug ht in the nam e of the Sta te of Maryland. The right, and duty, to proceed with a delinquency action and to accept a plea or disposition in a delinque ncy proceed ing lies so lely with the State s Attorney, not the victim, and the prosecutor s decision may not be vetoed or appealed by the victim. A juvenile proceeding furthers the interests of the State and the public as a whole, although the prosecutor may, and as a matter of policy should, confer with and consider the wishes of the victim. B ut that is not to say that the victim is a party to the case, o r that a dissatisfied victim has the righ t to appeal. The Court of Special Appeals explained the limitations as follows: Delinquency proceedings only can be initiated by the filing of a petition by the State s A ttorney. A priva te person ca nnot file a delinquency petition, and, if a delinquency petition has not been filed, the juvenile court lacks jurisdiction to make a -13- restitution award. Although the decision to file a delinquency petition can be generated by a complaint by a private person, the decision rests with the prosecuto r, and mus t be made based on the best interests of the public or the child. In making the decision, the prosecutor can consider as one factor in the public interest the need of the victim o f the alleged delinquent ac t. Lopez-Sanchez, 155 Md. App. at 600-01, 8 43 A.2d at 927 (citation s omitted). T he State, in a delinquen cy proceedin g, just as the S tate, in a crimina l proceedin g, is the party in the proceeding, represented by the State s Attorney. The victim is not a party to the proceeding and acts only as a witness, although vested with statutory and constitutiona l rights to restitution. Because the victim is not a party, he or she does not enjoy the general right of appeal found at § 12-301 of the Courts and Judicial Proceedings Article. Petitioner relies on cases where this Court has recognize d a non-party s right to bring a limited appe al from de cisions affe cting the party s direct and substantial interests. In particular, most of these appeals were direct appeals from trial court orders denying me dia organizations access to proc eeding s. See Baltimore Sun v. Baltimore, 359 Md. 653, 665, 755 A.2d 1130, 11 37 (2000 ); Baltimor e Sun C o. v. State, 340 Md. 437, 447, 667 A.2d 166, 171 (1995); Baltimore Sun v. Colbert, 323 Md. 290, 297 -98, 593 A .2d 224, 22 7 (1991); Buzbee v. Journal Newspapers, 297 Md. 68 , 76, 465 A .2d 426, 43 1 (1983); News America n v. State, 294 Md. 30, 40-41 , 447 A .2d 126 4, 1269 -70 (19 82). See also Matter of Anderson, 272 Md. 85, 91-92, 321 A.2d 516, 519-20 (1974) (State permitted to appeal juvenile proceeding before enactment of statute m aking State party to juvenile causes), appeal dismissed, Epps v. Maryland, 419 U.S. 809, 95 S. C t. 21, 42 L. Ed .2d 35 ( 1974) , cert. denied, Anderson v. -14- Maryland, 421 U.S . 1000, 95 S . Ct. 2399, 44 L. Ed.2d 6 67 (1975 ); Karr v. Shirk, 142 Md. 118, 121, 120 A. 248, 249 (1923) (recognizing that non-parties with direct interest may be entitled to appeal bu t finding ap pellant law firm to hold no such in terest); Preston v. Poe, 116 Md. 1, 6, 81 A. 1 78, 179 (1 911) (reco gnizing sam e but findin g appellan t stockholde r to hold no such interes t); Hall v. Jack, 32 Md. 253, 263 (1870) (assignee of notes permitted to appeal but denied relief on m erits). Petitioner has not identified any case in which we have afforded a right to app eal in the light of a clearly co ntrary legis lative inte nt. The General Assembly has addressed the appellate rights of crime victims, and in so doing has considered and rejected legislation that would have gran ted appellate rights to victims in delinquency proceedings. Md. Code (2001, 2004 Cum. Supp.), § 11-103 of the Criminal Procedure Article provides, in pertinent part, as follows: (a) Violent crime defined. (1) In this sectio n, violent crim e means: (i) a crime of violence; or (ii) except as p rovided in paragraph (2) of this subsection [governing certain transportation and natural resources offenses ], a crime involving, causing, or resulting in deat h or s erious bo dily in jury. *** (b) Right to file for leave to appeal. Although not a party to a criminal proceedin g, a victim of a violent crime for which the defendant is charged may file an application for leave to appeal to the Court of Special Appeals from an interlocutory or final -15- order that denies o r fails to consider a right secure d to the victim by § 11-3 02(c), § 11-402, § 11-403, o r § 11-404 of this title or § 6-112 of the Correctional Services Article.[8] (c) Stay of other proceedings. The filing of an application for leave to appeal under this section does not stay other procee dings in a crimin al case u nless all p arties co nsent. The Court of Special Appeals held that this statute does not apply to victims of delinquent acts, stating as follows: A delinquent act, being one which would be a crime if committed by an adult[,] CJ 3-8A-01(k) (emphasis added), is not a crime; and it is for that reason that a juvenile who has been found to have committed a delinquent act has not been found guilty of a crime. The language of section [11-103] not only requires that the victim be a victim of a crime but also expressly contemplates, by the use of the word defendant . . . and the phrases criminal proceeding and criminal case . . . , that the proceeding giving rise to the application for leave to appeal be for or in connection with the prosecution of a crime. Petitioner does not n ow cha llenge this holding, tha t § 11-103 grants limited appellate righ ts to the vic tims of certain c rimes, b ut no ap pellate rig hts to the victims of delin quent a cts. 8 Section 11-302(c) of the Criminal Procedure Article governs the right of v ictims to be present at trial. Section 11-402 governs the right of victims to submit victim impact statements for use in presentence investigations. Section 11-403 governs the right of victims and victims representatives to address the court during sentencing and disposition hearings. Section 11-404 governs the right of victims representatives to address the jury during the sentencing phase in death pe nalty trials. Md. Code (1999, 2004 Cum. Supp.), § 6-112 of the Correctional Services Article mandates that the Division of Parole and Probation include a victim im pact stat emen t, if subm itted, in p resente nce inv estigatio n repor ts. -16- As the intermediate ap pellate court noted, prior to enacting the Victims Rights Act of 1997, 1997 Md. Laws Ch. 312, the Legislature had considered and rejected an amendment to § 11-103 (then codified as Art. 27, § 776) that would have replaced the current definition of victim with, inter alia, a victim of . . . a crime as defined under § 770 of this a rticle. See Senate Bill 173 (1997). At that time, Art. 27, § 770(a)(2) defined victim as an individual who suffers direct or threatened physical, emotional, or financial harm as a direct result of a crime or delinquent act . . . . (Emphasis added.) Thus, not only is § 11-103 silent as to a right of appeal for victims of delinquent acts, but the plain language of the statute reflects a rejectio