Stachowski v. State

BATTAGLIA, J. Kenneth Martin Stachowski, Jr., Petitioner, asks this Court to review the legality of an order of the Circuit Court for Somerset County requiring him to pay restitution under the Maryland Home Improvement Law 1 to three individuals who were victims in three separate criminal cases, as a condition of probation in a fourth, unrelated theft case, which is not before us. We conclude that the writ of certiorari should be dismissed. I. Introduction Between October 2003 and February 2004, Petitioner entered into separate written home improvement contracts with Darlene Wright, Ruth Daniels and Emma Daniels, but later refused to perform the requested work. The aggrieved individuals filed complaints with the Maryland Home Improvement Commission, and as a result, Stachowski was separately charged three times in the District Court of Maryland, sitting in Somerset County, with failing to perform home improvement contracts in violation of Section 8-605 of the Business ³ Regulation Article, Maryland Code (1992,1998 RepLVol.), 2 and with acting as a contractor without a license in violation of Section 8-601 of the Business Regulation Article, Maryland Code (1992,1998 RepLVol.). 3 In the Darlene Wright case (District Court Case 4G10084), Petitioner pled guilty to failing to perform a home improvement contract, the State nolle prossed the charge for acting as a contractor without a license, and Petitioner received a six months suspended sentence, a $1,000.00 suspended fine, three years supervised probation, and was ordered to pay restitution in the amount of $2,142.85, in $250.00 monthly installments.

In the Ruth Daniels case (District Court Case 2G10348), Stachowski pled guilty to failing to perform a home improvement contract, the State nolle prossed the charge for acting as a contractor without a license, and Stachowski received a six months suspended sentence, a $1,000.00 suspended fine, three years supervised probation, and was ordered to pay restitution of $8,997.00 in monthly payments of $250.00. In the Emma Daniels case (District Court Case 3G10349), Petitioner pled ⁴ guilty to acting as a contractor without a license, the State nolle prossed the charge for failing to a perform home improvement contract, and Petitioner received a thirty days suspended sentence, a $1,000.00 suspended fine, three years supervised probation, and was ordered to pay restitution of $4,140.00 in monthly increments of $250.00. The restitution orders were a condition of Stachowski’s probation in each case; in none of them did he make the required payments. Subsequently, Judge R. Patrick Hayman of the District Court found Petitioner in violation of probation in all three cases and sentenced Stachowski to six months incarceration in the Darlene Wright case, another six months in the Ruth Daniels case, and another thirty days in the Emma Daniels case, all sentences to be served consecutively.

Judge Hayman also separately imposed the $1,000.00 fine, heretofore suspended, in all three cases. Stachowski timely appealed the disposition of the three violation of probation cases to the Circuit Court. On October 11, 2006, Petitioner pled guilty in the Circuit Court in the three violation of probation cases, now numbered Cases 8150 (the Darlene Wright case), 8151 (the Ruth Daniels case) and 8152 (the Emma Daniels case), which were consolidated for the purposes of the hearing pursuant to a motion filed by the State. Stachowski also agreed to plead guilty in an unrelated, separate matter, Case 8089 that originated in the Circuit Court, in which he was charged with theft under $500.00 in violation of Section 7-104 of the Criminal Law Article.

