State v. Stachowski

Decision Date20 November 2014
Docket NumberNo. 15, Sept. Term 2014.,15, Sept. Term 2014.
Citation440 Md. 504,103 A.3d 618
PartiesSTATE of Maryland v. Kenneth Martin STACHOWSKI, Jr.
CourtCourt of Special Appeals of Maryland

Brian S. Kleinbord, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.

Celia Anderson Davis, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for respondent.

Victor D. Stone, Esq., Russell P. Butler, Esq., Counsel, Upper Marlboro, MD, for Amicus Curiae brief of Maryland Crime Victims' Resource Center, Inc.




We determine finally1 under what circumstances, if any, Maryland's trial courts may order restitution as a condition of probation in a criminal case for injuries to victims of other crimes committed by the defendant that have no direct relationship to the crime for which the defendant has been convicted and the restitution ordered. The Court of Special Appeals held that imposing restitution under the circumstances of the present case violated Maryland Code (2001, 2008 Repl. Vol.), Criminal Procedure Article, § 11–603 (CP). We shall reverse.

I. The Circumstances.

In 2003 and 2004, Kenneth Stachowski violated Maryland's home improvement regulations codified in Maryland Code (1992, 2010 Repl. Vol.), Business Regulation Article, § 8–101 et seq. (“BR”). Stachowski entered into three separate home improvement contracts with different Somerset County residents.

When he failed to perform the agreed upon work, the aggrieved parties filed complaints with the Maryland Home Improvement Commission. The result was that Stachowski was charged criminally in the District Court of Maryland, sitting in Somerset County, with failing to perform home improvement contracts (in violation of BR § 8–605 ) and acting as a contractor without a license (in violation of BR § 8–601 ). As there were three contracts, three separate criminal proceedings were docketed as the units of prosecution.

The charges were resolved through a plea agreement. Stachowski pleaded guilty to failing to perform a home improvement contract in two of the cases and acting as a contractor without a license in the third. The State nolle prossed the remaining charge in each case. The District Court imposed a suspended sentence of incarceration, a suspended fine, and supervised probation. As a condition of his probation, the District Court ordered Stachowski to pay restitution to each of the three victims. Stachowski was ordered to pay each victim $250 a month, until they were compensated for their respective losses of $2,142.85, $4,140, and $8,997.

When Stachowski failed to make his restitution payments, the State sought to revoke his probation. The District Court determined, after a hearing, that Stachowski violated his probation in each of the three cases. The Court ordered Stachowski to serve consecutively his suspended sentences of incarceration and pay a fine of $1,000 in each case, which would be “served off” at a rate of $10 per day of confinement. Stachowski appealed to the Circuit Court for Somerset County.

Meanwhile, in an unrelated case, Stachowski was charged with obtaining property or services by issuing a bad check, as well as theft. It was asserted that, in June 2005, Stachowski passed a check of $182.86, drawn on a closed account, to Somerset Well Drilling to obtain services from the company. The case was transferred by the District Court to the Circuit Court, upon Stachowski's request for a jury trial.2

On 11 October 2006, the bad check/theft case and the three probation violation home improvement cases were called for trial in the Circuit Court. At the beginning of the proceeding, the State informed the judge that the parties had reached plea agreements to resolve the four cases and announced the terms:

THE COURT: Is there anything I need to know about these cases before we proceed?
[THE STATE]: Your Honor, I believe we've worked out a plea agreement although I had not stated that on the record. My understanding of the plea agreement, Your Honor, three of these are an appeal for violation of probation from District Court. I think that we're in agreement and the State would consent to the fact that Judge Hayman had imposed all of the backup time for the cases. And in addition to that he had imposed a thousand dollar fine per case and ordered that the Defendant serve that off at ten dollars a day.
Your Honor, the portion that we're in agreement with is that the thousand dollar fine that he would serve off at ten dollars a day was an illegal sentence. My understanding as part of the plea agreement the Defendant will agree to serve the suspended portion of the sentence which was six months, six months and thirty days. If you need to know for each case it will take me a minute to find that out.
THE COURT: I'll look at it in a minute. Go ahead and finish up and we'll make sure the numbers are right.
[THE STATE]: Your Honor, as well the Defendant has agreed to plead guilty in [the bad check case] to the only count, single count of bad check. Your Honor, the State would recommend an active portion of five months incarceration which would be consecutive to the three other sentences as well. Those would be six months consecutive, consecutive to six months, consecutive to thirty days.