n of lan guage that wo uld hav e create d this rig ht. Although the cases cited by petitioner indicate a narrow judicial enlargement of the general right to appeal under § 12301 of the Co urts and Jud icial Proceed ings Article, it would b e illogical to ex tend this enlarge ment to victims of delin quent a cts. The Legislature has enacted a statute, § 11-103 of the Crimin al Procedure Article, add ressing the a ppellate rights of victims. T he rights granted by that statute do not extend to the victims of delinquent acts. When later amending § 11-103, the Legislature considered and rejected granting appellate rights to these litigants. IV. Victims rights have received considerable attention in recent years, and rightfully so. On both the federal and state levels, legislatures have expressed the strong public policy that victims should have more rights and should be informed of the proceedings, that they should -17- be treat ed fa irly, and in certain cases, that they should be heard. These rights, provided by the Maryland Legislature and the Marylan d Constitu tion, are to be followed and respected. If, however, the prosecutor or the trial court does not follow the law with respect to a victim s rights in a juve nile procee ding, the L egislature ha s not given to the victim the genera l right to a ppeal th at decisi on. In the instant case, the victim is not a party to the delinquency proceeding and therefore cannot appeal. The General Assembly considered and rejected legislation that would have conferred such a right on the victims of delinquent acts. Any right of the v ictim to appeal, or to file an appli cation for leave to appeal, must originate from the General Assemb ly, not from this C ourt. 9 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 9 Petitioner is no t without a legal remedy for the injuries he has suffered. He has been greatly wronged and has suffered enormously because of DeShawn C. s delinquent act. The conduct that caused appellant s injuries is a tort as well as a delinquent act, and DeShawn C. may be lia ble in a c ivil action . -18- In the Circu it Court for H oward C ounty Case No. 13-J-00-7796 IN THE COURT OF APPEALS OF MARYLAND No. 43 September Term, 2004 ______________________________________ OSCAR ANTONIO LOPEZ-SANCHEZ v. STATE OF MARYLAND AND DESHAWN C. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. ______________________________________ Conc urring O pinion by Wilne r, J., joined by Harrell, J. ______________________________________ Filed: July 28, 2005 With great reluctance, I concur in the judgment. After years of effort on the part of victims rights organizations and general direction in a 1994 Constitutional Amendment (Md. Decl. of Rts. Art. 47), the Legislature, through the enactment of the Victims Rights Act of 1997, confirmed and expanded the right of victims, in both criminal and delinquency proceedings, to be present in court, to address the court at an appropriate time, to request restitution, and, if the fa cts warrant, to have the court order restitution. The statutes in that regard are clea r and no t really in dis pute. The Court concludes, however, and correctly so, that, notwithstanding that supposed beneficence to victims, the L egislature has not afforded victims the right to appeal if those basic rights are denied. Presumably as a matter of rationally considered public policy, the General Assembly has therefore made those hard-won rights largely illusory. Although disciplinary proceedings conceivably may be brought against a judge who wilfully violates clear statutory rights, there seems to be no efficient remedy for a victim, like Mr. LopezSanchez, if a judge, whether in good or bad faith, denies the victim the rights the Legislature has conferred.1 1 Judges are not, and should not be, ordinarily subjected to disciplinary proceedings merely for misconstruing or not following the law. Except in extraordinary cases, correction of error is left to the appellate process. When that process is unavailable, however, judges have a special duty to be careful to assure that rights spe cifically conferred on people either by Constitution al manda te or, as here, b y statute are not k nowingly denied or violated. Canon 3 A. (1) of the Maryland Code of Judicial Condu ct (Maryland Rule 16-813) requires a judge to be faithful to the law. C anon 3 A. (5) requ ires a judge to accord to ev ery person who is legally interested in a proceed ing, or the pe rson s law yer, full right to be heard accord ing to law . (contin ued...) It is important to keep in mind what the real issue is in this case. Mr. Lopez-Sanchez is not asking this Court to grant him additional restitution. His complaint is that he was deliberately and wro ngfully excluded from the trial court s consideration of what was denominated as a consent order that was intended predominantly for his benefit but to which his consent was never sought and never given that he was not consulted before the order was presented to the court, that the court acted wrongfully in signing it without a hearing and without notice to him , and that he w as denied h is right to addr ess the cou rt with respect to the matter and he is absolu tely correc t. He was not only not afforded those rights; he was denied them. The Circuit Court, in my view, was in clear error in signing the consent order ex parte, without notice to the victim, who had properly requ ested such notice, and th en in denying his motion for reconsideration on the ground that he did not have standing to make the motion. The gross injustice to Mr. Lopez-Sanchez, and the legal errors that produced that injustice, become clear when one considers what actually occurred in the Circuit Court and the kinds of arguments offered by the State and the perpetrator of the atrocious attack on him, both in the C ircuit Court a nd on ap peal. 1 (...continued) The Court, in a footnote, observes th at a victim is fre e to sue his/h er assailant fo r civil damages. As we p ointed out in Grey v. A llstate, 363 Md. 445, 458-59, 769 A.2d 891, 899 (2001), howev er, one of th e principal re asons for a llowing crim inal (and Ju venile) cou rts to order restitution wa s that once the State ex acted its retribu tion, through either fine or imprisonm ent, there was little or nothing left for a victim to collect from the offender in a civil pro ceedin g. -2- On Febru ary 29, 20 00, petitioner was shot in the back while on his way home from work and, as a resu lt, was sever ely injured. The lower part of his body remains permane ntly paralyzed. In Au gust, 20 00, the 17-year-old respondent, DeShawn C., was arrested and initially charged in the criminal division of the Circuit Court with a range of crimes, headed by attemp ted mu rder. At some point, the criminal court, pursuant to Maryland Code, § 4-202 of the Criminal Procedure Article (CP) and over the State s objection, waived its jurisdiction over the criminal action and transferred the case to the division of the court sitting as a Juvenile C ourt, and a petition was filed in that court alleging that DeShawn was a delinquent child. On February 26, 2001, the court adjudicated DeShawn to be a delinquent child and ordered his placement at Bowling B rook Academ y, subject to further order of the court as to disposition. The adjudication was based on a finding that DeShawn had committed acts which, if committed by an adult, would constitute attempted murder, first degree assault, second degree ass ault, and reck less endan germent. On July 24, 2001 , just prior to his scheduled release from Bowling B rook, the court conducted a hearing to determine what further to do with DeShawn, who apparently had made significant progress at Bowling Brook. In conformance with what is now CP § 11104(c), the prosecutor had notified petitioner of his right to request restitution pursuant to CP § 11-606, and, in response, petitioner had filed a proper notification request form stating that he wished to receive no tice about a ll events related to my case and the defendant/juvenile, -3- as required by law, so that I have the opportunity to exercise the rights that I am entitled to as a crim e victim . 