Walczak v. State

Decision Date01 September 1983
Docket NumberNo. 32,32
Citation302 Md. 422,488 A.2d 949
PartiesRichard Rondy WALCZAK v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Victoria S. Keating, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Alice G. Pinderhughes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued Before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, * RODOWSKY and COUCH, JJ.

ELDRIDGE, Judge.

This case presents two issues. The first is whether a defendant's failure to object to the imposition of an illegal condition of probation precludes his raising that issue on direct appeal. The second is whether a trial court may order a defendant to pay restitution to a victim of a crime of which the defendant was not convicted.

On June 15, 1981, petitioner Richard Rondy Walczak and three cohorts allegedly entered the residence of Esther Mary Gardner and Judith Lee Martin and there bound and robbed the two women at gunpoint. A Cecil County grand jury presented a fourteen count indictment charging Walczak with two counts of robbery with a dangerous weapon and related offenses. Seven counts of the indictment related solely to the alleged assault upon and robbery of Gardner and seven counts referred solely to the alleged assault upon and robbery of Martin. The robbery counts charged that Walczak stole "the property listed on the annexed sheet which is made a part hereof." The annexed sheet, under the heading "Property Stolen on 6/15/81 from Esther Mary Gardner," listed numerous items and their corresponding dollar values, which totaled $8,325.00. Beneath the heading "Property Stolen on 6/15/81 from Judith Lee Martin," was a second list of items, the total dollar value of which was set at $8,816.95.

Pursuant to an agreement between Walczak and the State, Walczak was tried on count one only, which charged the robbery of Gardner with a deadly weapon. Walczak pleaded not guilty, elected a nonjury trial, and was tried on an agreed statement of facts. He was found "guilty" on count one, and the State nol prossed counts two through fourteen. A presentence investigation was ordered, and sentencing was scheduled for about two months later.

Subsequently the circuit court sentenced Walczak to the maximum allowable term of twenty years' imprisonment for the armed robbery of Gardner. The court suspended the last five years of the sentence and placed Walczak on probation for five years. One of the conditions of probation was that Walczak make restitution of $8,325.00 to Gardner and $8,816.95 to Martin. Although Walczak expressed doubt as to whether he would be able to repay the entire debt in the five year probationary period, he did not otherwise object to paying restitution to both victims or to the amount ordered. Walczak signed an order of probation which required the restitution payments to both victims.

On appeal to the Court of Special Appeals, Walczak challenged for the first time the authority of the trial judge to order the payment of restitution to a victim of a crime of which he had not been convicted. The Court of Special Appeals declined to reach the issue, holding in an unreported opinion that "since the exception to the order of restitution was not made or ruled upon below, it is not preserved for appellate review," citing Maryland Rule 1085.

Walczak filed a petition for a writ of certiorari presenting the following question:

"Did the court below err in holding that petitioner had no right to relief from the trial court's order to him to pay restitution not authorized by statute?"

The State filed a conditional cross-petition for a writ of certiorari, arguing that the Court of Special Appeals was correct in holding that the restitution order was not preserved for appellate review and that, even assuming arguendo that the issue had been preserved, the restitution order was not illegal. We granted both the petition and the cross-petition.

(1)

Initially, we address the State's argument that the defendant's failure to object to the restitution order precluded review on direct appeal. The State relies upon the language of Rules 885 and 1085, which provide that this Court and the Court of Special Appeals "will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the circuit court ...." The defendant, however, relying on further language in Rules 885 and 1085, to the effect that "a question as to the jurisdiction of the circuit court may be raised and decided in [the Court of Special Appeals or Court of Appeals], whether or not raised and decided in the circuit court," argues that the restitution order was illegal and in excess of the circuit court's jurisdiction. 1

