Smallwood v. CommonwealthSmallwood v. Commonwealth
FROM THE COURT
Robert Lee Smallwood (“Smallwood“) appeals the decision of the Court of Appeals affirming the revocation of his deferred disposition and conviction for possession of heroin due to his failure to pay court costs.
I. BACKGROUND
On January 1, 2015, Smallwood was arrested for possession of heroin. Smallwood was subsequently determined to be indigent and was thereupon appointed counsel. On May 31, 2016, Smallwood entered into a plea agreement (the “Plea Agreement“) with the Commonwealth wherein Smallwood would plead guilty to possession of heroin in contemplation of receiving “a statutory first-offender disposition pursuant to [Code § 18.2-251.]”2 The Plea Agreement further specified that Smallwood would be subject to certain terms and conditions. Specifically, Smallwood agreed to “pay all court costs and the costs of any programs as ordered by [his] probation officer.” The Plea Agreement went on to state that, upon fulfillment of the terms and conditions, the circuit court shall dismiss the charge against Smallwood.
At a hearing on that same day, the circuit court accepted Smallwood‘s guilty plea and found the facts sufficient for a finding of guilt. The circuit court deferred its finding for one year, subject to the terms and conditions listed in the plea agreement. Although the circuit court recited some of the terms and conditions in the Plea Agreement, it did not specifically mention the payment of court costs. Additionally, the circuit court entered an order titled “Terms and Conditions of Suspension of Sentence,” though no sentence, suspended or otherwise, had been imposed. The order specifically required that Smallwood pay “[t]he costs of prosecution.”
Smallwood was also required to sign a payment agreement plan (hereafter, “Form CC-1379“) wherein he agreed to pay his court costs by May 30, 2017. Form CC-1379 included a provision stating:
if the fines, costs, forfeitures, restitution, penalties, and/or interest are not paid in full by the date ordered, that the Court shall proceed according to the provisions of
Virginia Code § 19.2-358 , which state that a show cause summons or capias for my arrest may be issued.
On October 18, 2016, the circuit court memorialized its acceptance of the Plea Agreement in a written order (the “Deferral Order“). The Deferral Order noted that the circuit court had found the evidence sufficient for a finding of guilt but withheld formal adjudication of guilt and placed Smallwood on supervised probation for one year “in accordance with
Smallwood was released from incarceration in November 2016.3 At a May 30, 2017 hearing the parties agreed to delay review of the matter until November 13, 2017, to give Smallwood a full year to comply with the terms of the Deferral Order. In granting the extension, the circuit court asked Smallwood, “you do understand that whatever terms of the Plea Agreement you had you do need to complete them by that date, including the paying of costs,” to which Smallwood responded, “Yes, sir.” Smallwood went on to state, “Everything will be completed.”
At the November 13, 2017 hearing, the circuit court noted that Smallwood had fulfilled all of the terms and conditions of the Deferral Order except for the payment of court costs which now totaled $1,338.03. Smallwood again asked for more time in light of his substantial compliance with the Deferral Order. The circuit court inquired about Smallwood‘s income, to which he replied that he was making $590 per week. He also informed the circuit court that he owed $167 each week in child support payments, and he paid $500 per month in rent. The circuit court and the Commonwealth then agreed to an additional one-year continuance. The circuit court then admonished Smallwood, stating “Just so I that am clear[,] I expect it to be paid in full when we review it” in November 2018. The circuit court also informed Smallwood that he would need to be paying approximately $110 per month to satisfy his obligations.
At the November 14, 2018 hearing, the Commonwealth noted that Smallwood had not made any payments on his court costs. Smallwood confirmed that he had not made any payments, stating “I just haven‘t had the money yet.” The circuit court asked whether there was any reason not to find him guilty and sentence him today, and Smallwood responded he was unable to pay. After noting that payment of court costs was “part of the Plea Agreement,” the circuit court found that he “had not complied with the terms of the deferred disposition,” and adjudicated him guilty as charged.
In his written objections, Smallwood argued the special conditions the court imposed were conditions precedent to a suspended sentence, not to deferral or dismissal, and that violation of those conditions could not provide a basis for conviction. He contended that the conviction was ultra vires, in that it violated federal and state constitutional principles and
Smallwood appealed the matter to the Court of Appeals. The Court of Appeals ruled that, because
Smallwood appeals.