2 The court wa s advised a t the hearing that, pursuan t to a claim pe titioner had f iled with the Criminal In juries Com pensation B oard, all of his hospital and medical bills had been paid, and that, once proper documentation was asse mbled, co mpensa tion wou ld be provided for continuing medications. Although petitioner submitted a poignant written victim impact statement in support of a request for restitution, nothing was done with respect to restitution at that time.3 At the conclusion of the hearing, the court committed DeShawn to the Department of Juvenile Services (DJS) until he reached the age of 21, for placement 2 At the time of these events, the relevant statutes were codified in Article 27 of the Code. All of thos e statutes, in the meanwhile, have been recodified as part of the Criminal Procedure Article, 200 1 Md. L aws, ch. 10 , which too k effect O ctober 1, 2001. For convenience, I shall use the current statutory references. 3 In relevant p art, petitioner in forme d the co urt: I w as born in El Sa lvador . My mother died when I w as 8 years old, and I lived with m y father. There was civil war in my country when I was g rowin g up. I n ever w ent to sc hool. M y family was very poor. We raised corn an d bean s to eat. I came to this country with one goal: to work and send money home to my family. I wo rked for m ore than tw o years at We ndy s in Columbia and sent as much as I could to my father. He supports my brother and four sisters . . . . All I did was work and go home at night. This shooting has made me a prisoner in my own body. I am paralyzed from the ch est down. I can t walk, and I am in pain . . . . I had always been independe nt. Even as a child, I hunted and fished to help feed my family. Now I have to depend on my uncle and other relatives for every little thing. I ho pe to wo rk again, bu t I will need help with transpo rtation to the job, a nd ther e will be many job s that I ca nnot do . . . . Your Honor, my parents never learned to read and write, but they did teach me the difference between right and wrong. . . . My parents did teach me how to respect other people. Since I was sh ot, I hav e learne d to wr ite in my o wn lan guage . Now I need to learn to work from a whee lchair. F inally, Yo ur Ho nor, I believe the law gives me the right to ask that this young man eventually make restitution to me for the harm he has done. I ask you to order him to pay restitu tion. -4- designated by that Depa rtment. 4 On Augus t 1, 2001, pe titioner filed a f ormal requ est for restitution, attaching the statement he submitted at the July 24 hearing, co pies of his pay stubs showing a wage loss of $21,000 as of then, and various pharmacy bills. He stated in the request that any bills not attached to the form would b e presente d to the Co urt at the Re stitution hearin g in this matter. In a motion to dismiss that request, DeShawn averred that it was untimely and that the State had wa ived petitione r s right to restitution. The prosecutor responded that the request was timely, that the State had not waived petitioner s right to restitution, and that petitioner w as seeking restitution not o nly from D eShaw n but from his father as w ell. See Marylan d Cod e, Cts. & Jud. Pro c. Article (CJP) § 3-8A -28 and CP § 1 1-604 (a). By agreement between DeShawn and the State, nothing of significance then occurred for nearly eleven months. On June 20, 2002, without an y notice to petition er and app arently without a hearing, the court entered a Consent Order of Restitution agreed to by the State s Attorney and DeShawn, in wh ich DeShaw n was ordered to p ay restitution to petitioner, through DJS, in the amount of $4,427, subject to further ord er of the co urt. That am ount did not cover any wage loss sustained by petitioner as a result of the shooting and was considerab ly less than the $10,000 maximum allowed by CP § 11-604(b ). Petitioner w as told about the Consent Order by the prosecutor on June 27, 2002. 4 The Department s name has changed a number of times. It was then known as the Department of Juvenile Justice but I shall use the ab breviation of its present nam e (DJS). -5- On July 1, 2002, the hitherto unrepresented an d non-English-spe aking petitioner, having obtained counsel through the Maryland Crime Victim s Resource Center, filed a motion for access to the Juvenile Court records and a motion to reconsider and to alter or amend the restitution order. He confirmed that he had received no notice of the Consent Order prior to its presentation to and adoption by the court, that he had not received a copy of it, and that, because Juvenile C ourt records are confidential, he could not even get a copy from the cou rt. In the motion for reconsideration or to alter or amend, he complained that the right to restitution was his, not the State s, and that he had n ever consented to the O rder. Based on p ay stubs documenting his pre-shooting earnings, petitioner averred that he had suffered by then more than $30,000 in wage losses as a result of the shooting and may have sustaine d med ical exp enses n ot includ ed in the Cons ent Ord er. DeShawn objected to both motions, claiming that petitioner was not entitled to access the court s records, that he had no standing to request further restitution or even file a motion to alter or amend the judgment, and that any increas e in restitution at th at point wo uld violate his right against double jeo pardy. The S tate had no objection to giving petition er access to the records but agreed that petitioner had no standing to upset the Consent Order. It alleged that the amount agreed to was based on documented receipts for prescriptions and the estimated cost of a wheelchair and that, at the time the Order was prepared, there was no evidence of any other loss warranting restitution. The State informed the court that petitioner had received $25,000 from the Criminal Injuries Compensation Commission and that another -6- $20,000 was possibly available for future medical expenses. Ten months elapsed without any consideration being given to the motion to reconsider the restitution order. In the meanwhile, in March, 2003, at the request