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Crime victims have 30 days to appeal for restitution, Md. court says

In a defeat for crime victims, Maryland’s top court has ruled they have 30 days after a final sentencing order to appeal for restitution and the clock does not restart when a victim requests that the trial judge reconsider the sentence and add the compensation.

In its 5-2 decision, the Court of Appeals said Maryland’s rules of criminal procedure clearly mandate that requests for review of final judgments, including sentences, must be made to the intermediate Court of Special Appeals within 30 days. That deadline is unaffected by Section 11-103 of the state Criminal Procedure Article, in which the General Assembly enabled crime victims to file motions requesting that the trial judge reconsider a sentence that does not include a restitution order, the high court said.

“Any right of a victim to file an application for leave to appeal must originate from the General Assembly, not form this court,” Judge Sally D. Adkins wrote in the court’s majority opinion filed Tuesday.

Judge Sally Adkins.

Judge Sally D. Adkins.

The court’s decision marked a defeat for Andrew Lindsey, who was shot and wounded in a busted drug deal. He sought $9,700 in restitution for injuries by filing a motion for reconsideration of a judge’s sentencing order, but fatefully did not file an appeal within 30 days, the high court held.

In a strong dissent, Judge Clayton Greene Jr. said the court’s decision runs afoul of Article 47 of the Maryland Constitution’s Declaration of Rights, which calls for crime victims to be “treated by agents of the state with dignity, respect and sensitivity during all phases of the criminal justice process.”

“Under the majority’s approach today, because respondent [Lindsey] filed a timely motion for reconsideration but failed to simultaneously apply for leave to appeal the court’s initial denial of restitution, respondent extinguished his right to appeal the judge’s error,” wrote Greene, who was joined in dissent by Judge Robert N. McDonald. “That proposition of law, which lies contrary to the language and purpose of the statute, the interests of judicial economy, and the broad language of the Maryland Constitution, I must reject.”

Greene added that, “although, as a participant in a drug deal gone awry, Lindsey is perhaps an unsympathetic victim, the majority’s ruling will impact all victims’ rights, including those to whom no fault can be attributed.”

‘Very disappointed’

Russell P. Butler, of Maryland Crime Victims’ Resource Center, said the group is “very disappointed” by the high court’s decision.

“We thought that the legislature had made it clear that victims can seek restitution,” said Butler, the center’s executive director.

“We agree with the dissent that this has the potential to hurt a lot of victims,” added Butler, who served as Lindsey’s appellate counsel. “We hope that the General Assembly will pass a legislative fix to what the majority thought was an error of the legislature. The victim has a right to restitution and the trial court should have ordered it.”

Russell P. Butler, Executive Director of the Maryland Crime Victims Resource Center Inc.

Russell P. Butler, executive director of the Maryland Crime Victims Resource Center Inc.

Lindsey was not a totally innocent party, according to the court’s opinion.

He was offering to sell Shyquille Griffin and Antonio Whitely marijuana from his car in May 2011 when Whitely objected to the small amount Lindsey was providing, pulled out a gun and shot him in the arm as he was driving away.

Griffin agreed to plead guilty to attempted robbery in return for testifying against Whitely, according to the court’s opinion. Griffin received a prison-sentence of 15 years, with all but 18 months suspended, and he was not ordered to pay restitution.

Griffin was formally sentenced in Prince George’s County Circuit Court Jan. 13, 2012.

Lindsey filed a motion for reconsideration of restitution within 30 days, which was denied on March 7, 2012. He then filed an appeal with the Court of Special Appeals on April 5, which was within 30 days of the denial, but well beyond 30 days of the formal sentencing.

The Court of Special Appeals accepted Lindsey’s belatedly filed appeal and remanded the case to circuit court, saying the sentencing judge should reconsider the request for restitution.

Griffin, who stood at risk of having to pay restitution, appealed to the high court, successfully arguing that Lindsey had waived his right to appeal by missing the 30-day deadline.

“In Maryland, a victim is not a party to a criminal prosecution,” Adkins wrote for the majority.

“Nevertheless, crime victims are vested with a number of specific, but narrow constitutional and statutory rights in criminal proceedings,” she added. “Holding that a victim could appeal not only from the denial of or failure to consider a right [to restitution], but also from a motion to reconsider the denial or failure to consider these rights, would considerably increase victims’ appellate rights. Such a construction is anything but narrow and must be rejected.”

View ‘out of step’

But Greene, in dissent, said the court’s restrictive view of the 30-day deadline is “out of step with the General Assembly’s trend in granting victims rights.”

Under the majority’s holding, “failing to simultaneously file a motion for reconsideration and apply for leave to appeal extinguished respondent’s right to appeal an erroneous decision, despite state constitutional provisions and statutes that suggest the General Assembly is committed at the very least to not erecting such barriers between crime victims and their rights,” Greene added. “While I agree that statutes granting the right to appeal must be construed narrowly, we are not bound to interpret the statute so narrowly that rights granted by the Maryland Constitution and the General Assembly are rendered toothless.”

Griffin’s appellate attorney, Rachel Simmonsen, declined to comment on the decision. Simmonsen is an assistant Maryland public defender.

Adkins was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Lynne A. Battaglia, Shirley M. Watts and Glenn T. Harrell Jr., a recently retired jurist who participated in the decision by special assignment.

The case is Shyquille Griffin v. Andrew Lindsey, No. 88, September Term 2014.