Smallwood v. Commonwealth

300 Va. 426

867 S.E.2d 297

Robert Lee SMALLWOOD

v.COMMONWEALTH of Virginia

Record No. 200803

Supreme Court of Virginia.

JANUARY 13, 2022

D. Eric Wiseley (Struckmann, White & Wiseley, on briefs), for appellant.

Brittany Marie Jones, Deputy Solicitor General (Mark R. Herring, Attorney General; Michelle S. Kallen, Acting Solicitor General; K. Scott Miles, Deputy Attorney General; Jessica Merry Samuels, Deputy Solicitor General; Katherine Quinlan Adelfio, Assistant Attorney General; Kendall T. Burchard, John Marshall Fellow, on brief), for appellee.

PRESENT: All the Justices¹

OPINION BY JUSTICE CLEO E. POWELL

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 Virginia Code § 18.2-251 (First Offender) upon all of the usual terms and conditions of probation and upon the additional terms and conditions as imposed in open Court and as reflected in the transcript of these proceedings." The Deferral Order also stated, "[a]s special conditions of his suspended sentence, the defendant shall ... Pay the costs on a schedule to be determined by the probation officer" and further provided that the matter was continued for a year, to May 30, 2017, for review. The Deferral Order was endorsed by the Commonwealth, but not by Smallwood.

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 Code § 18.2-251. In a subsequent hearing, Smallwood argued he could not be convicted due to his failure to pay costs because he was indigent. At the same time, however, he acknowledged that he had not raised that issue when he entered into the Plea Agreement. After considering the matter, the circuit court upheld its previous ruling and found Smallwood guilty. The circuit court then sentenced Smallwood to two years’ imprisonment, all suspended.

Smallwood appealed the matter to the Court of Appeals. The Court of Appeals ruled that, because Code § 18.2-251 gives a judge discretion to place a defendant on probation subject to terms and conditions, a judge may impose terms and conditions in addition to those set forth in the statute. The Court of Appeals concluded that the payment of court costs was a term or condition authorized by Code § 18.2-251 and, therefore, the circuit court had not erred. The Court of Appeals also noted that the alternative, i.e., that Smallwood could remain in a perpetual state of deferral for as long as the cost were unpaid, was absurd. With regard to Smallwood's constitutional argument, the Court of Appeals pointed out that he was not convicted for his inability to pay court costs, he was convicted for his possession of heroin.

Smallwood appeals.

II. ANALYSIS

On appeal, Smallwood initially argues that revoking his deferred disposition and convicting him of possession of heroin due to his failure to pay court costs violated due process, equal protection and fundamental fairness under the Fourteenth Amendment. In raising this argument, Smallwood relies on the United States Supreme Court's decision in Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). According to Smallwood, Bearden holds that, prior to convicting him, the circuit court was required to find that there was no legitimate reason for his failure to pay costs. He insists that, absent such a finding, the circuit court was required to simply continue his deferred disposition.

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.

461 U.S. at 672-73, 103 S.Ct. 2064.

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, 103 S.Ct. 2064. 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...