State of Maryland v. Kenneth Martin Stachowski, Jr., No. 15, September Term, 2014



C RIMINAL L AW – S ENTENCING – R ESTITUTION –

A trial court has the authority to order, as a condition of probation, a defendant to pay
restitution to a victim or victims of criminal activity unrelated to that crime for which the
defendant is convicted and probation is ordered, when the defendant agrees voluntarily
and expressly to pay the restitution as part of a valid plea agreement and the trial court
has a sufficient factual basis from which to determine the victim’s or victims’ injury and
the defendant’s responsibility for it.
Circuit Court for Somerset County
Case No. 19-K-06008089
Argued: 7 October 2014
                                     IN THE COURT OF APPEALS OF
                                             MARYLAND

                                                       No. 15

                                           September Term, 2014


                                         STATE OF MARYLAND

                                                         v.

                                    KENNETH MARTIN STACHOWSKI,
                                               JR.


                                          Barbera, C.J.,
                                          Harrell,
                                          Battaglia,
                                          Greene,
                                          Adkins,
                                          McDonald,
                                          Watts,

                                                 JJ.


                                            Opinion by Harrell, J.



                                    Filed: November 20, 2014
       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 (1957, 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 (1957, 2008 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.




1

 This is our third encounter with Stachowski and the questions presented here. In Stachowski
v. State, 403 Md. 1, 939 A.2d 158 (2008), and Stachowski v. State, 416 Md. 276, 6 A.3d 907
(2010), we failed to reach the merits of the questions because of procedural and jurisdictional
obstacles, respectively.
       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




2

While the case was pending, Stachowski’s spouse made full restitution to Somerset Well
Drilling.
                                              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.


                                            3
             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


3

 When providing the factual basis for the guilty plea, the State asserted that the bad check
passed by Stachowski to Somerset Well Drilling was for $182.86. The $0.36 difference
between the amount of the bad check and the restitution paid on Stachowski’s behalf appears
to have been treated as immaterial.
                                              4
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



4

 In addition to the sentences for writing the bad check and the home improvement violations,
Stachowski had outstanding sentences for unrelated theft and for driving with a suspended
license which were to run consecutively.
5

 Stachowski expressed some concern about his ability to pay restitution in light of his other
financial obligations, but agreed to the terms nonetheless.
                                             5
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 on the merits in Stachowski v. State, 213 Md. App. 1, 73 A.3d 290 (2013).



                                              6
       The Court of Special Appeals, interpreting the language of Maryland’s restitution

statute and relevant common law jurisprudence, held that the Circuit Court was without

authority to condition probation in the bad check case on the payment of restitution to the

victims in the home improvement cases because the latter were unrelated directly to the

former, either factually or legally. The Court of Special Appeals struck the restitution

requirement of Stachowski’s probation, but upheld otherwise the sentence.

       We issued a writ of certiorari to the Court of Special Appeals, at the behest of the

State, State v. Stachowski, 436 Md. 327, 81 A.3d 457 (2013), to consider the following

questions:


              1. Did the Court of Special Appeals err in holding that a court
              may not order restitution as part of a plea agreement on a
              charge as a condition of a probation in another matter before
              the court, creating uncertainty in conflict with this Court’s
              holdings in Walczak and Lee?

              2. Did the Court of Special Appeals err in vacating only the
              negotiated and accepted restitution condition required of
              Stachowski, which was part of the plea agreement, rather than
              rescinding the entire plea agreement, thus allowing
              Stachowski the full benefit of his bargain with the State
              without assuming any of his negotiated burden?



II.    Third Time a Charm.

A. Maryland’s Restitution Scheme.

       Restitution may be ordered as part of a sentence, according to CP §

11-603(a), or as condition of probation, according to CP § 2-221. Pete v.

State, 384 Md. 47, 55, 862 A.2d 419, 423 (2004). In both instances,


                                            7
restitution is a criminal sanction, not a civil remedy. Grey v. Allstate Ins.

Co., 363 Md. 445, 451, 769 A.2d 891, 895 (2001). Although restitution

serves to recompense the victim, it aims also to punish and rehabilitate the

criminal. Pete, 384 Md. at 55, 862 A.2d at 423.

