Appellant found guilty after failing to pay costs

Even though appellant complied with all conditions of the plea agreement except for the payment of court costs, the trial court did not abuse its discretion by adjudicating his guilt.

Overview

Under a plea agreement, Smallwood entered a guilty plea to possessing heroin. The court found there was sufficient evidence to support the plea but agreed to withholding a finding of guilt under Code § 18.2-251.

The court continued the case for one year. Smallwood was placed on supervised probation with the special condition that he pay $833, which was the cost of his prosecution. At the end of the one-year probation, the court reviewed the matter and determined the costs had not been paid.

The commonwealth supported the court’s continuance of the matter for another year to give Smallwood the opportunity to pay the costs. At the end of the additional year, Smallwood still had not paid. The court entered judgment on the conviction and imposed sentence.

Smallwood appeals.

Discretion not abused

“Smallwood does not dispute that he failed to pay the court costs as expressly ordered by the trial court. Rather, on appeal, Smallwood argues the trial court erred in convicting him ‘for failure of a condition not set forth in [Code §] 18.2-251’ and ‘when neither the plea agreement nor order of deferral rendered conviction a consequence of the failure to pay court costs but only made the successful payment of court costs condition precedent to dismissal.’ …

“Code § 18.2-251 gives a judge discretion to ‘place[] a defendant on probation subject to terms and conditions’ and to ‘enter an adjudication of guilt’ upon ‘violation of a term or condition.’ Thus, by the plain language of the statute, a judge may impose terms and conditions in addition to those set forth in Code § 18.2-251.

“The parties agree that Smallwood completed all the specific conditions enumerated in Code § 18.2-251. But Smallwood also agreed to other terms and conditions, which were enumerated in the plea agreement and ordered by the court. …

“Although the imposition of costs was not set forth in Code § 18.2-251, as Smallwood notes, it was a statutorily required condition imposed by Code § 19.2-303.4. That code section requires the trial court to impose costs when deferring adjudication of guilt pursuant to Code § 18.2-251.

“Therefore, Smallwood’s argument that the trial court erred in convicting him for failure of a condition not set forth in Code § 18.2-251 is without merit because it was a ‘term and condition’ authorized by Code § 18.2-251 and mandated by Code § 19.2-303.4.

“Nevertheless, Smallwood argues that his failure to pay the court costs could not result in conviction ‘when neither the plea agreement nor the order of deferral rendered conviction a consequence of the failure to pay court costs; but only made the successful payment of court costs a condition precedent to dismissal.’

“In other words, Smallwood argues that once the court deferred adjudication he could remain in a perpetual state of deferral while the costs were unpaid. Such an interpretation is absurd. …

“[A]s of November 13, 2017, Smallwood knew he had one year to complete the condition of court costs payment in order to avoid the consequence provided in Code § 18.2-251 – the adjudication of his guilt.

“Smallwood represented to the trial court that he understood the condition and had the ability to pay the full court costs by the November 2018 case review. On November 14, 2018, the trial court reviewed the case, found Smallwood had not paid the court costs, and adjudicated Smallwood’s guilt….

“The trial court did not err in exercising the discretion given by Code § 18.2-251.”

Affirmed.

Smallwood v. Commonwealth, Record No. 0844-19-4, May 12, 2020. CAV (Petty) from Warren County Cir. Ct. (Athey) D. Eric Wisely for appellant, Katherine Quinlan Adelfio for appellee. VLW 020-7-116, 7 pp. Unpublished.