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National Crime Victim Law Institute

New and Noteworthy

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  • Antoine v. State, --- A.3d ---, No. 2880, 2020 WL 487289 (Md. Ct. Spec. App. Jan. 30, 2020)

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    Defendant pled guilty to second-degree assault, and the trial court took back the guilty finding and ordered probation according to the terms of the plea agreement. The trial court made the probation unsupervised in exchange for defendant paying restitution in an amount to be determined by the court. The victim was not present at the hearing because the assigned prosecutor in the case, not anticipating the plea negotiation, had told him that “nothing substantive would occur” during the hearing and “not to appear” in court. Upon learning of the plea agreement, the victim filed two motions with the trial court: (1) asserting violations of victims’ rights and asking the court to set aside the plea and disposition; and (2) seeking restitution. The trial court assumed for the sake of argument that the victims’ rights were violated, but found that it was not authorized to order a new sentence. The victim filed the writ of mandamus to enforce his rights, arguing that the trial court erred by, inter alia, violating Maryland’s Code of Criminal Procedure. Specifically, the victim argued that the trial court: (1) denied him an opportunity to submit a victim impact statement to the court as required under § 11-402(b); (2) failed to consider the victim impact statement in determining the appropriate sentence as required under § 11-402(d); and (3) declined to “allow [him] … to address the court under oath before the imposition of sentence” as required under § 11-403(b). The Court of Special Appeals agreed with the victim, finding that the trial court violated these statutory provisions, as well as the requirement in § 11-103(e)(1) that “the court shall ensure that the victim is in fact afforded the rights provided to victims by law.” In so finding, the appellate court stated that “[t]he statutory rights to present victim impact evidence are therefore meaningful only if they are afforded before a trial court formally binds itself to a particular disposition of a case.” The court highlighted that these rights are just as important when accepting negotiated plea agreements as when sentencing a defendant after a trial. The court then rejected the trial court’s conclusion that it lacked authority to provide a remedy for the violations. The court pointed to Sections 11-103(e)(2) and (3), and found that collectively, the provisions authorize a court, upon finding that a victim’s rights have been violated, to grant relief necessary to rectify the violation, provided that the victim requests relief within 30 days of the violation and that the remedy does not violate the defendant’s double jeopardy rights. The court outlined a three step process for determining whether a court can provide a remedy. First, did the victim request relief within 30 days of the violation? Second, what relief is necessary to remedy the violation? Third, would that remedy violate the defendant’s double jeopardy rights? In answering the second question, the court held “that when a crime has produced an identifiable victim who has made known his or her desire to submit a victim impact statement and provide testimony before disposition, a trial court must defer its decision to approve or reject the plea agreement until the victim has been afforded a reasonable opportunity to exercise those rights.” The court held that the necessary remedy would be to vacate the trial court’s approval of the plea agreement so that the trial court could consider the victim’s impact evidence before deciding whether to approve the plea agreement. Turning to the third question, and whether such a remedy is authorized, the court looked to the federal Fifth Amendment double jeopardy jurisprudence and concluded that it was. The court reasoned that the proposed remedy did not disturb the guilty plea itself, only the sentence and the agreement that would bind the court to impose that sentence. The only way defendant’s guilty plea would be undone is if he elected to withdraw it if the trial court refused to impose the agreed sentence after hearing from the victim. As such, the appellate court vacated defendant’s sentence and the court’s approval of the plea agreement and remanded the case for further proceedings consistent with the opinion.

  • In re Brown, 932 F.3d 162 (4th Cir. 2019)

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    Defendant pleaded guilty to three traffic violations relating to a collision she caused while driving under the influence of alcohol. The victim, who suffered serious injuries that required at least seven surgeries within a year of the collision, requested restitution for lost past wages as an electrician during the period of time between the collision and the sentencing hearing. In support of his restitution request, the victim submitted federal tax returns, an affidavit detailing his physical struggles, and a letter from his doctor indicating that the victim was using a walker and would require twice-weekly physical therapy for the next six months. The doctor’s note predicted that the victim would be unable to resume his regular full-time work as an electrician for a year to year and a half from the time of the injury. The victim told the court that he did not intend to pursue any civil action against defendant and that he was not requesting restitution for future medical expenses. The trial court, finding “no reason not to believe” the victim’s accounting of loss, nevertheless declined to order restitution because, inter alia, it found that the magistrate court was not “the appropriate forum to determine restitution.” The trial court advised the victim to seek restitution in a civil suit so that the victim could conduct discovery and deal with “big figures.” The victim filed a petition for a writ of mandamus before the Fourth Circuit challenging the denial of restitution. On review, the Fourth Circuit first affirmed that the victim was entitled to petition the court of appeals for a writ of mandamus under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, as the statutory provision authorizes petitions from actions taken by magistrate judges in their role as “an arm of the district court.” The Fourth Circuit further found that the magistrate judge “failed to articulate the balancing analysis” required by the CVRA. Specifically, the court was required to: “(1) make fact findings specific to two statutory factors—‘the need to provide restitution to a victim,’ and ‘the burden on the sentencing process posed by determining complex issues of facts’—and (2) then explicitly balance these two factors.” Because the court abused its discretion in failing to state why the burden of complexity or delay in sentencing outweighed the victim’s need for restitution, the case was remanded with instructions to the magistrate judge to “conduct and explain on the record its balancing analysis in determining whether to award restitution.” To aid the magistrate court on remand, the Fourth Circuit further clarified that case law discussing the difficulty of calculating restitution for future lost earnings would have limited applicability in the context of past lost earnings. Similarly, the Fourth Circuit instructed that that the “availability of civil remedies” should not be a controlling factor in its determination and that any consideration of medical expenses not sought by the victim in restitution would be irrelevant to the determination of restitution for the past lost earnings actually sought by the victim.