of DJS, DeShaw n s case was transferred to Ohio, where DeShawn had gone to live with his mother. There was some evidence that DeSh awn at that point had paid only $1,900 less than half of the required restitution. Whether that was in keeping with the schedule established by DJS is not clear. In Ap ril, the co urt held a hearin g on the motion s. In explaining why lost wages were not included in the Cons ent Orde r, the prosecu tor advised , but presente d no evide nce to support, that petitioner did not have legal status in the United States and that he had been working under a false social security number. The prosecutor also averred that, due to a subrogation lien held by the Criminal Injuries Compensation Board on account of its award, the Board would be entitled to recover any additional restitution that might be p aid or payable to petitioner. On May 1, 2003, the court entered a Memorandum and Order denying the motion for reconsideration. Though recognizing that petitioner had a compelling case that he has not been compensated in any way that is commensurate with the severe injuries he has suffered and will suffer f or the rest of h is life, the cou rt, citing two C ourt of Sp ecial App eals decisions (Hart v. Bull, 69 Md. App. 229, 516 A.2d 1043 (1986) and In re Zephrin D., 69 Md. App. 755, 519 A.2d 806 (19 87)), held that, the current statutes and rules do not allow the Court to entertain a request fo r relief of the nature here where the State does n ot join in -7- the request. T he court thu s conclud ed that, as petitioner was not legally a party to the juvenile procee ding, he does n ot have standin g befo re this co urt. Petitioner filed both an appeal and an application for leave to appeal to the Court of Special Appe als. Although the intermediate appellate court initially granted the application for leave to appeal without opposition, it ultimately decided that petitioner was without standing to file or prosecu te an appe al. Lopez-Sa nchez v. Sta te, 155 Md. App. 580, 843 A.2d 915 (2004). The direct appeal was dismissed upon a finding that petitioner was not a party to the juvenile proceeding and had no inte rest in the appellate proceedin g that migh t give him an extended party status. The application for leave to appeal, the court added, was based on what is now CP § 11-103, allowing the victim of a violent crime, though not a party to a criminal proceeding, to file such an application from a final or interlocutory order that denies a right secured to the victim by certain enumerated sections of the Criminal Procedure and Correctional Services Articles. Because it concluded that petitioner, though a victim, was not the victim of a violent crime, as that term was defined in the statute, the court held that he had no right to file an application and that the court theref ore had n o authority to gra nt it. The appeal was thus d ismissed. As the Co urt notes, we granted Mr. Lopez-Sanchez s petition for certiorari and DeShawn s cross-petition to decide whe ther the Juvenile Court acted correctly in denying petitioner s motion for reconsideration and whether the Court of Special A ppeals acte d correctly in dism issing his direc t appeal. The laws dealing generally with the right of compensation, including restitution, for -8- victims of criminal or delinquen t behavior are set forth in CP, Title 11, principally, though not entirely, in subtitle 6, dealing spe cifically with restitu tion, and sub title 8, dealing w ith the Criminal Injuries Compensation Board. Although both a system of compensation by the State through the Crimina l Injuries Compensa tion Board and provision for restitution by the perpetrator have been in existence in Maryland for many years State compensation since 1968 and a limited right of restitution dating back at least to 1809 most of the laws dealing with the rights of victims of criminal and d elinquent behavior, including the right to seek and receive restitution, were reorganized by the Victims Rights Act of 1997 (1997 Md. Laws ch. 312), in light of Article 47 of the Maryland Declaration of Rights, adopted in 1994.5 See Grey v. A llstate, supra, 363 Md. at 462, 769 A.2d at 901. In a chrono logical sequ ence, the first rig hts relevant to restitution are those requiring notice to the victim o f his/her rights. CP § 11-914 re quires the S tate Board of Victim Services to develop pamphle ts informing victims of their statutory rights and a notification request form that can be used by victims to implement those rights. CP § 11-104(b) requires 5 Article 47 provid es, in relevant part, that (1) a victim of crime shall be treated by State agents with dignity, respect, and sensitivity during all phases of the criminal justice process, (2) in a c ase orig inating b y indictm ent or in forma tion filed in a Circ uit Cou rt, a victim of crime has the right to be informed of the rights established in this Article, and, on request and if practicable, to be notified of, a ttend, and be heard at a criminal justice proceeding , as those rights are implemented and the terms crime, criminal justice procee ding, and victim are specified by law , but (3) nothing in the Article permits any civil cause of action for monetary damages for a violation of its provisions or authorizes a victim of crime to take any action to stay a criminal ju stice procee ding. Article 47 itself says nothing about restitution. -9- law enforcement officers, District Cou rt Comm issioners, and DJS intak e officers to distribute the pamphlets to victims with whom they have contact. Section 11-104(c) requires prosecuto rs to distribute the pamphlets and the notification request form in criminal cases, and the notification request form in juvenile delinquency cases. That section specific ally requires prosecutors who file a petition alleging that a child is delinquent for committing an act that would have to be tried in the Circuit Court if comm itted by an adu lt (1) to inform the victim of the right to request restitution under § 11-606, (2) to mail or deliver to the victim a notification re quest form provided for in § 11-914(10), and (3) to certify to the clerk of the Juvenile Court that the prosecutor has either complied with those requirements or has been unable to do so . That w as appa rently don e in this c ase. If the victim desires to be notified of further proceedings, he/she must fill out the notification form and file it with the prosecutor, who then sends it to the clerk of the Circuit or Juven ile Cou rt. § 11-1 04(d). If such a form has been filed and prior notice is practicable, the prosecutor must send, or arrange for the clerk to send, prior notice to the victim of each court proceeding in the case. § 11-104(e)(1),(2). If prior notice is not practica ble or a victim who ha s filed a notif ication form is not in court, the prosecutor, as soon after a proceeding as practicable, m ust inform the victim of any plea agre ement o r judicial action th at affects the interests of the victim, including any disposition by the court. § 11-104(e)(3). That notice must include a copy of any commitment or probation order. § 11-104(f). For purposes of these notification provisions, a