       A trial court may order restitution, in the sound exercise of its

discretion, when, “as a direct result of the crime or delinquent act, property

of the victim was stolen, damaged, destroyed, converted, or unlawfully

obtained, or its value substantially decreased. . . .” CP § 11-603(a)(1)

(emphasis added).6 Medical and funeral expenses, direct out-of-pocket loss,

loss of earnings, and certain government expenses may provide the basis for

restitution. See CP § 11-603(a). The term “victim” is defined as “a person

who suffered death, personal injury, or property damage or loss as a direct

result of a crime or delinquent act; or, if the person is deceased, the personal

representative the estate of the person.” CP § 11-601(j).

       Determining whether an injury is a “direct result” of the criminal

conduct is central traditionally to mapping the outer limits of a trial court’s

discretion in ordering restitution in most cases. Our cases are clear that

restitution may be compelled only where the injury results from the actions

that made the defendant’s conduct criminal. See Goff v. State, 387 Md. 327,

6

 Whether restitution is ordered as condition of probation or as a sentence, the trial court’s
order must meet the “direct result” requirement of Maryland Code (1957, 2008 Repl. Vol.),
Criminal Procedure Article, § 11-603. Silver v. State, 420 Md. 415 n.16, 427, 23 A.3d 867,
874 (2011); see also Pete v. State, 384 Md. 47, 65-66, 862 A.2d 419, 429-30 (2004).
                                               8
344, 875 A.2d 132, 142 (2005) (finding that the defendant’s conduct was a

direct result of the injury for which restitution was ordered because the

property damage was caused “during and because of” the crime, without

any intervening cause); Pete, 384 Md. at 60-61, 862 A.2d at 426-27

(rejecting proximate causation, mere nexus, or single charging document

theories of defining the direct result of the crime and, instead, requiring “a

direct result between the qualifying crime committed and the damages

inflicted” in order for restitution to authorized). Further, as we announced in

Walczak v. State, restitution may be compelled ordinarily only for the

criminal conduct for which the defendant was convicted. 302 Md. 422, 429,

488 A.2d 949, 952 (1985).

       We acknowledged a narrow exception to these principles in Lee v.

State. 307 Md. 74, 512 A.2d 372 (1986).7 Lee was charged in the Circuit
7

The pertinent statute in effect when we decided Lee v. State was the same essentially as the
current statute:
               On conviction of a crime, the court may order the defendant to
               make restitution in addition to any other penalty for the
               commission of the crime, if:
               (i) Property of the victim was stolen, converted, unlawfully
               obtained, or its value substantially decreased as a direct result of
               the crime;
               (ii) The victim suffered actual medical expenses, direct out-
               of-pocket losses, or loss of earnings as a direct result of the
               crime;
               (iii) The victim incurred medical expenses that were paid for
               by the Department of Health and Mental Hygiene or any other
               governmental entity; or
               (iv) A governmental entity incurred expenses in the removal,
               towing, transporting, preserving, storage, sale, or destruction
               of an abandoned vehicle.
                                              9
Court for Montgomery County with forging a check and theft. Id., 307 Md.

at 76, 512 A.2d at 373. Pursuant to a plea agreement, he pleaded guilty to a

single count of forgery. The State nolle prossed the theft count. Id. As part

of the agreement, Lee admitted to the facts underlying the theft charge and

told the Circuit Court that he wanted to make restitution for the theft. Id.

The trial judge sentenced Lee for the forgery conviction to seven years of

incarceration, with all but six months suspended, upon the expiration of

which the defendant would be placed on probation for three years. Id. Lee

signed an order of probation in which he agreed to pay restitution in the

amount of the loss charged in the theft count. Id.

       Lee failed to pay the restitution as required. The State filed a petition

to revoke his probation. At the probation revocation hearing, Lee argued

that the court lacked authority to order restitution for theft because he had

not been convicted of that charge. The Circuit Court reviewed the terms of

the plea agreement, noting that Lee had agreed expressly to make restitution

to the victims of the nolle prossed theft charge, and revoked the probation.

Id., 307 Md. at 76-77, 512 A.2d at 373. The Court of Special Appeals

affirmed, in a reported opinion, the judgment of the Circuit Court. Lee v.

State, 65 Md. App. 149, 499 A.2d 969 (1985).

