December 9, 2010
IN RE N.G., APPELLANT.
Appeal from the Superior Court of the District of Columbia (DEL2871-08) (Hon. Jerry S. Byrd, Trial Judge)
The opinion of the court was delivered by: Reid, Associate Judge:
(Submitted October 26, 2010 )
Before WASHINGTON, Chief Judge, and REID, Associate Judge, and WAGNER, Senior Judge.
Appellant N.G. appeals from the trial court's judgment ordering him to pay restitution for damage to a stolen vehicle. In light of the requirements of our juvenile restitution statute and in the absence of the resolution of the motion for reconsideration filed in the trial court, we are constrained to vacate the court's restitution order and to remand this case for further proceedings consistent with this opinion.
The record reflects that on October 25, 2008, officers of the Metropolitan Police Department witnessed N.G. driving a 1996 Dodge Caravan that they suspected was stolen. A check of a stolen vehicle database confirmed their suspicion. The officers stopped N.G. and two other persons as they exited the vehicle. N.G. was arrested and charged with unauthorized use of a vehicle and receiving stolen property.*fn1
On November 6, 2008, N.G. entered an "involved" plea to unauthorized use of a vehicle, and the government dismissed a receiving stolen property charge. In its proffer of proof, the District indicated, in part, that N.G. was the driver of the stolen vehicle at the time of his arrest and that inspection revealed "a punched right front door lock and a punched ignition."*fn2 The District agreed not to oppose probation but reserved the right to request restitution. The trial court scheduled disposition for January 13, 2009, as well as the restitution matter. N.G. did not appear for the hearing on January 13, and the trial court issued a custody order.*fn3 The trial judge proceeded with the restitution hearing. The owner testified that his vehicle was damaged after it was stolen and his insurance company estimated that it would cost $5,019.47 to repair it. The owner further testified that he still had repair costs related to the damages in the amount of $2,434.72, which he would accept as the restitution amount. The court entered an order requiring N.G. to pay the $2,434.72 as restitution.
N.G. challenges the trial court's restitution order which was issued pursuant to D.C. Code § 16-2320.01.*fn4 He primarily contends that the trial court abused its discretion in issuing the order because (1) the amount of restitution is "excessive" given his age and inability to pay, (2) the restitution order unjustly applied only to him and not the two adults who were also in the vehicle when N.G. was apprehended, and (3) the trial court failed to follow the statutory provisions.
Before considering these arguments, we briefly review the restitution proceeding. The trial judge stated that N.G. had a right to be present for the restitution hearing but had forfeited that right. The owner of the stolen car, Herman Hicks, Jr., testified that his insurer, Allstate, estimated his loss as $5,019.47 minus the deductible of $50.00. Allstate wanted to total the car, but Mr. Hicks wanted it back. Therefore, Mr. Hicks arranged with Allstate to buy the car from them. He testified that the additional cost of repair for the damages to the car was $2,434.72, which he would accept as the restitution amount.*fn5 The trial judge admitted photographs showing damage to the outside of the vehicle. Mr. Hicks insisted that the damage reflected was not there before the car was stolen. At the end of Mr. Hicks's testimony, the trial court granted the restitution request in the amount of $2,434.72. Defense counsel pointed out that there were three persons involved and that N.G. should be responsible for only one-third of the restitution amount. The trial judge declared that he had jurisdiction only over N.G.; the other two persons were prosecuted as adults.
N.G. appeared in court the following day.*fn6 He declared that he did not punch the ignition, that it was already out at the time he drove the car, and he maintained that the only damage he caused was to the front left light of Mr. Hicks's car. He did not believe that he should be responsible for all of the restitution because there were two other persons involved. The trial court expressed willingness to reconsider the restitution order. The judge believed that N.G. could be held liable for all the damage to Mr. Hicks's car, but he asked defense counsel to provide a legal memorandum to assist in the resolution of the proportional liability issue raised by N.G. The court proceeded to announce the disposition of the case.*fn7
On February 11, 2009, N.G. filed a motion requesting reconsideration of the restitution order. He contended, in part, that there was no evidence that he had caused the damages to Mr. Hick's vehicle, he did not have the financial ability to pay the restitution amount, and the trial court should have considered the financial status of his parents.*fn8 During a hearing on February 12, 2009, at which N.G. was present, the court inquired as to how much N.G. made at his job. N.G. stated $7 per hour.*fn9 The trial court did not resolve the motion for reconsideration during the hearing, but stated that it would issue a written restitution order.
