WYATT v. STATE, 498 A.2d 1088 (Del. 1985)

Supreme Court of Delaware.Submitted: August 7, 1985.
Decided: September 11, 1985.

Upon appeal from Superior Court. AFFIRMED.

Thomas F. Luce, Wilmington, for appellants.

Richard E. Fairbanks, Deputy Atty. Gen., Wilmington, for appellee.

Before McNEILLY, HORSEY, and CHRISTIE, JJ.

CHRISTIE, Justice.

In this criminal appeal, this Court is called upon to determine the scope of a sentencing judge’s authority to impose conditions of probation.

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Both appellants in this case were convicted in Superior Court of assault. The evidence indicated that in the course of the assaults, the victim was struck in the right eye and suffered a detached retina. At sentencing, defense counsel urged that the court order restitution so as to make “financial recompense for the injuries . . . suffered,” rather than imposing incarceration. The sentences imposed upon appellants included as a condition of probation that each appellant pay restitution based on the victim’s medical expenses[1] and pay additional sums for the victim’s “pain and suffering.”[2] The written orders confirming the oral sentences imposed in open court redesignated the purpose of the additional payments as being for “inconvenience caused by serious injury.”[3]

On appeal, appellants contend that the trial court had no authority to order payments for “pain and suffering” or for “inconvenience” arising from personal injuries. In their view, the only statutory authority to order restitution is found in 11 Del. C. § 4106(a)[4] (effective October 1, 1981) which deals with property damage. They argue that the trial court may order only such restitution as is specifically provided for in that limited, recent statute. The State, on the other hand, points out that under 11 Del. C. § 4204(c)(5)[5] the sentencing court has had and continues to have broad independent authority to place those being sentenced on probation.

The authority to impose probation carries with it the right to impose reasonable conditions of probation. 11 Del. C. § 4204 See also Basile v. United States, D.C.Ct. of App., 38 A.2d 620
(1944); Coles v. State, Md.Ct. of App., 290 Md. 296, 429 A.2d 1029 (1981); Commonwealth v. Walton, Pa.Supr., 483 Pa. 588, 397 A.2d 1179 (1979); State v. Anonymous, Conn.Super., 35 Conn. Sup. 675, 406 A.2d 869 (1979).

It is clear that the sentencing court had the authority to order restitution (and often did so) before 11 Del. C. § 4106 was enacted. It continues to have such authority. The purpose of 11 Del. C. § 4106 was to expand (and not to limit) the use of restitution in those cases where persons are convicted of “stealing, taking, receiving, converting, defacing, or destroying property.” It requires that the court order convicted persons to make restitution in

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such cases unless the trial court gives an explanation for not so ordering. The statute has broad provisions which give the court wide discretion within its limited scope. This special statute does not constitute a comprehensive codification of the trial court’s restitution authority.

In Delaware, the victim of a crime sometimes has a civil remedy against the perpetrator of the crime and the possibility of an award by the Victim’s Compensation Board, under 11 Del. C. ch. 90. However, these potential remedies in no way limit the conditions of probation which the sentencing court may impose. This is true where the sentences are imposed under 11 Del. C. § 4106 and also in cases where 11 Del. C. § 4106 does not apply. Compare State v. Fleming, N.H.Supr., 125 N.H. 238, 480 A.2d 107, 109 (1984).

In construing § 4106, this Court stated in Pratt v. State,
Del.Supr., 486 A.2d 1154 (1984) that the imposition of restitution “shall be governed by 11 Del. C. § 4106(a).” Id. at 1161. This means, of course, that the terms of restitution imposed under that statute must comply with that statute and the guidelines set down in that case. The decision in the Pratt case did not limit the trial court’s authority to require restitution in cases not covered by the statute.

Under the circumstances, we find no merit to appellants’ contentions. Section 4106 finds no direct application here. The court’s sentences were fully authorized by the broad sentencing authority granted in 11 Del. C. § 4204.[6] There can be no doubt that “inconveniences” were caused by the serious eye injury resulting from the assaults.

It is true that restitution as a condition of probation has usually been ordered for the purpose of reimbursing the victims of crime for property damages or for out-of-pocket expenses, including medical expenses. The difficulty in properly assessing “inconvenience” and “pain and suffering” in a criminal proceeding may have caused trial courts to conclude that compensation commissions or civil remedies are better forums for such claims. However, the trend in recent years has been to show more concern for the victims of crime and the sentencing court’s authority to order restitution has never been, and is not now, limited to out-of-pocket losses or to the types of losses the court is required to address under the provisions of 11 Del. C. § 4106.

We find the trial court had authority to impose the sentences it imposed. We also find the trial court did not abuse its discretion in imposing the type of restitution it included here as a condition of probation.

The judgment of Superior Court is AFFIRMED.