Pursuant to the plea agreement, Stachowski admitted guilt in Case 8089, the unrelated, separate, theft case, and was sentenced to eighteen months, "with all but five months suspended, and five years probation. As part of Stachowski’s probation in Case- 8089, the Court ordered restitution to be paid to the victims in the home improvement contract cases. In the three violation of probation cases, the Circuit Court revoked Stachowski’s probation and imposed a six months sentence in Case 8150, another six months sentence in Case ⁵ 8151, and a thirty day sentence in Case 8152, all to be served consecutively. The following colloquy occurred: [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 fíne per case and ordered that the Defendant serve that off at ten dollars a day. Your Honor, that portion that we’re in agreement with is that the thousand dollar fíne 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 we have our numbers right. [THE STATE]: Your Honor, as well the Defendant has agreed to plead guilty in Case No. K-06-8089 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. [THE COURT]: Sixty days isn’t it? Did you say thirty or sixty? [THE STATE]: I believe it’s thirty days, your Honor. And that’s consecutive to— [COUNSEL FOR STACHOWSKI]: And that’s Case No. 8152. [THE STATE]: Consecutive to five months. In this case the suspended portion, your Honor, we would leave up to ⁶ 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 this Case No. 8089 a hundred and eighty-two dollars and fifty cents has been paid by cash to the victim. [THE COURT]: Okay. [THE STATE]: I just need a copy of that for the files. 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 that would be the nature of the nature of the plea agreement. [COUNSEL FOR STACHOWSKI]: I would like to add that the three hundred dollars a month starts at the end of the first full calendar month he’s out. [THE STATE]: Your Honor, that would be contingent on work release. [COUNSEL FOR STACHOWSKI]: Yeah, if he’s out on work release. [THE STATE]: Okay. I thought you meant out of jail. [COUNSEL FOR STACHOWSKI]: He’s out on work release. ⁷ [THE COURT]: Okay. [THE COURT]: All right.

In 8089 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. Give him credit for forty-five days time served. I’m doing it this way for ease of computation.

He’s placed on supervised probation for a period of five years. And I’ll come back to the probation in just a minute. In case ending 8150 I’m going to revoke his probation and impose a sentence of six months in the Somerset County Detention Center consecutive to the sentence imposed in 8089. The sentence in 8089 is consecutive to the last sentence to expire of all outstanding and unserved sentences.

So 8089 the one in which I just imposed eighteen months suspended all but five is consecutive to the last sentence to expire of all outstanding and unserved sentences. The six month sentence in 8150 is six months, I’ve revoked his probation, to the sentence imposed in 8089. In 8151 I’m going to revoke his probation and impose a sentence of six months in the Somerset County Detention Center consecutive to the sentence imposed in 8150 and the sentence imposed in 8089. In 8152 I’m going to revoke his probation and impose a sentence of thirty days in the Somerset County Detention Center consecutive to the sentence imposed in 8151, 8150 and 8089.

In all cases I’m going to waive fines, costs and fees given the amount of restitution that’s due. In 8150 the amount of restitution due is two thousand one-forty-two-eighty-five. The amount of restitution in 8151—that’s to Darlene Wright two thousand one-forty-two-eighty-five. Ruth Daniels is eight thousand nine hundred and ninety-seven dollars.

Restitution is ordered in both of those cases. Likewise in 8152 restitu ⁸ tion in the amount of four thousand one hundred and fifty dollars is owed to Emma Daniels. As a condition of his probation in 8089 he’s to make restitution to those three victims in the amount of three hundred dollars per month beginning thirty days from the last— [COUNSEL FOR STACHOWSKI]: The end of the first full calendar month. [THE COURT]: The end of the first calendar month. He’s allowed on work release.

Work release will be allowed subject to the resolution of the detainer in Delaware. What have I forgotten other than his post trial rights? [THE STATE]: Are you waiving the supervision fees as well? [THE COURT]: Yes. I always do. (emphasis added).

Petitioner filed Applications for Leave to Appeal in the three violation of probation cases and in the unrelated theft case in the Court of Special Appeals asking the intermediate appellate court to review the legality of the probation conditions imposed in the theft case, Case 8089, in which the judge ordered restitution to the three home improvement victims. Pursuant to Maryland Rule 8-132, 4 the Court of Special Appeals transferred the Applications for Leave to Appeal in the three violation of probation cases, Cases 8150, 8151 and 8152, to this Court, 5 after which Stachowski filed a Supple ⁹ ment to Petition for Writ of Certiorari, which we granted. Stachowski v. State, 400 Md. 647 , 929 A.2d 890 (2007). Stachowski posed the following