Opinion
ID No. 0704025538.
Submitted: December 7, 2007.
Decided: February 13, 2008.
Karin M. Volker, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kathleen M. Jennings, Esquire, Oberly, Jennings Rhodunda, P.A., Wilmington, Delaware, Attorney for Defendant.
RESTITUTION ORDER
On July 27, 2007, Kevin Hamilton pled guilty to Delivery of a Narcotic Schedule II Controlled Substance Causing Death. The Court sentenced Hamilton to 8 years incarceration (effective April 24, 2007), suspended after 5 years for 3 years of substance abuse treatment at Level 4, suspended after successful completion for the balance at Level 3 substance abuse treatment.
On August 21, 2007, the Violent Crimes Compensation Board ("VCCB") denied the request of the victim's family for restitution. The VCCB's denial was based on 11 Del. C. § 9006 (c) (7), which provides that compensation shall be denied where "the victim has sustained injuries during a drug-related crime in which the victim was an illegal participant."
The Court has broad discretion to determine whether restitution is appropriate, and to craft an award tailored to the circumstances of each individual case. Nevertheless, restitution is not intended as a substitute for a civil action. For example, restitution cannot include compensation for pain and suffering, or for discretionary expenditures by the victim or victim's family.
See 11 Del.C. § 4204.
The Compensation for Innocent Victims of Crime Act establishes general parameters for the Court's consideration.
9006. Denial of claim; reduction
(b) In determining whether or not to make an award under this chapter, or in determining the amount of any award, the Board may consider any circumstances it deems to be relevant, including the behavior of the victim which directly or indirectly contributed to injury or death, unless such injury or death resulted from the victim's lawful attempt to prevent the commission of a crime or to apprehend an offender.
(c) If the victim bears any share of responsibility that caused injury or death, the Board shall reduce the amount of compensation in accordance with its assessment of the degree of such responsibility attributable to the victim. A claim may be denied or reduced, if the victim of the personal injury in question, either through negligence or through wilful and unlawful conduct, substantially provoked or aggravated the incident giving rise to the injury.
The Court held a hearing, solely on the issue of restitution, on December 7, 2007. The total request to the VCCB was $56,720.61. The victim's family submitted documentation supporting the request.
Judge Jurden accepted the guilty plea and sentenced the defendant. Due to an emergency, Judge Johnston presided during the restitution hearing. However, Judges Jurden and Johnston have conferred and are in agreement as to this Order.
The original request was voluntarily reduced by the victim's family, in the amount of $244.70, following the hearing as a result of supplemental information.
Defendant does not dispute the accuracy of the amounts outlined. Defendant has conceded that he should pay some amount of restitution. However, defendant argues that any award of restitution must be reduced because of the victim's unlawful conduct. It is undisputed that the victim died as a result of knowingly obtaining and consuming an illegal controlled substance, although the victim was not aware that the illegal substance contained a fatal contaminant.
Defendant presently is incarcerated. Defendant owns certain stock, valued at $3,574.86 as of the date of the hearing.
The Court finds that the following expenditures were necessary, and directly related to and proximately caused by defendant. These amounts do not include those expenses which, while absolutely reasonable, are more appropriately recoverable through a civil action.
Funeral Expenses $ 15,156.55 Travel Expenses 1,863.86 Uninsured Hospital Bills 258.28 Register of Wills 245.00 TOTAL $ 17,523.69This amount shall be reduced by 15% because the victim was a participant in a drug-related crime.
THEREFORE, the Court hereby orders that defendant Kevin Hamilton shall pay restitution in the amount of $14,895.14 to the victim's family, T. Jefferson Shanks and Claire Shanks. Further, defendant's Exelon Corporation Drip Common Stock shall be sold forthwith and the proceeds immediately disbursed to the victim's family in partial payment of restitution.
SO ORDERED.