victim is defined as a person who suffers actual or -10- threatened physical, emotional, or financial harm as a direct result of a crime or delinquent act. § 11-104(a)(2). Petitioner was clearly a victim under that definition. In addition to these genera l notifica tion pro visions , § 11-614 provides that the prosecutor should, if practicab le, notify an eligible victim of the victim s right to request restitution and ass ist the vic tim to pr epare s uch a re quest. F or purp oses of that statu te, a victim is defined as a person who suffers personal injury or property damage or loss as a direct result of a crim e or delinqu ent act. § 11 -601(j)(1). T hat, too, wa s apparen tly done. The restitution request form filed by petitioner, that expressly requested and clearly anticipated a hearing on restitution, appeared to be on a standard pre-printed form. The second set of rights that bear on, but do not expressly deal with, restitution are the rights to attend court proce edings, to pre sent to the co urt a victim im pact stateme nt, and to address the court with respe ct to disposition or sentence. Subject to certain exceptions not relevant here, §11-302 (b) and (c) provide that a victim of a crime or delinquent act has the right, after testifying, to be present at the trial of the defendant or at an adjudicatory hearing of an a lleged d elinque nt child. Although § 11-302 refers only to an adjudicatory hearing in Juvenile Court, CJP § 38A-13(f), dealing specifically with Juvenile C ourt hearings, affords a greater right of victim presence. That section provides that, in a case in which a child is alleged to have committed a delinquent act that would be a felony if committed by an adult, the court shall condu ct in open court any hearing or other proceeding at whic h the ch ild has a right to a ppear, subject -11- to the right of the court, for good ca use, to exclu de the gen eral public a nd admit only the victim and those persons having a direct interest in the proceeding. (Emphasis ad ded). Under that statute, in light of the fact that the attempted murder and first degree assault charges included in the delinquency petition would constitute felonies if committed by an adult, petitioner clearly had a right to attend any disposition or other hearing that DeShawn had a right to attend. The right to make statements to the court, in the p resent conte xt, is provided for in §§ 11-402 and 11-4 03. Section 11-402(a ) provides, in relevant pa rt, that any predisposition investigation by DJS m ust include a victim impa ct statement if the delinquent child caused physical, psychologica l, or emotion al injury to the victim in committing a delinquent act that would be a felony if committed by an adult. Section 11-402(b) adds that, if a predisposition statement is not prepared by DJS, the v ictim may sub mit a victim im pact stateme nt directly to the court. T he court is required to c onsider a v ictim impact statement in determining an appropriate senten ce or dis position and in e ntering a judgm ent of re stitution. § 11-402(d). Section 11-403 re quires a cou rt, if practicable, to allow a victim who has filed a notification request form to address the court under oath at a sentencing or disposition hearing before the imposition of sentence or disposition. The right to, and procedures for obtaining, restitution are set forth in subtitle 6 of title 11. Section 11 -603(a), in rele vant part, permits a court to enter a judgment of restitution that, in addition to any other penalty, orders a criminal defendant or a delinquent c hild to make -12- restitution if, among other things , (1) as a direct re sult of the crim e or delinquent act, the victim suffered actual medical, hospital, or dental expenses, any other direct out-of-pocket loss, or loss of earnings, or (2) the Criminal Injuries Compensation Board p aid benef its to a victim. Section 11-603(b) provides that a victim is presumed to have a right to restitution under s ubsect ion (a) o f this sec tion if . . . the victim or the State requests restitution; and . . . the court is presented with competent evidence of any item listed in subse ction (a) of th is section . (Empha sis added ). Section 11-603(c) makes clear that a judgment of restitution does not preclude a victim who has suffered personal injury or loss of earnings from bringing a civil action to recover damages from the restitution obligor but that any civil verdict must be redu ced by th e amo unt paid unde r the crim inal judg ment o f restitutio n. In a juvenile delinquency proceeding, § 11-604 permits the court to order both the child and the child s parent to pay restitution, provided that the parent has been afforded a reasonab le opportun ity to be heard an d present ev idence. A restitution judgment under subtitle 6 may not exceed $10,000 in the aggregate. Section 11-605 permits a court to refuse to enter a judg ment of re stitution, but only if the court finds either that the obligor does not have the ability to pay the jud gment o r that extenuating circumstances exist that make a judgment of restitu tion inap propria te. If the court re fuses to ord er restitution, ho wever, it must state its rea sons on th e record. M ost of the rem aining sectio ns of sub title 6 deal with the enforcement and payment of restitution orders and are not relevant here. Unq uestiona bly, under the construct of these statutes, petitioner had a right to have -13- the Juvenile Court consider his request for restitution. He had a statuto ry right to presen t a claim; he had a s tatutory right to appear in court and su pport his claim, thro ugh both a victim impact statement that the court is required to consider in deciding upon a disposition and through an oral pres entation un der oath prio r to a disposition. Assuming that the claim was supportab le by evidence and is within the $10,000 limit, he is presumed to have a right to the restitution, including for loss of earnings. As noted, § 11-605 permits a court to deny restitution only if it finds that the obligor in not able to pay or that there are extenuating circumstances that make a judgme nt of restitution inapprop riate, and, if eith er finding is made, the court must state it on the record. So far as I can tell from this record, five substantive, non-procedural grounds were offered at different points, by either the State or DeShawn, for denying petitioner s request for additional restitution: (1) by agreeing to and ente ring into the C onsent O rder, the State had waived p etitioner s right to seek add itional restitution; (2) petitioner might not be entitled to restitution for wage loss because he did not have legal status in the United States and was working under a fals e social security number; (3) at the time the Consent Order was prepared, he had not documented any wage loss; (4) he either had received or would receive compensation from the C riminal Injurie s Comp ensation B oard for h is wage losses and that Board would be entitled to recover as a subrogee any additiona l restitution paid by DeShawn (or his father, whose liability was never apparently considere d); and (5) a ny increase in restitution above