  • State v. Curtis, No. 2 CA-CR 2018-0266, 2019 WL 6336523 (Ariz. Ct. App. Nov. 19, 2019)

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    Defendant was convicted of child molestation, and the court sentenced him to a 17-year term of incarceration. The court did not order restitution at the time of sentencing, instead retaining jurisdiction during the period of defendant’s incarceration at the state’s request, so that future counseling expenses could be ordered if the child-victim of defendant’s criminal conduct chose to seek additional counseling. Defendant appealed, arguing that the trial court lacked authority to order restitution for counseling expenses incurred after the date of sentencing and that the court erred in retaining jurisdiction over restitution for the entirety of his prison sentence. The court of appeals disagreed, noting that victims have a constitutional right to receive restitution from the convicted person who caused their losses, including future losses. The court of appeals further found that, to effectuate the purpose of Arizona’s restitution provisions of making victims whole, trial courts must be “permitted to exercise jurisdiction beyond sentencing to order restitution for a victim’s future economic loss not calculable at the time of sentencing.” Because child-victims often seek counseling years after the original offense, the court found no error in the trial court retaining jurisdiction over restitution for the duration of defendant’s 17-year sentence. The conviction and sentence was affirmed.

  • Crump v. Super. Ct. of L.A. Cty., 249 Cal. Rptr. 3d 611 (Cal. Ct. App. 2019)

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    Defendant—the Southern California Gas Company—pleaded no contest to one misdemeanor count of failure to immediately report the release of a hazardous material, in exchange for the dismissal of other counts relating to a months-long gas leak that caused damage to thousands of residents and businesses located near the site of the leak. More than 7,000 petitioners sought to set aside the plea agreement and obtain restitution as victims of defendant’s criminal conduct. The victims’ litigation with respect to their rights occurred before the trial court and before the Appellate Division of the Superior Court, and ultimately a petition for a writ of mandate was filed in the Court of Appeals. The Court of Appeals analyzed the victims’ rights and concluded, inter alia, that victims may not seek enforcement of their right to restitution by direct appeal from a criminal judgment or order but may, “in those rare instances where the trial court fails in its duty to order restitution from the convicted wrongdoer to the victims of the crime,” instead “do what petitioners have done in this case: seek a writ of mandate.” The Court of Appeals affirmed the lower court’s determination that restitution was limited to losses that resulted from the three-day delay in reporting the leak and, despite agreeing that the evidence presented at the sentencing hearing was insufficient to demonstrate damages resulting from the delay itself, nevertheless ordered a re-hearing on restitution so the victims could provide information relating to any losses arising from the delayed reporting, as the scope of the previous hearing and the legal parameters of the previous proceeding relating to restitution had been unclear. The case was remanded with instructions to conduct a further hearing “to determine what, if any, damages were caused only by the three-day delay in reporting the leak to the proper authorities … .”

  • United States v. Ebbers, No. (S4) 02-CR-1144-3 (VEC), 2020 WL 91399 (S.D.N.Y. Jan. 8, 2020)

    Defendant, former CEO of WorldCom, Inc., was convicted of multiple counts of securities fraud and conspiracy to deceive the investing public and the SEC concerning WorldCom’s true operating performance and financial results. Because of his crimes, WorldCom employees lost their jobs and savings, and investors and shareholders lost hundreds of millions—estimated at perhaps even billions—of dollars. After serving 13 years out of his 25-year sentence, defendant moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018. The court explained that this provision empowers a court to reduce a defendant’s term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction.” The court began by noting that before ruling on defendant’s motion, it sua sponte ordered the government to provide the victims with notice of the proceedings so that they could be heard. The court explained that it did so despite the fact that it interpreted the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, to mandate “victim notification of compassionate release proceedings [only in cases where] the proceedings will include a public hearing in open court” and it intended to rule on the papers without a public hearing. The court provided two reasons for its decision to notify victims even in the absence of a public hearing: First, “[s]entencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence.” Second, “the broad rights-based language of the CVRA counsels in favor of giving victims notice and an opportunity to be heard, regardless of whether there will be a hearing in open court[,]” as “[m]ost of the rights conferred by the Act are aimed at ensuring that victims have dignity and ‘voice’ in criminal proceedings, and do not provide specific procedures for their implementation.” The court further concluded that “[f]or the same reason that it is appropriate to hear from victims who wish to be heard before a judge initially imposes sentence, it is equally appropriate to give victims an opportunity to be heard again before the sentence that was initially imposed is modified.” The court noted that it received numerous letters from victims describing the impacts of defendant’s crimes; some “urg[ing] this Court to keep Ebbers in prison until he dies; others plead[ing] for compassion for him and his family.” In deciding defendant’s motion, the court considered the victims’ input, along with a number of factors, including the length of the prison term defendant had served, as well as evidence showing, among other things, that defendant “is sick, weak, disoriented, and bedridden” and that he can no longer care for himself, his cognitive functions are impaired, and his body is wasting away. For these reasons, the court concluded that defendant had met his burden of showing “extraordinary and compelling reasons” warranting the reduction of sentence and granted his motion for compassionate release.