* * *

Consecutive to five months. In this case the suspended portion, Your Honor, we would leave up to you, but we would recommend some sort of a split sentence with an active period of incarceration.
As well, Your Honor, restitution has already been paid in this case. His wife provided documentation this morning—
THE COURT: So all restitution is paid?
[THE STATE]: In [the bad check case] a hundred and eighty-two dollars and fifty cents has been paid by cash to the victim.3
Your Honor, as well, the State is not opposed to work release for those active incarcerations as well as local time contingent on the fact that if he is granted work release that he would pay restitution to the victims in the violation of probation cases. Your Honor, he will agree to pay three hundred dollars a month that would be a hundred dollars per victim. Your Honor, that's not going to be enough to cover all of the restitution but at least they'll be able to recover some portion of it. And then either sue him civilly or you know—
THE COURT: Central Collection.
[THE STATE]: Central Collection or put a lien on his house or something of that nature.
And, Your Honor, I believe that would be the nature of the plea agreement.
[DEFENSE COUNSEL]: I would like to add that the three hundred dollars a month starts at the end of the first full calendar months he's out.
[STATE]: Your Honor, that would be contingent on work release.
[DEFENSE COUNSEL]: Yeah, if he is out on work release.

Stachowski pleaded guilty to the charge of passing a bad check to Somerset Well Drilling and the State nolle prossed the related theft charge. When the Circuit Court turned to the three violation of probation cases, Stachowski pled guilty again. The judge found expressly that Stachowski's guilty pleas were valid.

For passing the bad check, the Circuit Court sentenced Stachowski to eighteen months of incarceration, with all but five months suspended, and five years of probation contingent on Stachowski making restitution payments to the victims of the three home improvement cases. For violating his probation in the home improvement cases, Stachowski was sentenced to a total of one year and thirty days incarceration. The sentences were to be served consecutively at the Somerset County Detention Center, with the sentence for writing the bad check as the last to expire of all outstanding sentences.4 The Circuit Court approved work release, subject to Stachowski clearing up an outstanding detainer in Delaware. In short, the Circuit Court implemented the terms of the plea agreement. Neither Stachowski nor his attorney objected at the time to the requirement of restitution.5

In November 2006, Stachowski applied for leave to appeal the four cases to the Court of Special Appeals. The applications with regard to the three probation violation cases were transferred to this Court by order of the Court of Special Appeals. Stachowski's application for leave to appeal in the bad check case was denied by the Court of Special Appeals. He filed a motion for reconsideration with the intermediate appellate court, which motion remained pending for some time.

On 22 August 2007, we issued a writ of certiorari as to the home improvement cases to consider the same questions that are before this Court now. We dismissed, however, the writ. Stachowski v. State, 403 Md. 1, 939 A.2d 158 (2008) (Stachowski I ). We held that we could not consider the lawfulness of the Circuit Court's order for restitution to the home improvement victims because it was imposed as a condition of probation in the bad check case, not the violation of probation stemming from Stachowski's home improvement charges. Thus, the issue was not before us properly at that time in the context of the home improvement cases.

Stachowski supplemented subsequently his motion for reconsideration in the bad check case that remained pending before the Court of Special Appeals. The motion was granted on 28 May 2008. The intermediate appellate court directed the parties to brief whether the trial judge had authority to require restitution for the injuries arising from the unrelated home improvement cases as a condition for probation in the bad check case.

After Stachowski filed his initial brief with the Court of Special Appeals, this Court issued a writ of certiorari, on its initiative, to consider the question. We dismissed this writ for lack of jurisdiction as well because the intermediate appellate court had not ruled on the merits of the application. Stachowski v. State, 416 Md. 276, 6 A.3d 907 (2010) (Stachowski II ). On remand, the Court of Special Appeals decided Stachowski's appeal...

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  • State v. Stachowski, 15
    • United States
    • Maryland Court of Appeals
    • November 20, 2014
    ...440 Md. 504103 A.3d 618STATE of Marylandv.Kenneth Martin STACHOWSKI, Jr.No. 15, Sept. Term 2014.Court of Appeals of Maryland.Nov. 20, Reversed and remanded with directions. [103 A.3d 619] Brian S. Kleinbord, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on br......

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