Maryland Code (1957, 1982 Rep. Vol., 1986 Cum. Supp.), Article 27, § 640(b)(1). The
statute authorized directing payment of restitution to the victims of crime, government entity
that suffered loss, and third party payors (including insurers). See Art. 27, § 640 (b)(2). The
prior iteration of Maryland’s restitution statute, the version at issue in Walczak v. State, was
also essentially the same. Lee v. State, 307 Md. 74, 78, 512 A.2d 372, 374 (1986).
                                              10
       On certiorari, we held that a trial court has the authority, under these

circumstances, to order restitution for charged crimes for which no

conviction ensued, if it is ordered as the result of a plea agreement as to the

crime for which a conviction was entered. See id., 307 Md. at 81, 512 A.2d

at 376. Like the Court of Special Appeals, we found that this exception was

contemplated by Walczak. Id. (citing Walczak, 302 Md. at 426 n.1, 488

A.2d 949).

       In Silver v. State, we clarified that, for the exception in Lee to apply,

the defendant must agree expressly to pay restitution as part of the plea

bargain.8 420 Md. 415, 432, 23 A.3d 867, 877 (2011). In Silver, the

defendants, a husband and wife, were each charged with three counts of

animal cruelty for neglecting three horses. Id., 420 Md. at 424, 23 A.3d at

874. Pursuant to a plea agreement, the defendants each pleaded guilty to

one charge of animal cruelty for their treatment of the euthanized horse.

The State nolle prossed the two remaining counts against each defendant

which charged them with mistreatment of the surviving horses. Id. After

hearing a stipulated statement of facts, the District Court judge sentenced

the defendants to six days imprisonment, to be served over three weekends,

and ordered restitution to the veterinarians who euthanized the one horse

and provided rehabilitation for the other two. Id., 420 Md. at 424-25, n.6, 23
8

Silver v. State was interpreting the current iteration of Maryland’s restitution statute. See 420
Md. 415, 427 n.15, 23 A.3d 867, 873 (2011).


                                               11
A.3d at 874. The Circuit Court, on appeal, also ordered restitution for the

care given the three horses. Id., 420 Md. at 426, 23 A.3d at 873.

       We vacated the judgment that ordered the defendants to pay

restitution for the rehabilitation of the surviving horses. Id., 420 Md. at 437,

23 A.3d at 880. The determinative factor in Silver was that, unlike in Lee,

the defendants had not agreed expressly to pay restitution for the fall-out of

the nolle prossed charges as part of the valid plea agreement.9 See id, 420

Md. at 432, 23 A.3d at 876-77.

B. The Circuit Court Was Authorized to Condition Stachowski’s Probation
   in the Bad Check Conviction on the Payment of Restitution to the
   Victims in the Home Improvement Cases.

       In the instant case, Stachowski agreed voluntarily and expressly to

pay restitution to the victims in his home improvement fraud cases as a

condition of probation entered on his bad check conviction.10 The
9

 A defendant need not agree expressly to pay restitution of a specified amount for a trial court
to order restitution for crimes other than the one or ones representing the conviction for
which probation is entered. In Lee, we found valid an order of restitution where the defendant
agreed “to make restitution in the full amount” for the nolle prossed charges as part of a plea
agreement. 307 Md. at 81, 512 A.2d at 376.
10

 Stachowski argues to us that he did not agree voluntarily to make restitution to the victims
of the home improvement cases because he was incarcerated at the time restitution was
ordered and was in a difficult financial situation. Although there was clear incentive for
Stachowski to accept a plea agreement—namely, to limit incarceration and provide support
for his family through work release—these pressures do not diminish the knowing and
voluntary nature of his plea. Stachowski indicated on the record that he understood the
nature of the charges and had discussed them with his attorney. Further, the trial judge
questioned Stachowski regarding his understanding of the ramifications of his plea. Such
circumstances, absent other indications negating voluntariness, are strong evidence that the
plea was knowing and voluntary. State v. Daughtry, 419 Md. 35, 75, 18 A.3d 60, 84 (2011).
                                              12
agreement was announced to the Circuit Court judge and acknowledged as

correct by Stachowski’s attorney. In exchange for the State (1) not

prosecuting the theft charge, (2) recommending a sentence of five months

incarceration for the bad check case, and (3) suggesting work release,

Stachowski agreed to plead guilty to the bad check charge and pay

restitution to the victims of his fraudulent home improvement scheme.

