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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 258 September Term, 2011

DAKOTA D. MCDANIEL v. STATE OF MARYLAND

Eyler, Deborah S., Kehoe, Raker, Irma S. (Retired, specially assigned), JJ.

Opinion by Raker, J.

Filed: June 7, 2012

Dakota D. McDaniel, appellant, was convicted in the Circuit Court for Washington County of assault in the second degree. He presents the following question on appeal: Whether the circuit court erred in ordering him to pay restitution to the victim. We shall hold that the court did not err in ordering payment of restitution and, accordingly, shall affirm.

I. Appellant was charged by criminal information in the Circuit Court for Washington County with first-degree assault, second-degree assault, reckless endangerment, wearing, carrying, and transporting a handgun, and using a handgun in the commission of a crime of violence. His case was tried to a jury, which found him guilty of second-degree assault and not guilty on the remaining charges. The court sentenced appellant to a term of incarceration of seven years, but credited appellant for 111 days already served and suspended the balance of the term. The court further sentenced appellant to five years of supervised probation and, as a condition of that probation, ordered him to pay $4,000 in restitution to the assault victim and $297 to the Criminal Injuries Compensation Board ("the Board"). The events leading to appellant's conviction occurred on the evening of July 14, 2010, within the Halfway Manor Apartments in Hagerstown, Maryland. The victim, Andrew Robinson, testified that he and some friends were standing outside the apartment of another friend when appellant approached him. The two, who had met once or twice before, exchanged a few words, whereupon appellant took a small handgun from his pocket and struck Robinson in the face with it. The blow knocked out one of Robinson's front teeth. Robinson stated that he attempted to leave, but appellant and another individual continued

the attack. Robinson's friends came to his aid, and the fight broke up when police arrived. The State presented testimony from two of Robinson's friends, who confirmed his account and added that appellant had dropped the handgun, and that it was picked up by his girlfriend. Appellant and two witnesses testified on his behalf. Appellant denied that he used or even owned a handgun and claimed that Robinson and his friends were the aggressors; appellant threw only one punch in self-defense. corroborated this version of events. Robinson testified that following the assault, he visited a dentist "to see what it would cost to get a new tooth put in," and a medical doctor for treatment of an infection in his mouth. The latter prescribed painkillers and an antibiotic. At the close of its case, the State offered into evidence medical and dental records supporting Robinson's testimony. The jury found appellant guilty of second-degree assault only, and the court proceeded immediately to sentencing. The State advised the circuit court that Robinson had submitted a claim of $297.49 to the Board, which the Board had paid to the Diagnostic Imaging Services and Medical Practice of Antietam. "But the other expenses," the State continued, "unfortunately are part of the dental work which are going to take, are started and are going to take another year to complete." The estimate statements for replacing Robinson's missing tooth, which both the State and the defense possessed, ranged "between four and five thousand dollars." Given that the cost of reparative treatment was only an estimate, the State expressed uncertainty as to the amount of restitution to request. In response, the circuit court said that it was "inclined 2 The defense witnesses

to set the restitution at four thousand dollars subject to you being able to . . . come in and contest that figure." With respect to possible incarceration, the State deferred to the court, but conveyed that "the victim's primary concern has always been restitution." Defense counsel requested a suspended sentence and said that appellant "has to realize if he doesn't make payments on restitution he could go to the Division of Corrections." Appellant advised the court that although he was not employed currently and had a few, unrelated criminal matters pending, he was looking for work and did not have any physical disabilities preventing him from obtaining employment. During the sentencing proceeding, the circuit court told appellant that it agreed with the State that the victim's main concern was restitution, "and that isn't going to happen if you are locked up." In addition to the suspended sentence, the court ordered probation, conditioned upon appellant's payment of $297 to the Board1 and $4,000 to Robinson, "at the rate of no less than one thousand dollars per year and further pursuant to a schedule to be adopted between [appellant] and [his] probation agent." Appellant made no objection to the restitution or the sentence. This timely appeal followed.

II. Before this Court, appellant argues that the circuit court's order of restitution to

1

Appellant does not challenge the order to reimburse the Board. 3

Robinson exceeded the court's authority and is an illegal sentence.2 Specifically, appellant contends that the statute governing restitution payments covers, inter alia, only actual dental expenses or losses, but at the time of sentencing no dental work had been done and, thus, there was no "actual loss to the victim." Estimates of treatment "not yet certain to occur in the future," appellant maintains, are not permitted under the law. Appellant further contends that the record from the sentencing proceeding "suggests" that he does not have the ability to pay the ordered restitution. The State argues that the plain language of the restitution statute authorized the circuit court to order restitution for dental work that had not yet been done and was based upon estimates for future dental treatment. With respect to an inability to pay the amount of restitution, the State contends that appellant affirmatively waived such an argument by assuring the court that he could work and by not raising lack of ability to pay at the sentencing and restitution hearing. On the merits, the State maintains that nothing in the record supports appellant's contention that he is unable to pay restitution.

III. In Downes v. Downes, 388 Md. 561, 571 (2005), Judge Wilner, writing for the Court of Appeals, expressed concisely an appellate court's task when interpreting a statute:

An order to pay restitution as a probation condition is part of a criminal sentence. If such a condition exceeds the authority of the court, it is an illegal sentence, and a challenge to it can be raised initially at any time, including on appeal. See Carter v. State, 193 Md. App. 193, 209 (2010). 4

2

"We have stated the controlling principles of statutory construction so often that only the briefest exposition is necessary. Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself. If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written and in a commonsense manner. We do not add words or ignore those that are there. If there is any ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created." Maryland Code (2001, 2008 Repl. Vol.),

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