A new item has been added to the criminal defense practitioner’s “must-advise” checklist: restitution never comes off the table, no matter what the plea agreement says. Here, the Defendant, (and presumably his attorney, understandably so,) assumed that he was pleading guilty to aggravated assault in exchange for eighteen to twenty-seven months in a furlough program. The plea agreement was silent as to restitution. Nonetheless, the Defendant is now on the hook for the additional $18,673 necessary to pay the medical expenses of the alleged victim, or at least he will be, pending remand.
The whole mess began when Defendant got into a serious tussle at a party. After finding his ex-girlfriend in a bedroom with another man, Defendant and some friends busted in and started punching the would-be Romeo in the face and head. Eventually, the fight ended up outside, and the Defendant punched and choked the victim until he passed out. The victim spent four or five days at Dartmouth Hitchcock.
Defendant went through the standard steps in the prosecution of a dunker crime: Charge; Plea deal; Change-of-plea hearing; and Sentencing deferred to ensure the Defendant was eligible for the furlough program. Here, however, the case becomes more interesting. At the sentencing hearing, the State requested restitution. [Insert crickets in the courtroom]. A scramble ensued. At the restitution hearing, the State requested $10,000 for the victim’s compensation fund, (in order to recover the amount the Fund had paid out for the victim’s
bills,) and an additional $8763 directly to DHMC to reimburse the institution for the remainder. Despite arguing that the restitution was not part of the deal, disputing the amount actually attributable to him—hey, it was self-defense!—and claiming an inability to pay, the trial court refused to set aside the guilty plea and ordered restitution in the full amount. According to the trial court, the Defendant knew that the State planned to ask for restitution, and the Defendant has already agreed to cooperate with the restitution unit as part of the furlough program. Dartmouth
Fundamentally, says SCOV, restitution is a victim’s right, and the State cannot bargain it away in order to reach a plea deal. Therefore, the court is required to consider restitution IN EVERY CASE (unless the charge involving the victim is dropped). Failure to allow the Defendant to withdraw his plea did not constitute plain error, because the additional restitution did not change the terms of the agreement. This differs from the case in which the deal is no jail time if restitution is paid in full—in that instance, imposing a sentence after restitution is paid does constitute plain error.
A few more minor points. Just because aggravated assault is defined as “attempt to cause serious bodily injury,” does not mean that an aggravated assault cannot be a completed crime for which restitution might follow. The Defendant attempted to argue that one cannot be liable for causing injury when one has only attempted to do so according to the charge. But, as SCOV more delicately points out, there’s no doubt that the Defendant made contact. The charge itself doesn’t control whether full restitution can be obtained to compensate for the actual injury incurred.
Finally, the trial court did not err in awarding $10,000 to the Victim’s Compensation Fund and directing payments to the restitution unit instead of the victim himself—there’s a statutory provision for that. However, the $8673 award to DHMC did not hold up, because the hospital did not directly suffer an injury. SCOV remanded in order to have this amount paid directly to the victim instead, which DHMC will just have to hope that it receives.