II. ANALYSIS
On appeal, Smallwood initially argues that revoking his deferred disposition and convicting
In Bearden, the United States Supreme Court held:
in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State‘s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
At its core, Bearden requires that the circuit court inquire into whether an individual has the ability to make the required payments. Id. at 672. If the court determines that the individual lacks the ability to pay, it must consider alternative measures of punishment. Id. However, if the court determines that the individual “willfully refused to pay or failed to make sufficient efforts legally to acquire the resources to pay, the court may revoke probation and sentence the [individual] to imprisonment within the authorized range of its sentencing authority.” Id.
The Commonwealth argues that Bearden is inapplicable in this case due to the fact that the parties entered into a plea agreement. In essence, the Commonwealth asserts that when Smallwood breached the Plea Agreement by failing to pay the court costs, he lost his contractual expectancy to the dismissal of the charge against him and, therefore, the trial court‘s decision to convict him was not a due process violation. Stated another way, the Commonwealth seeks to draw a distinction between a deferred disposition imposed by the trial court pursuant to a statute and a deferred disposition imposed pursuant to a plea agreement. According to the Commonwealth, Bearden would only apply to the former.
We need not address whether such a distinction exists at this time. Assuming without deciding that Bearden applies, we note that the record establishes that the circuit court made the requisite inquiry. During the November 13, 2017 hearing, the circuit court specifically requested information regarding Smallwood‘s ability to pay his court costs. Based on the financial information offered by Smallwood and Smallwood‘s affirmative representation that he could pay the costs with more time, the circuit court granted him an additional year in which to make the payments. This decision clearly represents an implicit finding that Smallwood had the ability to pay if given more time.
Having determined that he had the ability to pay, the question before the circuit court was whether Smallwood made “sufficient bona fide efforts legally to acquire the resources to pay.” Id. at 672. As the individual who would have all of the relevant information on this issue, the burden was on Smallwood to make the necessary showing. See id. at 673 n.12 (requiring courts to consider “whether the defendant has demonstrated sufficient efforts to comply with the terms of probation“). In Bearden, the petitioner presented evidence regarding his lack of income and assets and
Although Smallwood similarly claimed that he was not in a financial position to make any payments, he did not present any evidence in support of his claims, nor did he make any attempt to proffer such evidence. To the contrary, at the November 2018 hearing, Smallwood stated that he brought “all [his] pay stubs,” confirming that he was still employed, which, given his previous affirmative representation, supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs. Bearden expressly holds that, under these circumstances, a court is permitted to revoke an individual‘s probation and sentence them. Accordingly, Smallwood‘s reliance on Bearden is misplaced.
Smallwood next argues that the Court of Appeals erred because paying costs was not a valid “term or condition” under
“[W]e presume that [the General Assembly] chose with care the words it used when it enacted the statute we are construing.” Bonanno v. Quinn, 299 Va. 722, 730 (2021). Here, the operative language of
“Statutes that permit the trial court to impose alternatives to incarceration . . . are highly remedial and should be liberally construed to provide trial courts valuable tools for rehabilitation of criminals.” Peyton v. Commonwealth, 268 Va. 503, 508 (2004). As such, the use of these tools lies within the broad discretion of the circuit court. Id. Therefore, the decision to require that Smallwood pay his court costs as a term or condition of his deferred disposition falls squarely within the broad discretion granted to the circuit court by the General Assembly.
Smallwood further insists that, even if the payment of costs was a term or condition that could be imposed under
To decide this issue, we need only look to the plain language of
Moreover, Smallwood‘s contention that he was unaware that his failure to pay court costs would result in him being found guilty is belied by the Plea Agreement that he entered into and asked the circuit court to accept. The Plea Agreement specifically provided that, in exchange for his guilty plea, Smallwood‘s “finding of guilt and the disposition of the matter shall be deferred for one (1) year,” subject to certain terms and conditions. One of these conditions was the payment of “all court costs.” Thus, it is clear that Smallwood‘s obligation to pay court costs as an express condition of his deferred finding of guilt originated with his Plea Agreement.
Contrary to Smallwood‘s argument, the language of Form CC-1379 does not limit the circuit court‘s ability to convict him under
III. CONCLUSION
For the foregoing reasons, the Court of Appeals’ judgment upholding Smallwood‘s conviction will be affirmed.
Affirmed.