Submitted: August 27, 2013
Upon Consideration of The State of Delaware's Request for Restitution for VCAP
Nicole S. Hartman, Esq., Deputy Attorney General, Department of Justice, Dover, Delaware for the State of Delaware.
Robert A. Harpster, Esq., Office of the Public Defender, Dover, Delaware for Defendant. Young, J.
Robert B. Young J.
Upon Motion of Defendant, this matter came before the Court for hearing regarding the restitution Order of this Court at sentencing. Because the restitution beneficiary was the Victim's Compensation Fund ("VCAP"), which compensated the victim, but which was not a victim; and because no part of the original sentence included any compensating fine; no vehicle for collection through sentencing exists. Accordingly, the claim to have a final dollar amount restitution order is DENIED.
Defendant herein, George Schafferman, was convicted of the crime of offensive touching, as well as marijuana possession. In the course of this crime, Defendant struck with his fists two individuals: Mr. Frisbie and Mr. Paquette. As a result of that striking, Mr. Paquette sustained injury causing him to miss work resulting in a loss of $193.53, which was duly paid to him by the Victim's Compensation Fund.
Following that resolution, the State requested an Order for Restitution in favor of the VCAP. That request was essentially pursuant to the plea agreement executed by Mr. Schafferman. Actually, the determination of the amount claimed was made some 73 days post plea entry. The Order relative to that by the Court indicated a 60 day period for amount determination. Defendant Schafferman raises that timeliness issue as a bar to the claim. The Court finds utterly no prejudice to Defendant because of that two week "delay." Rather, that timing was merely a framework to prevent undue delay on the part of the State, which was not demonstrated here. So, on that basis, Defendant's position is not sustained.
The significant issue is whether or not a restitution claim can be made on the part of VCAP.
Restitution is provided for by 11 Del. Code § 4106. It appears to have some specific eligibility limitations. However, given the issues in this case only one is of consequence. That one is the requirement that Restitution be provided for "victims." Redick v. State, Del. Supr., 858 A.2d 947 (2004), states: "A victim is one who suffers injury or loss..." Further, the Court noted that "an order to pay restitution to a non-victim is...illegal."
The State cannot dispute that VCAP is not "a victim." Rather, it is, in effect and for our purposes, an insurer or indemnitor for the victim. That same statute (§ 4106) does go on to say, at subsection c, that when an offender is ordered to make financial reparations, the payments "shall first be applied to" VCAP. That certainly suggests a Legislative desire to have an Order for a Defendant to repay loss to VCAP. If that is the case, an Order for such an obligation must come from someplace, based upon some authority. Both the State and the defense seem to suggest that 11 Del. Code § 9018 could be read to have provided a vehicle for reimbursement to VCAP. There they differ.
Defendant says: No, 9018 provides for fines, not restitution substitutes; and, further, even if it were a "fine" it would have had to have been made at sentencing. Defendant goes on to cite the 2013 Supreme Court case of Brock v. State, 61 A.3d 617. That case certainly does say: "The Superior Court has no authority to order restitution to anyone other than a victim." Additionally, that Court held: "The $25, 000 so-called 'fine' was, in substance, restitution under a different ...