We have never construed the District's juvenile restitution statute. D.C. Code § 16-2320.01 (a)(1)(A) provides that the trial court "may enter a judgment of restitution 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: [s]tolen, damaged, . . . or substantially decreased the value of the property of another . . . ." Section 16-2310.01 (b) specifies that the court "may order the child to make restitution directly to the victim . . . after consideration of the age, circumstances, and financial ability of the child to pay." Section 16-2320.01 (d) mandates that "[a] restitution hearing to determine the liability of . . . a child . . . shall be held within 30 days after the disposition hearing and may be extended . . . for good cause." And, § 16-2320.01 (i) states that "[i]f at the restitution hearing the [court] finds that a child is financially unable to pay restitution pursuant to subsection (b) of this section, the [court] may order the child to perform community service or some other non-monetary service of equivalent value in lieu thereof."
To interpret a statute, "[w]e look to the plain meaning of the statute first, construing words according to their ordinary meaning." Abadie v. District of Columbia Contract Appeals Bd.*fn10 "The literal words of [a] statute, however, are not the sole index to legislative intent, but rather, are to be read in light of the statute taken as a whole, and are to be given a sensible construction and one that would not work an obvious injustice." Id.*fn11 "In
appropriate cases, we also consult the legislative history of a statute." Id.*fn12
"The trial court has broad discretion in imposing a restitution order under the statute." Southall v. United States.*fn13 But, that discretion "controls [only if] there is a factual basis in the record to support the court's determination of the amount of the restitution." Sloan v. United States.*fn14
To place the restitution provision in context, it is appropriate to
turn to the Council's overall legislative intent. The Council of the
District of Columbia added D.C. Code § 16-2320.01 to its juvenile
justice provisions as part of an omnibus revision in 2004. The
revision was "intended to strengthen the juvenile justice system by
effectively balancing the competing concerns of protection of public
safety and the rehabilitation of juvenile offenders."*fn15
The Council sought "to achieve that balance by ensuring
greater accountability on the part of youth, parents, and caretakers,
meeting the needs of crime victims and assuring their safety; . . .
and improving services to youth who enter the juvenile justice
D.C. Code § 16-2320.01 focused on the right of a victim to restitution in cases where the juvenile or his parent(s) have the ability to pay. As the Committee Report stated: "This section . . . allows a [j]udge to order, after consideration of their ability to pay, a child or his parent or guardian to pay restitution for property loss . . . . The [j]udge may also order other non-monetary forms of restitution, such as community service."*fn17
Under the plain meaning of the statute, there are at least two requirements before a judge may issue a restitution order involving a juvenile. First, under § 16-2320.01 (a)(1), the judge must find that the juvenile not only "has committed a delinquent act" but also that the damage to a victim's property is "a result of that delinquent act." Here, the trial court accepted N.G.'s plea to the charge of unauthorized use of a vehicle; this plea alone did not constitute an admission that N.G. caused damage to Mr. Hicks's vehicle. The record shows no factual findings relating to the cause of the damage to the vehicle. The only evidence in the record that N.G. caused any damage to the vehicle was his admission that he was responsible for damage to the front left light. But, under the juvenile restitution statute, it is essential to establish the causal connection between the juvenile's delinquent act and the damage to the victim's property. The District's statute is virtually identical to Maryland's in this respect,*fn18 and the Maryland Court of Appeals has said that "the key words in [its] statute are the requirements that the court find that 'a child has committed a delinquent act and during the commission of that delinquent act' has done certain things."*fn19
Even assuming we could infer that N.G. caused the damage to the ignition and the other parts of the vehicle, we would be confronted with a second statutory problem. Section 16-2320.01 (d) plainly states: "A restitution hearing to determine the liability of a parent or guardian, a child, or both, shall be held within 30 days after the disposition hearing and may be extended by the [court] for good cause shown." In addition, § 16-2320.01 (b) clearly directs the trial judge not to impose restitution before considering "the age, circumstances, and financial ability of the child to pay," and under § 16-2320.01 (i) the court may order the juvenile "to perform community service or some other non-monetary service of equivalent value" when it "finds that a [juvenile] is financially unable to pay restitution." The restitution hearing is mandatory.
The record shows that N.G. was a failing high school senior in need of tutoring, that he had a part-time job earning $7.00 an hour, and that he had a drug problem. However, there is no indication in the record that the trial court actually considered the statutory factors of N.G.'s "age, circumstances, and financial ability to pay," or the appropriateness of community service or some other non-monetary service of equivalent value before imposing the $2,434.72 restitution order. Hence, the trial court has not yet exercised its broad discretion within the parameters of the restitution statute. See Johnson v. United States.*fn20
It has not yet made "a reasoned inquiry into [N.G.'s] ability to pay" and the goal of "promot[ing] the rehabilitation" of the juvenile. See In re Don Mc.*fn21
Since the record is devoid of factual findings on the issue of the damage caused by N.G.'s delinquent act, and because it is not clear from the record that the trial court considered the statutory factors of "age, circumstances, and financial ability of [N.G.] to pay" restitution, we are constrained to remand this case to the trial court.
Accordingly, for the foregoing reasons, we vacate the restitution order of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.