At times this Court has declined to review challenges to allegedly illegal sentences when the defendants failed to object to the sentences at the trial level. See, e.g., Putnam v. State, 234 Md. 537, 200 A.2d 59 (1964); Bennett v. State, 180 Md. 406, 412, 24 A.2d 786 (1942); Simonson v. State, 143 Md. 413, 417, 122 A. 362 (1923); Mitchell v. State, 82 Md. 527, 531, 34 A. 246 (1896). See also Carbaugh v. State, 294 Md. 323, 327 n. 3, 449 A.2d 1153 (1982). On the other hand, on numerous occasions, this Court and the Court of Special Appeals have reviewed the legality of sentences, including conditions of probation, in the absence of objections in the trial courts. See, e.g., Whack v. State, 288 Md. 137, 140, 416 A.2d 265 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981); Bird v. State, 231 Md. 432, 434, 190 A.2d 804 (1963); Kelly v. State, 151 Md. 87, 99-101, 133 A. 899 (1926); Klein v. State, 151 Md. 484, 494, 135 A. 591 (1926); Rose v. State, 37 Md.App. 388, 393-394, 377 A.2d 588, cert. denied, 281 Md. 743 (1977); Laurie v. State, 29 Md.App. 609, 349 A.2d 276 (1976); Haynes v. State, 26 Md.App. 43, 337 A.2d 130 (1975). Although this Court has sometimes labeled the imposition of an illegal sentence "jurisdictional," and thus reviewable on direct appeal regardless of any objection below, the Court has also strongly criticized the label. See Berman v. Warden, 232 Md. 642, 646, 193 A.2d 551 (1963), expressly overruling Price v. State, 159 Md. 491, 151 A. 409 (1930), and noting that the use of the doctrine of plain error or reliance on inherent power of an appellate court to correct error is preferable to calling the error jurisdictional.

Obviously the conflict among the appellate decisions in this State should be resolved. We hold that when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court. Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a), formerly Rule 774 a, provides that "[t]he court may correct an illegal sentence at any time." Thus, a defendant who fails to object to the imposition of an illegal sentence does not waive forever his right to challenge that sentence. See Coles v. State, 290 Md. 296, 303, 429 A.2d 1029 (1981). Moreover, because the defendant would be entitled to post conviction relief if a sentence is clearly illegal although not objected to at trial, interests of expedition and judicial economy support review of the sentence on direct appeal. See, e.g., State v. Evans, 278 Md. 197, 211, 362 A.2d 629 (1976); Walters v. State, 242 Md. 235, 238, 218 A.2d 678 (1966); Hickman v. State, 242 Md. 91, 94, 218 A.2d 21 (1966); Petrey v. State, 239 Md. 601, 603, 212 A.2d 277 (1965); Johnson v. State, 237 Md. 283, 293, 206 A.2d 138 (1965); Royal v. State, 236 Md. 443, 449-450, 204 A.2d 500 (1964).

(2)

The defendant contends that the statutes governing the imposition of restitution as a condition of probation do not authorize a trial court to order restitution to a victim of a crime of which he was not convicted. The State, on the other hand, argues that the statutes provide a trial court with broad authority to order restitution as a condition of probation.

The General Assembly has addressed the matter of restitution in criminal cases in several statutory sections. The pertinent provisions in this case are as follows. Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.), Art. 27, § 486, states:

"Every person convicted of the crime of robbery, or as accessory thereto before the fact, shall restore the thing robbed or taken to the owner, or shall pay to him the full value thereof ...."

Art. 27, § 488, relating to armed robbery, provides:

"Every person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof ...."

The subject of restitution is dealt with specifically in Art. 27, § 640(b):

"(b) Restitution may be ordered upon conviction of certain crimes; priority of payment.--Upon conviction for a crime where property of another has been stolen, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime, or where the victim suffered actual medical expenses, direct out of pocket losses, or loss of earning as a direct result of the crime, or if as a direct result of the crime, the victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental entity, the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime. Payment of restitution to the victim under this subsection has priority over payment of restitution to the Department or any other governmental entity." (Emphasis added.) 2

The general power of a court to set conditions on a grant of probation is contained in Art. 27, § 641A:

"(a) Suspension of sentence; probation.--Upon...

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