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In Re N.G.

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.

FACTUAL SUMMARY

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.

ANALYSIS

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 ...


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