the amount set in the Co nsent Ord er would violate DeShawn s protection -14- against double jeopardy. I am unable to find any argument by the State or DeShawn or any finding by the court that DeShawn would be unable to pay additional restitution. The court made no finding that any of those asserted grounds constituted an extenuating circumstan ce that [w ould] mak e [an add itional] judgm ent of restitution inappr opriate, and, of the five substantive grounds asserted, only the second, on this record, might possibly constitute such a circumstance: (1) I can find nothing in the law that allows the State to waive a victim s right to restitution for his/her own injury and loss. So long as the victim files a proper request, the statutory right to seek restitution belongs to the victim, not the State. Although, in expressing its view as to what a proper disposition might be for a particular juvenile delinquent, the State is certainly free to present evidence and argument that restitution generally or above a certain amount would be inappropriate under the circumstances, I can find no author ity for the State, on its ow n initiative, to w aive a victim s right to seek th e restitution. To imply such authority would run counter to the entire thrust of subtitle 6. (2) I can find nothing in this record actually to docume nt that petitioner was unlawfu lly in this country merely an unsupported a ssertion at one point by the prosecu tor. Nor has it been established that unlawful status in the country would serve as a legal barrier to restitution for wage losses. Nonetheless, had such an unlawful status been established, it may be that the court could have found that status to be an extenuating circumstance that would make additional restitution inappropriate. It is possible, perhaps even likely, that, if, -15- indeed, petitioner was not a legal resident, his employment would have been terminated for that reason, on ce that fact c ame to ligh t. That is quite irrelevant, however, as the court made no such finding and did not deny the restitution on that basis. (3) The State s assertion that when the Consent Order was prepared there was no documentation of any wage loss is not only unsupported, but is, in fact, contradicted by the record. Petitioner attached to the request he presented to the court on August 1, 2001 ten months before the Consent Order was prepared pay stubs showing taxable wages earned in 1998 of $13,821, in 1999 of $15,214, and through the third week in February, 2000 of $2,235. At that fairly consistent rate, his wage loss after the shooting was about $21,000. As noted, he expressly asked for a hearing on that request and advis ed that any do cuments not attached to the written request would be presented to the court a t that hearing. T he State never questioned the accuracy of the pay stubs or disputed that the shooting alone rendered petition er unab le to wo rk. The Consent Order was not prepared until June, 2002, and petitioner was never afforded an opportunity, prior to approval of the Order, to comment on or object to it. Th at, in my view, clearly was error. DeShawn had a right to be present when that Order was considered by the court, even though he could, and apparently did, waive tha t right. Because he had the right to be present, however, under CP § 11-102(a ) and CJP § 3-8A-1 3(f), so did petitioner. (4) It may be that, in claiming non-documentation of wage loss, the State was -16- relying on petitioner s recovery of compensation from the Criminal Injury Compensation Board, which was a sserted later as an independe nt ground for d enying petitioner s motion to reconsider the Consent Order. CP § 11-603 (a) permits a c ourt to order restitution if any of six enumerated circumstances exist, one of which is that (5) the Criminal Injuries Compensation Board p aid benefits to a victim. Read alone, that section constitutes a basis for granting, not denying restitution. It must be read in conjunction with CP § 11-817, however, which provides that acceptance of an award from the Board subrogates the State, to the extent of the award, to any right or righ t of action o f the claima nt or the victim to recover payments on account of losses resulting from the crime or delinquent act with respect to which the award is made, including the right to recover restitution ordered under § 11-603 of this title. Read together, those statutes permit the co urt to order restitution when there has already been an award by the Board but allows the Board, to the extent of the award , to seek and collect the payment of that restitution if it chooses to exercise its right of subrogation. I see three problems with the presumed invocation of § 11-817 here. The first is that the State never expressly exercised its right of subrog ation. Indee d, as the Bo ard is a State agency within the Department of Public Safety and Correctional Services (see CP §§ 11804(a) and 1-101(f)) and the Attorney General, not an y State s Attorney, is the statutory counsel for that Board (see Maryland C ode, § 6-10 6(b) of the State Gov ernment A rticle), it would not appear that a prosecutor has any authority to exercise the Board s or the State s -17- subrogation power in any event. The second is that the right subrogated is the right to recover restitution. Section 11-817 does not preclude an additional award of restitution any more than it wou ld have precluded the restitution provided for in the C onsent Order. It simply would have allowed the State to intercept the payment if it chose to do so. Most important, however, the court did not rely on that prospect as an extenuating circum stance. (5) The double jeopardy issue presented by DeShawn and the State is one of first impression in this State. Both the Federal Constitution, through the Fifth and Fourteenth Amendments, and Maryland common law prohibit the State from placing a p erson mo re than onc e in jeopardy for the sam e offense . As this Court most recently explained in Anderso n v. State, 385 Md. 123, 130, 867 A.2d 1040, 1044 (2005), citing Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed.2d 187 (1977) and Purne ll v. State, 375 Md. 678, 827 A.2d 68 (2003), [t]hat prohibition provides a dual protection against prosecuting a person for an offense after that person has a lread y been prosecuted for, and either convicted or acquitted of, the same offense, and again st imposing multiple pun ishments for the same offense. Although the protection against double jeopardy was intended to apply only to criminal prosecutions and punishments, both the Suprem e Court and this Co urt have made clear that, at least in some settings, it applies in juvenile d elinquenc y proceeding s as well, notwithstanding that, in a legal and jurisprudential sense, those proceedings are regarded as civil, not crim inal, in na ture. See In re John P., 311 Md. 700, 707, 537 A.2d 263, 267 -18- (1988), citing Breed v. Jones, 421 U.S. 519, 529, 95 S. Ct. 1779, 1785, 44 L. Ed.2d 346, 355 (1975); see also In re Mark R., 294 M d. 244, 254 -55, 449 A .2d 393, 39 9 (1982); Parojinog v. State, 282 Md. 256 , 262-63, 384 A .2d 86, 89 (1978). Most of the double jeopardy applications to