An assistant state attorney general drew skeptical looks from Court of Appeals judges Tuesday as he tried to explain why they should uphold nearly $17,000 in restitution a Baltimore County lawyer and his wife were ordered to pay as part of their sentencing on animal-cruelty charges.
Hilton and Donna Silver initially pleaded guilty to one count of animal cruelty in county district court in August 2009 for neglecting one of the family’s horses, which was so emaciated that county officials had it euthanized on the spot. Prosecutors, as part of the plea deal, agreed to drop charges related to the two surviving horses.
The district court judge in part sentenced the Silvers to pay the county nearly $10,000 to care for the two horses, which were sent to Days End Farm Horse Rescue in Woodbine. A circuit court judge increased that amount to $16,781 after the Silvers lost their appeal last April.
The Silvers, in separate court filings that used similar language, argued the restitution is related to the surviving horses not subject to their guilty plea. The judges pressed Ryan Dietrich on why prosecutors did not preserve the counts related to those horses for the circuit court.
“Why in God’s name did the state nolle prosse in the district court?” asked Judge Joseph F. Murphy Jr., using the Latin shorthand for dropping a criminal charge. “Why didn’t they re-charge?”
“I can’t answer that, your honor,” Dietrich responded.
“You wish they had,” Judge Mary Ellen Barbera said.
“I don’t think we’d maybe be here if they had,” Dietrich admitted.
Dietrich argued the guilty plea included facts related to all three horses and that restitution was part of a probation sentence that would otherwise have meant 90 days in jail.
“Maybe we should send this back for sentencing,” Murphy mused. “Maybe they’ll come up with the money if the threat is the jail sentence. Maybe this is, ‘Be careful what you wish for.’”
“I think that’s appropriate,” Dietrich said, “because the sentences were 90 days and they were suspended by an act of grace with those conditions.”
But Deborah S. Richardson, Donna Silver’s public defender, said her client never agreed to pay restitution as part of pleading guilty. She agreed prosecutors had to preserve the two counts for appeal or re-charge the couple in circuit court if it wanted to recover the money.
“There was a de novo appeal. The slate was wiped clean,” Richardson said.
Chief Judge Robert M. Bell agreed the Silvers had the right to appeal the district court ruling.
“She rejected the conditions, she rejected the whole plea,” he said. “The issue is … could the circuit court have done what it did?”
Kimberly A. Kline, Hilton Silver’s lawyer, adopted Richardson’s arguments on the restitution question. Kline additionally asked the court to overturn the 60-day jail sentence her client received in circuit court. Hilton Silver’s defense was he did not have charge or custody of the horses, a strategy Silver’s lawyer in circuit court said was “gutted” when prosecutors produced a contradictory police report allegedly for the first time when an officer was on the witness stand.
“As an attorney, you tell your client, ‘You’re not going to win against a police officer,’” said Kline, a Perry Hall solo practitioner who did not represent Silver at trial. “If they had this statement ahead of time, they would have withdrawn an appeal” of the district court decision.
Circuit Court Judge Thomas J. Bollinger Sr. gave Silver and his lawyer time to review the report at the trial table. Kline acknowledged they did not ask for more time or a break but said they were under pressure to review it quickly.
“There is a precept that anxiety is part of the process,” Judge Lynne A. Battaglia said. “I don’t see discovery as an alleviation of an attorney’s anxiety.”
Dietrich said any discovery error would have been “harmless” because of “overwhelming evidence” against Hilton Silver, including referring to the horses as “my horses” and asking if he can shoot the horse that would soon be euthanized.
The Court of Appeals did not indicate when it would rule in the cases, Donna Silver v. State of Maryland and Hilton Silver v. State of Maryland, Nos. 98 and 99, respectively, September Term 2010.