There were respective quid pro quos for what Stachowski and the State

agreed to (and the Court implemented) that fell squarely within the narrow

exception announced in Lee.

       The Court of Special Appeals, in reaching the opposite conclusion,

focused on dicta in Silver that it construed as suggesting that the Lee

exception applies only when the other charges or crimes for which

restitution is ordered are related to the crime for which the defendant was

convicted and probation entered. The relevant language of Silver states:

“[a]s Walzcak and Lee have long since established, the State may request, in

plea negotiations, that a criminal defendant agree to pay restitution for

related, though uncharged, crimes.” 420 Md. at 432, 23 A.3d at 876-77

(emphasis added). Although, as a matter of formal logic, this statement does

not frustrate the State from requesting restitution for unrelated crimes,

oftentimes, in typical usage, the express mention of one thing is the

exclusion of the other. Thus, the intermediate appellate court’s view is not

without basis.

                                             13
       We make clear here, therefore, that the Lee exception is not limited

only to related charges or crimes. Our analysis in Walzack and Lee did not

turn on whether the crimes were related and neither case mentioned

relatedness when discussing the authority of a trial judge to order restitution

for crimes for which the defendant was not convicted, but agreed

nonetheless to make restitution. The allowance of restitution for other

criminal conduct as the result of a plea bargain is just as rational for

unrelated crimes as related crimes, provided a defendant gives his or her

voluntary and express agreement to the restitution. As U.S. v. McLaughlin,

a case we relied upon in Lee, noted:

              First, plea-bargaining in situations involving multicount
              indictments would be severely restricted. If a defendant could
              not consent to make restitution for the actual loss caused by
              his or her conduct relating to the indictment, and have such be
              a condition of any probation he or she might receive, then the
              government would have little reason to dismiss indictment
              counts in order to limit a defendant's potential period of
              incarceration. More importantly, however, it would frustrate
              the rehabilitation goals of the probation system. . . . To permit
              a defendant who freely admits his or her guilt, and the amount
              of loss caused thereby, to avoid making the aggrieved party at
              least economically whole is intolerable from a societal
              perspective.

512 F. Supp. 907, 912 (D. Md. 1981) (quoted in Lee, 307 Md. at 80-81, 512 A.2d at 375).

Plea agreements are useful equally to realize the punitive, rehabilitative, and

compensatory goals of Maryland’s restitution statute in the context of unrelated crimes.

Enforcing the reasonable expectations of the parties to plea agreements benefits

defendants, the State, and victims. The Maryland General Assembly did not aim to limit

                                              14
the State’s use of plea agreements to resolve efficiently cases involving multiple,

unrelated charged crimes pursuant to CP § 11-603(a), or its statutory predecessor that was

at issue in Lee.

       Other jurisdictions with restitution regulatory regimes similar to Maryland’s do not

require the other criminal conduct, for which restitution is ordered, to be related to the

conviction associated with the probation in order for trial courts to impose restitution,

provided the defendant consents to it through a valid plea agreement. See, e.g., 18 U.S.C.

§ 3663 (authorizing in federal courts restitution to persons other than the victim of an

offense, if agreed to by the parties in a plea agreement); Ex parte Killough, 434 So. 2d

852, 853 (Ala. 1983); Kimbrell v. State, 666 P.2d 454, 455 (Alaska Ct. App. 1983);

People v. Quinonez, 735 P.2d 159, 164 (Colo. 1987); Barnes v. State, 489 So. 2d 1182,

1183 (Fla. Dist. Ct. App. 1986); State v. Dorsey, 889 P.2d 93, 96 (Idaho Ct. App. 1995)

(discussing an Idaho statute authorizing restitution for crimes not before the court, if with

consent of the parties); People v. McClard, 834 N.E.2d 984, 985 (Ill. App. Ct. 2005)

(discussing Illinois statute authorizing restitution for losses arising from dismissed

charges, if agreed to as part of a plea agreement); Kinkead v. State, 791 N.E.2d 243, 246

(Ind. Ct. App. 2003); State v. Hymer, 26 P.3d 63, 68 (Kan. 2001) (implying restitution

that was ordered in a case decided previously could have been imposed as a condition of

probation, if part of a plea agreement); Commonwealth v. Morseman, 379 S.W.3d 144,

152 (Ky. 2012) (considering Maryland’s restitution regime as persuasive authority in its

holding); State v. Stephenson, 706 So. 2d 604, 608-09 (La. Ct. App. 1998); State v.

