Lee v. State

BISHOP, Judge. Appellant Bernard Lee was charged in a two count indictment with forgery and theft. In accordance with a plea agreement, appellant pled guilty in the Circuit Court for ¹⁵¹ Montgomery County to the forgery count and the State nolle prossed the theft count. The trial court, based on the plea agreement, imposed a special condition of probation which required appellant to make restitution for the amount of money involved in the nolle prossed theft count.

The only issue is whether the trial judge erred in requiring appellant to make restitution for the amount of money involved in the nolle prossed theft count. FACTS Appellant was charged in the first count of the indictment with forging a check in the amount of $198.00 and in the second count with the theft of currency in the amount of $3,155.00. Before Judge Calvin R. Sanders, appellant pled guilty to the forgery count and the State nolle prossed the theft count. Judge Sanders sentenced appellant to a seven year term of incarceration but suspended all except six months and imposed a three year term of probation.

As a special condition of probation, the court directed that appellant make restitution in the amount of $3,155.00, the amount of the currency alleged to have been stolen in the nolle prossed second count. On August 30, 1982, Judge Sanders found appellant in violation of probation for failing to make timely restitution payments and ordered him to serve the suspended portion of the sentence. Following a hearing on appellant’s Motion to Reconsider, Judge Sanders ordered appellant’s release under the condition that he make the restitution payments. Because of appellant’s further failure to make timely payments, a second Petition to Revoke Probation was filed on April 24, 1984.

Appellant then filed a Motion to Correct Illegal Sentence. After a hearing, Judge Sanders denied the motion and subsequently found appellant to again be in violation of probation for having failed to make the restitution payments. Judge Sanders extended appellant’s probation for two years and continued the special condition that appellant make restitution. ¹⁵² DISCUSSION The restitution provision applicable to appellant’s sentencing on June 30, 1981 was Md.Ann.Code art. 27, § 640(b) (1976 Repl.Vol., 1980 Supp.) which provided: 1 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 earnings as a direct result of the crime, the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime. Appellant argues that the Court of Appeals decision in Walczak v. State, 302 Md. 422 , 488 A.2d 949 (1985) precludes the sentencing judge from imposing restitution pursuant to § 640(b) beyond crimes for which the appellant was convicted.

In Walczak the Court of Appeals agreed with this Court’s opinion in Mason v. State, 46 Md.App. 1 , 415 A.2d 315 (1980) that the statutory provisions limited restitution to crimes for which the defendant had been convicted. 302 Md. at 430-31 , 488 A.2d at 953-54 . See Mason, 46 Md.App. at 6 , 415 A.2d at 315 . Specifically, the Court of Appeals in Walczak found error in the trial court’s imposi ¹⁵³ tion of restitution for nolle prossed counts. 302 Md. at 430 , 488 A.2d at 953 . At first blush it does appear that the restitution imposed in this case for the nolle prossed count is precluded by Walczak .

The Court of Appeals, however, noted that federal cases had developed a narrow exception to the rule set out in Walczak. 302 Md. at 432 n. 3, 488 A.2d at 954 n. 3. In a series of cases federal courts have approved the imposition of restitution as a condition of probation beyond the counts for which a criminal defendant is convicted where such restitution is an express condition of a plea bargain, United States v. Suter, 755 F.2d 523, 526-27 (7th Cir.), cert. denied, — U.S.-, 105 S.Ct. 2331 , 85 L.Ed.2d 848 (1985) (agreed amount of restitution for mail fraud scheme in plea bargain exceeded monetary loss for actual conviction and indictment); Phillips v. United States, 679 F.2d 192, 194-96 (9th Cir. 1982) (defendant agreed to make restitution beyond amount involved in the conviction, in plea agreement which was explored at the guilty plea hearing and to which defendant subsequently agreed by stipulation); United States v. McLaughlin, 512 F.Supp. 907, 908-12 (D.Md.1981) (defendant agreed to make restitution for full amount charged in indictment as part of plea agreement, and affirmed the agreement at sentencing), 2 or where the defendant admits liability for specific amounts of restitution in some other manner. United States v. McMichael, 699 F.2d 193, 194-95 (4th Cir.1983) (defendant “freely admitted” total amount due beyond amount involved in conviction); United States v. Davies, 683 F.2d 1052, 1054-55 (7th Cir. 1982) (defendant “repeatedly acknowledged” the full monetary scope of criminal activity); United States v. Landay, 513 F.2d 306, 307-08 (5th Cir.1975) (defendant signed consent judgment in favor of victim of unconvicted counts and voluntarily admitted entire amount owed); United States v. ¹⁵⁴ Black, 589 F.Supp. 594, 597-99 (D. Oregon 1984) (stipulation as to total restitution owed). 3 Following the exception noted in Walczak as applied in the federal cases cited above, we expressly hold that where a defendant either in a plea agreement or by some other method acknowledges a specific obligation to make restitution beyond the amount involved in the crime of which he is convicted, the trial court may order restitution of that amount. This holding allows a criminal defendant to take responsibility for counts which would otherwise be lost in plea agreement haggling.

Further, to rule otherwise would perpetuate a situation referred to by Judge Miller in United States v. McLaughlin, 512 F.Supp. at 912 , where criminal defendants acknowledge their liability and state a desire to make restitution in plea negotiations in order to bargain away some counts, and then later attack the restitution for the unconvicted counts as being illegal sentences. Cf. Rojas v. State, 52 Md.App. 440, 443-47 , 450 A.2d 490, 493-94 (1982) (analogizing to contract principles in order to interpret fairly and enforce plea bargains). We must, therefore, decide whether the instant case falls within this exception.

At the May 18, 1981 plea hearing the State presented the following plea agreement to Judge Sanders: MS. WEBB [Assistant State’s Attorney]: Pursuant to discussions between Mr. Scheraga on behalf of his client Bernard Lee and Michael Mason on behalf of the State, it is my understanding that this morning Mr. Lee will enter a plea of guilty to Count One of the indictment, which charges the offense of Forgery. ¹⁵⁵ This is a violation of Article 27, Section 44 of the Annotated Code of