delinquency proceedings have involved the sequential prosec ution b ranch o f the do ctrine. Breed v. Jones is illustrative. Based on alleged conduct that would have constituted armed robbery if committed by an adult, a 17year-old juvenile was charged in a California juvenile court with delinquency. After an adjudicatory hearing, the court found that the allegations in the petition were true and that the child was delinquent. At a subsequent disposition hearing, however, the court determined that the child was not amenab le to treatment in the juvenile system and transferred the case to the criminal court, where the child was tried anew for the criminal offense, convicted, and comm itted to C aliforn ia You th Auth ority, whic h could detain h im until a ge 25. Noting the gap that had developed between the originally benign conception of the juvenile court system and its mod ern realities, the S upreme C ourt conclu ded that a juvenile is, indeed, placed in jeo pardy at a pro ceeding w hose obje ct is to determine whether he has committed acts that violate a criminal law and w hose pote ntial conseq uences inc lude both the stigma inherent in such a determination and the depriv ation of liberty for m any years. Breed v. Jones, supra, 421 U.S. at 529, 95 S. Ct. at 1785, 44 L.Ed.2d at 355. In that regard, the Court observed that, in terms of practical consequences, there was little distinction between the adjudicatory hearing held in that case and a traditional criminal prosecution, and -19- it found, as a consequence, that the juvenile had been placed in jeopardy at the adjudicatory hearing and that he could not lawfully be subjected to a second trial in criminal court for the same offense. Compare Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699, 57 L. Ed.2d 705 (1978) (holding that State s filing of exceptions to Juvenile Master s findings and recommendations and resolu tion of thos e exception s by a judge did not viola te Doub le Jeopardy Clause). Parojinog was to the same effect. The defendant, after turning 18, was charged in the Juvenile Court with delinquency based on offenses committed while he w as 17. The State asked the court to waive its jurisdiction in favor of prosecution in criminal court. After two hearings on that motion, the court held the matter sub curia but, pending another hearing, ordered the defendant to undergo a six-month program of therapy under the supervision of DJS and to pay restitution in the amount o f $3,562. S ix months later, the court w aived its jurisdiction and an indictment was filed against the defend ant. O n appeal from a denial of his motion to dismiss th e indictmen t, we conc luded that th e orders issu ed by the Juv enile Court requiring six months of daily therapy and the payment of restitution were dispositional in nature and necessarily an adjudication that the defendant had committed delinquent acts. Parojinog v. State, supra, 282 Md. at 262, 384 A.2d at 8 9. Accor ding ly, we held that his prosecution in the criminal court would subject him to a successive prosecution and to the risk of multiple pu nishmen t, in violation of the federal constitutional prohibition against double jeopardy. Id. at 265, 3 84 A.2 d at 91. See also In re Mark R., -20- supra, 294 Md. 244, 449 A.2d 39 3 (holding that, where adjudicato ry hearing bef ore Juven ile Court master had commenced, two witnesses testified, and master then declared mistrial without juvenile s consent and without manifest necessity, double jeopardy precluded anothe r adjud icatory he aring b efore a judge) . The double jeopardy context here is not one of successive prosecution after jeopardy has attached bu t more of w hether any increase in the amou nt of restitution ordered w ould constitute a prohibited multiple punishment for the same offense. DeShawn and the State, noting hold ings from this C ourt that r estitu tion constitutes a crim inal p enal ty, assert that the pena lty, once imposed, cannot be increased based on the same conduct. That issue was presented to the Court of Special Appeals in In re Darnell F., 71 Md. App. 584, 526 A.2d 971 (1987 ), cert. denied, 311 Md. 144, 532 A.2d 1371 (1987), but the court did not address it, as it had not be en raised in th e trial court and there appe ared to be n o factual b asis for it in any event. 6 A judgment of restitution is a criminal pe nalty, when e ntered in a crimina l case. See Grey v. Allstate, supra, 363 Md. at 451, 769 A.2d at 895. We have never regarded an order 6 In Darnell F., after finding the juvenile to be delinquent, the court scheduled a hearing on the victim s request for r estitution. When the prosecutor failed to appear, the court dismissed the request but then reinstate d it in response to the prosecutor s motion for reconsideration and ultimately awarded restitution. The juvenile appealed, contending that the court had no reviso ry authority over restitution orders and that, even if it did, its action violated double jeopard y. The ap pellate c ourt, in an opinion authored by Judge Bell, now Chief Judge of this Court, held that the Juve nile Court did have revisory power and properly exercised it. The double jeopardy issue was not addressed. -21- entered in a juvenile delinquency case requiring the child to pay restitution as a criminal penalty, however. Such an orde r, wh en direct ed ag ainst the c hild, has always been regarded by us as solely rehabilitative.7 In In re Herbert B., 303 Md. 419, 427, 494 A.2d 680, 684 (1985), the Court noted that a stated purpose of the Juvenile Causes law was to provide a program of rehabilitation consistent with the child s best interest and protection of the public interest, and th at: In concert with this legislative purpose , restitution is rehabilitative in several important respects. For example, restitution impresses upon the child the gravity of harm he has inflicted upon another, and provides an opportunity for him to make amends. In addition, res titution make s the child accounta ble for his acts by leading him to realize the seriousness of such acts and to acce pt responsibility for them. Finally, an obvious purpose o f restitution is that it compen sates the victim for the child s delinqu ent act. . . Properly view ed, restitution is benef icial to bo th the ch ild and th e victim . (Empha sis added). We said nothing there about restitution ordered against a child being intended to punish o r being pu nitive in nature, nor is such an intent articulated in the current language of the statute. There is another important distinction, beyond the punitive vs. rehabilitative comparison, between an order of restitution entered in a criminal case and one entered 7 A restitution order entered against a parent has been regarded by the Court of Special Appea ls as punitive in nature, to the extent that it arises from a presumed neglect of parental respon sibilities. In re Appeal No. 321, 24 Md . App. 82, 8 5, 329 A .2d 113, 11 4 (1974); In re Zephrin D., supra, 69 M d. App . at 761, 5 19 A.2 d at 809 , superseded by statute as stated in In re Jason W., 94 Md. App. 731, 631 A .2d 163 (1993 ), cert. dismissed, 332 Md. 509, 632 A.2d 76 7 (1993); In re John M., 129 