LaCasce, 512 A.2d 312, 316 (Me. 1986); State v. Kennedy, 327 N.W.2d 3, 4-5 (Minn.

                                             15
1982); Sims v. State, 134 So. 3d 300, 303-04 (Miss. 2014); State v. Blanchard, 889 P.2d

1180, 1183 (Mont. 1995); State v. McMann, 541 N.W.2d 418, 422 (Neb. Ct. App. 1995)

(discussing the Nebraska statute authorizing restitution for uncharged crimes and crimes

dismissed, with the parties’ consent, pursuant to a plea agreement); Erickson v. State, 821

P.2d 1042, 1042-43 (Nev. 1991); State v. Steinolfson, 483 N.W.2d 182, 185 (N.D. 1992);

State v. Carson, 243 P.3d 73, 75 (Or. Ct. App. 2010); Martin v. State, 874 S.W.2d 674,

680 n. 16 (Tex. Crim. App. 1994); State v. Bickley, 60 P.3d 582, 584 (Utah Ct. App.

2002) (discussing Utah’s statute authorizing the trial court to order restitution for conduct

which the defendant agreed to make restitution as part of a plea agreement); State v.

Gorton, 90 A.3d 901, 905 (Vt. 2014) (discussing Vermont’s statute authorizing the trial

court to order restitution when the defendant, knowingly and voluntarily, accepts it as part

of a plea agreement); State v. Kinneman, 119 P.3d 350, 357 (Wash. 2005); Graham v.

State, 261 P.3d 239, 242 (Wyo. 2011).

       Our reference to “related cases” in Silver does not erode the plea agreement

exception described in Walzack and Lee, which mirrors, as noted above, the rule in many

of our sister states and the Federal courts. Rather, Silver recognized merely that, as was

the case in Lee, plea agreements including restitution for uncharged crimes or convictions

will often involve related charges.11

11

 Even in the context of a plea agreement, the amount of restitution the defendant agrees to
pay the victim of the uncharged crimes must be certain and there must be no factual dispute
that the defendant’s criminal conduct caused or was responsible for the aggrieved party’s
loss. See Lee, 307 Md. at 80, 82, 512 A.2d at 375, 376 (1986). In Stachowski’s case, the
previous convictions supplied the factual basis for the amount of restitution ordered and
Stachowski’s responsibility for it.
                                             16
C. We Decline to Abrogate Lee.

       In the end, Stachowski asks us to revisit Lee, pointing to alternative interpretations

of CP § 11-603(a) and invoking the noted ambiguous dicta from Silver. He points

particularly to the statutory requirement that restitution ordered be the “direct result” of

the crime. Before engaging Stachowski’s arguments, we pause to reflect on the

implications of the doctrine of stare decisis.

       The crux of the doctrine of stare decisis is that courts should reaffirm, follow, and

apply ordinarily the published decisional holdings of our appellate courts even though, if

afforded a blank slate, the court might decide the matter differently. Coleman v. Soccer

Ass'n of Columbia, 432 Md. 679, 689, 69 A.3d 1149, 1154-55 (2013). The doctrine of

stare decisis encourages the consistent development of legal principles, public reliance on

our judicial decisions, and the perceived integrity of the courts. Livesay v. Baltimore

Cnty., 384 Md. 1, 14, 862 A.2d 33, 40 (2004).

       Our devotion to stare decisis, however, is not absolute. We may decline to follow

the doctrine when persuaded the prior decision is clearly wrong, Townsend v. Bethlehem-

Fairfield Shipyard, 186 Md. 406, 417, 47 A.2d 365, 370 (1946), or when the precedent

has been rendered archaic and inapplicable to modern society through the passage of time

and evolving events, Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md. 442, 459-60,

456 A.2d 894, 903 (1983). Neither of these “outs” release us from honoring Lee in the

present case.

