Opinion
I.D. No. 9910006715
Date of Hearings: May 9, 2001, July 18, 2001
Date of Recommendation: July 19, 2001
COMMISSIONER'S RECOMMENDATION ON RESTITUTION
Now, this 19th day of July, 2001, the Court having held hearings regarding restitution in the above captioned matter, makes the following recommendation:
History
The defendant Kevin Parsons entered a plea of guilt before Judge Goldstein on April 25, 2000 to two charges: Offensive Touching and Sexual Harassment. The victim was a minor employed at a McDonald's restaurant, where the defendant also worked. Two charges, Rape 4th Degree and Unlawftil Imprisonment, were dismissed through a Nolle Prosequi.
Facts
At the hearings in May and July, the victim's mother, Yvonne Smith, testified in order to clarify the victim's loss information which she filed with the Office of Investigative Services (formerly the Presentence Office) and with the Attorney General's Office. Mrs. Smith testified concerning four main areas where she believed she, as the minor victim's parent, should be compensated: mileage reimbursement; lost wages while attending to this matter; reimbursement for time spent while on the telephone while dealing with this case; and counseling fees. Under cross-examination by Joseph Hurley, Esq., the defendant's attorney, Mrs. Smith admitted that many of her itemized expenses related not to the prosecution of the defendant's case, but to a civil case now pending against the McDonald's Corporation. Additionally, Mrs. Smith admitted that some of the itemized expenses related to claims with the Department of Labor while seeking workers' compensation for her daughter. Mrs. Smith also acknowledged that counseling fees on her expense report were paid by the Victims' Crime Compensation Board (VCCB).
Restitution:
The amount of restitution awarded to a victim may include compensation for out-of-pocket losses and other expenses directly resulting from the defendant's criminal acts. In determining whether defendant should be financially responsible for reimbursing the victim for losses sustained by her or her parents, the court must determine whether the losses to her were proximately caused by Parsons s criminal acts, and whether restitution is required to reimburse the Smiths for reasonable and necessary medical expenses or other expenses incurred as a result of the actions by Parsons.
Benton v. State, Del. Supr., 711 A.2d 792, 796-797 (1998).
See State v. Haefner, Del. CCP, C.A. No. 98-01-1788, 1789, James, J. (June 25, 1999), at 4. While not controlling in this case, the law delineated in this opinion offers a good framework for determining how to assess expenses toward a defendant's restitution obligation.
The Court sees this as a two part test. First, the court must decide if Mrs. Smith's expenses stem forth from the criminal acts of the Defendant. Secondly, if they are deemed proximately caused by his actions, then the Court must determine if it is reasonable to expect the Defendant to reimburse the victim for those expenses.
If not for the Defendant's criminal actions, Mrs. Smith would not be seeking legal assistance with her attorney against McDonald's or the workers' compensation claim. This would satisfy the first prong of the test. However, the second part of the test requires that the Court order the criminal defendant to pay for the pursuit of a claim against a third party. The Court deems it unreasonable to assess those costs to the Defendant. The victim and her family may seek such damages in their civil suit against a different defendant, but may not do so against Mr. Parsons.
Mileage Reimbursement
The victim's mother submitted a document at the May 9, 2001 Restitution Hearing which requested mileage reimbursement for 572 miles of traveling to various destinations which she claimed were caused by the defendant's criminal behavior. of those destinations listed on that document, only those to the investigator, the hospital and the preliminary hearing can be considered reasonably assessed to the defendant. Other destinations included a visit to the Smith's civil attorney, Christian Counseling (for which a VCCB reimbursement was already received), and the Delaware Division of Labor (for workers' compensation claims). Such visits, while related to the crime committed by the Defendant, are more appropriately sought from the civil actions' defendant, as they are more directly related to that claim.
Wage Reimbursement
Similarly, Mrs. Smith seeks reimbursement for time spent during these and other visits which required her, her husband, and the victim (who was no longer employed) to lose hourly wages.
Without question, any claim for the victim's wages is unreasonable. Kristen Smith was unemployed and in school. Any time she missed from school, while detrimental to her education and inconvenient, is not to be considered reimbursable as lost wages.
Because the parents of the victim were both subpoenaed for the Preliminary Hearing, a hearing which was outside their control as to time and place, it is reasonable to assess any hourly wages lost by Mr. and Mrs. Smith during the day of the hearing. Likewise, any trip made to the investigator handling this case for the Attorney General's Office, is recoverable. However, Mrs. Smith claims wage losses for trips made to her civil attorney's office, the Department of Labor and Christian Counseling. As with mileage reimbursement, it is unreasonable to expect the defendant to pay for trips made for the sole purpose of pursuing a separate civil claim against a different defendant. The Christian Counseling expense is also not recoverable, as it was already paid by the VCCB.
Telephone Time Reimbursement
It is not unreasonable for the victim to seek reimbursement for time spent on the telephone, calling various offices in relation to this case. According to the document submitted to the court, the victim's mother spent time on the telephone with the police, the investigator and the hospital. All of these are reasonably assessed to the Defendant. However, as with the other claimed losses, telephone calls made in pursuit of the civil lawsuit, the workers' compensation claim, and for the counseling sessions, are either already reimbursed by the VCCB payment or subject to any claim against McDonald's.
Recommendation
I, therefore, recommend to the sentencing judge, the Honorable Carl Goldstein, that the restitution awarded to the victim and her family should be in the amount of $ 419.14, which is broken down as follows:
Hourly wages for victim: Nothing Hourly wages for mother: $225.00 Hourly wages for father: $140.00 Mileage (52 miles @ .32/mile) $ 16.64 Telephone calls: 180 mins @ $12.50/hr) $37.50
Total: $419.14
Respectfully submitted, Commissioner Mark S. Vavala
Wages determined by Mrs. Smith at $12.50 per hour for herself and $17.50 per hour for her husband. The only visits considered as reimbursable were those to the investigator (6 hours for Mrs. Smith), and the preliminary hearing (6 hours for Mrs. Smith and 6 hours for Mr. Smith).
Mileage assessed as follows: 12 miles to the investigator, 20 miles to the hospital, and 10 miles to the preliminary hearing.
Includes only 4 calls to the police, 10 to the investigator and 4 to the hospital. As stated at the hearing, the victim's mother estimated that she spent ten minutes on the phone each time, which would result in 180 minutes for the 18 calls. This, calculated at the mother's hourly wage of $12.50 per hour results in the figure shown. The court considered the calls made to Joy Novak, a presentence officer with the Superior Court. Ordinarily, such calls might be considered reasonable to assess to the Defendant, but in light of the blurring of the lines between the civil and criminal cases, the court is unable to definitively determine for what purposes seven telephone calls might have been required. Accordingly, no assessment was made against the Defendant.
ORDER
This 27th day of July, 2001, it is the order of the court that the Commissioner's well-reasoned Recommendation setting restitution in the amount of $419.14 dated July 19, 2001, is hereby adopted in the above-referenced matter.