Md. A pp. 165, 174, 741 A .2d 503, 508 (199 9). -22- against the child in a delinquency case. In a criminal case, a restitution order, unless entered as a condition of probation, is entered as a judgment that becomes part of a criminal sentence. Although Federal double jeopardy principles do not absolutely preclude a criminal sentence from being increased when author ized by sta tute, see United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed .2d 328 (1 980), once such a sen tence is enter ed, it is ordinarily final. Except when sentence review is sought by the defendant under CP §§ 8-101 through 8-109, or an appeal is taken by the State under CJP § 12-302 to correct the failure of a court to impose a sentence mandated by law, the sentence may not be increased after it is imposed. The revisory pow er of the co urt extends only to modif ications that are clarifying in nature or that d o not ad versely af fect the defen dant. That is not entirely the case in delinquency proceedings. Unless the court terminates its jurisdiction earlier, a Juvenile Court retains jurisdiction over a delinquent child until the child reaches 21, CJP § 3-8A-07(a), and it may make appropriate changes to dispositional orders so long as th at jurisdiction co ntinues. W ith two exc eptions no t relevant here, Maryland Rule 11-116 provides that an order of a Juvenile Court may be modified or vacated if the court finds that action to be in the best interest of the child or the public. A custody determination may be modified. CJP § 3-8A-24. If the child is committed to an individual or institution, the court may require the custodian to file periodic reports w ith recommendations for further supervision, treatment, or rehabili tation. CJP § 3-8A -25. In a more gen eral way, the co urt may contro l the condu ct of a per son prop erly before the -23- court if it finds that the conduct may be detrimental to the child or to a disposition made or to be made, will tend to defeat execution of an order or disposition made or to be made, or [w]ill assist in the rehabilitation of or is necessary for the we lfare of the child . CJP § 38A-26(1). The Consen t Order en tered in his ca se, on its face , reflects the continuing jurisdiction of the cou rt. The la st provis ion of th e Orde r, just above the signatures of the judge and counsel, was All subject to further Order of this Court. There is no double jeopardy violation when such a provision is implemented by the Juvenile Court. In United States v. DiFrancesco, supra, 449 U.S. at 137, 101 S. Ct. at 437, 66 L. Ed.2d at 346, the Court made clear that [t]he Double Jeopardy Clause does not provide the d efendan t with the righ t to know at any specific m oment in tim e what the exact limit of his punishm ent will turn o ut to be. Continuing, the Court concluded: All this highlights the distinction between acquittals and sentences. North Carolina v. Pearce [395 U.S. 711 , 89 S. Ct. 2072, 23 L. Ed.2d 656 (1969)] and Bozza v. United States [330 U.S. 160, 67 S. Ct. 645, 91 L. Ed .2d 818 (1 947)] dem onstrate that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase. Because of the critical difference between an acquittal and a sentence, the acquittal cases . . . do not require a contrary result. DiFrancesco, supra, 449 U.S . at 137-38, 1 01 S. Ct. at 4 38, 66 L. E d.2d at 346 ; see also Pennsylvan ia v. Goldhammer, 474 U.S. 28, 106 S. Ct. 353, 88 L. Ed.2d 183 (1985); Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. E d.2d 270 (1981 ). -24- The Courts of Appea l for the Dis trict of Colu mbia and the Secon d and Fo urth Circuits have interpreted the holding of DiFrancesco as permitting a court to reconsider and modify a defendant s sentence when the defendant does not have a reasonab le expectatio n of finality in the sentence. In United States v. Fogel, 829 F.2d 77, 87 (D.C . Cir. 1987), the court explained: [T]he application o f the doub le jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant s expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. If, however, there is some circumstance which undermines the legitimacy of th at ex pect ation , then a cou rt ma y permissibly increas e the sen tence. See also United States v. Pettus, 303 F.3d 480, 487-88 (2d Cir. 2002) (noting that [t]he requirement that a defendant only be punished once for a particular crime does not mean that this punishment cannot be modified or extended and involves the reasonable expectations of the defen dant ); United Sta tes v. Bello, 767 F.2d 1065, 1070 (4 th Cir. 1985) ( DiFrancesco directs the Court s inquiry to whethe r the defen dant had a legitimate ex pectation o f finality as to the severity of his sentence, in order to determine whether an increase in the sentence is essentially a multiple punishment for the sa me offense. ). Under this Constitutional umbrella, the statutes noted give the Juven ile Court ample authority to require additional restitution, beyond that provided in the Consent Ord er, if a case can be made for it, and the Consent Order itself belies any reasonable expectation on the part of D eShaw n in its finality. The prohibition against Double Jeopardy did not preclude -25- the Juvenile Court from entertaining petitioner s motion for reconsideration and request for additional restitution. What all of this reveals to me is that there was n o substantiv e basis for th e Circuit Court to deny petitioner s request to challenge the C onsent O rder that wa s unlawf ully presented to the court a nd unlaw fully signed by the court. Nor can I find any semblance of merit in the Circuit Court s conclusion that petitioner had no standing to seek reconsideration of that Order. When petitioner filed his motion for reconsideration, within five days after being advised of the Consent Order by the prosecutor, the case was not o ver. The court retained, and late r exerci sed, its co ntinuin g jurisdi ction. Petitioner had the same status when he filed the motion as he had before the C onsent O rder was signed a statutory stan ding to request restitution and to support that request. As noted near the beginning of this Concurring O pinion, the issue is not whethe r Mr. Lopez-Sanchez should receive additional restitution. Had the Circuit Court allow ed him to make his argument and then denied the motion for reconsideration on the ground that the restitution provided in the Consent Order was sufficient, that would have ended the matter in a legally approp riate way. What happened here was wrong, however, and, even though this Court is powerless to correct the error, I think it important to make clear that there was, in fact, error d eeply prejudicia l error. The C ircuit Court h eld petitioner s timely and properly filed request for restitution for nearly eleven months, then improperly entered an order providing far less than what petitioner requested and the law allows, and then, after -26- holding the matter sub curia for a n additio nal te n mo nths , den ied p etitio ner h is leg islati velyconferred right to supp ort his reque st. Judge Harrell has authorized me to state that he joins in this concurring opinion. -27-
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