KENNETH MARTIN STACHOWSKI, JR.
STATE OF MARYLAND
Krauser, C. J., Eyler, Deborah, S., Kehoe, JJ. [*]
Kenneth Martin Stachowski, Jr. appeals his conviction by the Circuit Court for Somerset County for violating Maryland's bad check law, Md. Code (2002, 2012 Repl. Vol., § 8-103 of the Criminal Law Article ("CL"), and raises one issue:
Where a conviction is entered by a guilty plea and the sentence is imposed and suspended in favor of a probation, may a trial judge, as one of the conditions of the probation, order that the defendant pay restitution arising from an unrelated case?
We answer this question in the negative and vacate the portion of the sentence requiring Stachowski to pay restitution.
Between 2003 and 2005, Stachowski committed a variety of criminal offenses in Somerset and Wicomico counties in Maryland as well as in Delaware. We are concerned with two strands of this larger web. The first involves Stachowski's violations of Maryland's Home Improvement Law, Md. Code (1992, 1998 Repl. Vol.), § 8-101 et seq. of the Business Regulations Article ("BR"); and the second relates to his passing a bad check.
In 2003 and 2004, Stachowski entered into separate written home improvement contracts with three Somerset County residents, Darlene Wright, Ruth Daniels, and Emma Daniels. He failed to perform the agreed-upon work and the aggrieved individuals filed complaints with the Maryland Home Improvement Commission. As a result, Stachowski was charged in three separate proceedings in the District Court of Maryland, sitting in Somerset County, with failing to perform home improvement contracts in violation of BR § 8-605,  and with acting as a contractor without a license in violation of BR § 8-601. All three of these cases were resolved on March 4, 2005 in the district court.
In the Darlene Wright case, Stachowski pleaded guilty to failing to perform a home improvement contract and the State nolle prossed the charge for acting as a contractor without a license. Stachowski received a six month suspended sentence, a $1, 000 suspended fine, three years supervised probation, and was ordered to pay restitution of $2, 142.85, in $250 monthly installments.
In the Ruth Daniels case, Stachowski pleaded guilty to failing to perform a home improvement contract and the State nolle prossed the charge for acting as a contractor without a license. He received a six month suspended sentence, a $1, 000 suspended fine, three years supervised probation, and was ordered to pay restitution of $8, 997 in monthly payments of $250.
In the Emma Daniels case, Stachowski pleaded guilty to acting as a contractor without a license and the State nolle prossed the charge for failing to perform a home improvement contract. Stachowski received a 30-day suspended sentence, a $1, 000 suspended fine, three years supervised probation, and was ordered to pay restitution of $4, 140 in monthly installments of $250.
Stachowski did not make the required restitution payments and, eventually, the State filed petitions to revoke his probations. After a hearing, the district court found Stachowski to be in violation of probation in all three cases and ordered Stachowski to serve the previously suspended sentences in each case and to pay fines of $1, 000 in each case, to be served off at a rate of $10 per day of confinement. The sentences were to run consecutively to one another. Stachowski timely appealed the disposition of the three violation of probation cases to the circuit court. We turn now to the second strand.
In June, 2005, Stachowski gave a bad check in the amount of $182.86 to a company known as Somerset Well Drilling. Stachowski was charged in the Somerset County district court with obtaining property or services by bad check in violation of CL § 8-103. Upon Stachowski's request for a jury trial, the case was transferred to the circuit court. Prior to the scheduled trial date in the circuit court, Stachowski's wife made full restitution to Somerset Well Drilling.
The two strands came together on October 11, 2006, when all four cases were called for trial in the circuit court. At the beginning of the proceeding, the State represented that the parties had reached an agreement as to the disposition of all four cases (emphasis added):
[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.
[W]e're in agreement 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 . . . .
* * * *
[T]he Defendant has agreed to plead guilty in [the Somerset Well Drilling case] to [a] . . . 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.
** * *
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—
** * *
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.
[THE STATE]: And, your Honor, I believe that that would be the nature of the plea agreement.
As part of this agreement, the State entered a nolle prosequi on the theft charge in the Somerset Well Drilling case, and Stachowski both waived a jury trial, and pleaded guilty to the bad check offense. After the prosecuting attorney recounted the factual basis for the guilty plea, the circuit court found Stachowski guilty of violating CL § 8-103.
As to his violation of probation appeals, Stachowski conceded that he had not made the required restitution payments but testified that he was struggling to support his family. The circuit court found by a preponderance of the evidence that Stachowski was in violation of his probation because he had failed to make the required $750 monthly restitution payments ordered by the district court.
The circuit court imposed sentences as follows:
THE COURT: All right. In [the Somerset Well case, ] the sentence of the Court is the Defendant shall serve eighteen months in the Somerset County Detention Center. The Court is going to suspend all but five months of that sentence . . . .
He's placed on supervised probation for a period of five years. And I'll come back to probation in just a minute.
* * * *
And the sentence in . . . [the Somerset Well case] is consecutive to the last sentence to expire of all outstanding and unserved sentences.
The court then proceeded to revoke the probations in the home improvement cases and to impose consecutive sentences of six months each for the Ruth Daniels and Darlene Wright cases and thirty days for the Emma Daniels case. The court also entered orders requiring Stachowski to pay $8, 152 in restitution to Ruth Daniels, $4, 150 to Emma Daniels, and $2, 142 to Darlene Wright. As a condition of probation in the Somerset Well case, the court ordered Stachowski "to make restitution to those three victims in the amount of three hundred dollars per month . . . ." Neither Stachowski nor his lawyer objected to the requirement to pay restitution.
On November 9, 2006, Stachowski filed an application with this Court for leave to appeal in all four cases. By an order dated December 14, 2006, we transferred the appeals in the three violation of probation cases to the Court of Appeals. On May 24, 2007, Stachowski filed a supplement to his application for leave to appeal with this Court, which was denied on May 29, 2007, in an unreported, per curium opinion. See Stachowski v. State, No. 2051, Sept. Term, 2006. On June 1, 2007, Stachowski filed a motion for reconsideration.
On August 22, 2007, the Court of Appeals issued a writ of certiorari to the Circuit Court for Somerset County in the appeals involving the three home improvement cases. Stachowski v. State, 400 Md. 647 (2007). The Court subsequently dismissed the writ, holding that it could not address the legality of the circuit court's order that Stachowski pay $300 per month in restitution for the three home improvement cases because the order was imposed in the "fourth, unrelated, theft case, " which ...