       As noted above, allowing a defendant to consent to pay restitution for his or her

other crimes in addition to the crime for which he or she stands convicted, as the result of

                                                 17
a plea agreement, is consistent with the goals and purposes of Maryland’s restitution

statute. The General Assembly contemplated restitution to serve compensatory,

rehabilitative, and punitive goals. Pete, 384 Md. at 55, 862 A.2d at 423. If courts could

not order a defendant who admits freely to wrongdoing and accepts the responsibility to

pay restitution as part of a plea agreement, prosecutors would have less incentive to

refrain from prosecuting to the fullest all charges and seeking the maximum allowable

sentence. Contrary to the goals of the statute, the reading of CP § 11-603(a) urged by

Stachowski would limit compensation of the victim and the commencement of the

voluntary rehabilitation of the defendant. There was, and remains, strong support for our

interpretation in Lee of Maryland’s restitution statute.

       The Lee approach is accepted widely, as noted supra at 14-16. Thus, Lee is not an

aberration or an outlier from a bygone era inapplicable to modern society12 : several states

and the Federal courts, as noted earlier, follow a similar rule.13 Further, the Maryland
12

 Indeed, this line of reasoning continues to gain new adherents. In 2012, the Supreme Court
of Kentucky considered for the first time whether a trial court could order restitution for
crimes for which the defendant had not been convicted if the defendant agreed to restitution
pursuant to a plea agreement. Commonwealth. v. Morseman, 379 S.W.3d 144 (Ky. 2012).
The Court noted that the Kentucky restitution statutes, strictly construed, would only allow
a court to order restitution for crimes for which the defendant had been convicted. Id. at 148-
49. After considering, however, the nature and aims of the statute and the interpretation of
similar statutes by the courts of other states, including Maryland, the Kentucky Court held
“that a trial court is authorized to order restitution for damages not suffered as a direct result
of the criminal act(s) for which the defendant has been convicted when, as part of a plea
agreement, the defendant freely and voluntarily agrees to the restitution condition.” Id. at
152.
13

The U.S. Supreme Court interpreted narrowly the federal statute authorizing restitution in
Hugey v. U. S., 495 U.S. 411 (1990). The Supreme Court held that the relevant federal statute
did not authorize the federal courts to order restitution for crimes for which the defendant had
                                               18
General Assembly, in the twenty-eight years since Lee, not only has failed to abrogate

Lee, but also has broadened the scope of restitution. See 2006 Md. Laws Ch. 428 (adding

to courts’ authority to order restitution the performance of services); 2006 Md. Laws Ch.

429 (broadening the class of persons and entities to which a court may order criminal

restitution paid).

       We stand by our decision in Lee.

III.   C ONCLUSION

   Under Walzack, Lee, and Silver, the Circuit Court for Somerset County had authority

to condition Stachowski’s probation on the bad check conviction on his payment of

restitution to the victims of his home improvement fraud. Stachowski agreed voluntarily

and expressly to pay restitution to the victims of his home improvement fraud in

exchange for the State’s agreement to: (1) refrain from prosecuting the theft count in the

bad check case; (2) recommend that Stachowski be allowed work release; and (3)

encourage the court to impose a sentence of incarceration less than the maximum

allowable. It was clear on this record that the ordered restitution was attributed properly

to Stachowski in the proper amount.

                                            JUDGMENT OF THE COURT OF
                                            SPECIAL APPEALS REVERSED. CASE
                                            REMANDED TO THE COURT OF
                                            SPECIAL APPEALS WITH DIRECTIONS

not been convicted, even if the defendant consented expressly to pay the restitution as part
of a plea agreement. Id. at 413, 422. That same year, however, Congress responded to Hugey
by passing the Crime Control Act of 1990, which broadened the class of “victims” under the
federal restitution statute and allowed courts to order restitution “‘to the extent agreed to by
the parties in a plea agreement.’” U.S. v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir.
1995) (quoting 18 U.S.C. § 3663(a)(3)).
                                              19
TO AFFIRM THE JUDGMENT OF THE
CIRCUIT COURT FOR S OMERSET C OUNTY.
COSTS IN THIS COURT AND IN THE
COURT OF SPECIAL APPEALS TO BE
PAID BY RESPONDENT.




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