Bradford v. State , 206
| Decision Date | 01 June 2011 |
| Docket Number | Sept. Term,No. 206,2010.,206 |
| Parties | Joanie S. BRADFORDv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.Jonathan I. Pomerance (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.Panel: ZARNOCH, KEHOE, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.KEHOE, J.
In her appeal from an order of the Circuit Court for Washington County sentencing her to incarceration for civil contempt for failure to pay child support, Joanie Bradford takes aim at the “delayed sentencing agreement” (“DSA”) executed by her and the Child Support Unit of the Washington County Department of Social Services (the “Department”) at an earlier stage in the proceeding.1
As we will describe in greater detail, under the terms of the DSA, Ms. Bradford admitted that she was in contempt of court and agreed to serve a sixty day jail sentence to commence at a future date. The agreement provided for a monetary purge which, if timely paid before the sentence commenced, would have discharged the contempt. Ms. Bradford was not represented by counsel at the time she signed the agreement. The Department then submitted the DSA to the circuit court, which, without holding a hearing, entered an order holding her in contempt and imposing the sentence.
Appellant raises four issues which we have reordered, consolidated, and reworded as follows:
I. Did the circuit court err in entering the order holding appellant in contempt and imposing a jail sentence without first determining whether appellant's waiver of counsel was knowing and intelligent?
II. Was the parties' delayed sentencing agreement unenforceable as a matter of law?
III. Did the lower court err in sentencing Ms. Bradford to thirty days incarceration, subject to a $250 purge, absent a finding, or evidence to support a finding, that she had the present ability to pay that purge?
We conclude that the appeal is moot but that it is appropriate for us to consider appellant's arguments nonetheless. The circuit court erred in holding appellant in contempt and imposing a sentence of incarceration without first ascertaining that appellant had validly waived her right to counsel. In addition, the delayed sentencing agreement was unenforceable because it called for the imposition of an illegal sentence.
On September 26, 2006, Ms. Bradford was ordered to pay child support in the amount of $223.00 per month for two of her children, D.W. and C.W. Ms. Bradford was unable or unwilling to pay the required child support and was the subject of repeated enforcement proceedings. On June 2, 2009, the Department filed the petition for contempt that eventually gave rise to this appeal.
The petition alleged that Ms. Bradford was $2,870.59 in arrears as of May 26, 2009 and, among other relief, requested that the court “find Defendant in contempt[;] ... order the Defendant incarcerated for her willful contempt[»;] ... [and] impose sanctions as [sic] the Defendant to satisfy said obligation.”
The petition was served on Ms. Bradford, together with a writ of summons requiring her to appear at a “conciliation conference” with the Department. The summons stated that, if the case was not resolved “by entry of a Consent Order at the CONCILIATION CONFERENCE,” she was required to appear before the circuit court for a hearing on the Department's petition. The summons also stated in pertinent part:
You are entitled to be represented by an attorney at both the Conciliation Conference and before the Court. No attorney will be appointed to represent you. Failure to arrange for an attorney may be viewed as your waiver of the right to counsel. If you are charged as being in Contempt of Court, you may be incarcerated, fined or both if it is determined at a hearing that you are indeed in Contempt. The Office of the Public Defender can provide you representation only in cases where you are alleged to be in Contempt of Court and you are financially unable to afford the services of a private attorney. If you wish to employ the services of the public defender. ...
Ms. Bradford had her conciliation conference with the Department on July 24, 2009. During the conference, and without the assistance of counsel, she signed the DSA at issue in this appeal. This document consists of a preprinted form with 21 numbered paragraphs containing blank spaces that were filled in either by Ms. Bradford or a representative of the Department. At the end of each paragraph was a space for Ms. Bradford to write either “yes” or “no” in order to indicate her assent to statements contained in the paragraph.
[21 A.3d 128 , 199 Md.App. 183]
Under the terms of the DSA, Ms. Bradford: (i) admitted that she was in contempt of court for failure to pay child support; (ii) waived her right for a hearing before a judge or master; (iii) waived her right to “call and confront witnesses, raise defenses [she] may have or object to defects in the State's case”; (iii) acknowledged that she was entitled to be represented by an attorney and waived that right; and (iv) waived her right of appeal except to the “issues of jurisdiction and whether this agreement was voluntary.”
In addition, the DSA provided:
15. Other than the conditions listed in paragraph 20 below has anyone made any promises or inducement for you to admit you are in Contempt for failing to pay child support? No
16. Do you understand that if you fail to comply with each and every condition of the purge provisions in paragraph 20, the recommended sentence will be imposed? Yes
17. Do you understand that in order to fully comply with the Purge Provisions in paragraph 20 below, you must make regular payments effective 8/1/2009? Yes
18. Do you agree that the arrears under the prior order now stands at $3, 316.59 as of July 24, 2009? Yes
19. Do you understand that the Court will impose a sentence of 60 days/ months in the Washington County Detention Center with said sentence to be imposed on October 23, 2009 if you have not complied with the Purge Provisions below? Yes
20. Do you understand that you may avoid incarceration on that date by complying fully with the following Purge Provisions?
a) Pay current support each week/month of $223.00 effective 8/1/09.
b) Pay an additional amount to reduce the arrears in this case of $55.74 per week/month.
c) Pay a lump sum of $ N/A on or before your sentencing dates outlined in paragraph 19 above in addition to any other payment required by this Purge?
d) Other: ______
21. Do you understand that pursuant to the case of Arrington v. Dept. of Human Resources, 402 Md. 79 (2008[2007] ) you may have the right to assert at sentencing that you do not have the present ability to pay at that time. By entering into this agreement you are waiving that right and are asserting that you will have the present ability to pay on the date of sentencing.
I further certify that I have the present ability to pay the purge provisions recited herein.
(Underlining and strikeouts in original.)
On July 27, 2009, the circuit court entered an order that stated in pertinent part:
Upon consideration of the Delayed Sentencing Agreement entered into by the Defendant Joanie Bradford, it is this 27th day of July, 2009 hereby:
Ordered, that the Defendant Joanie Bradford be and hereby is adjudicated in willful contempt of this Court's Order of 9/26/06 by failing to pay support in accordance with its terms, and it is further Ordered, that the Defendant is hereby sentenced to 60 days in the Washington County Detention Center, imposition of said sentence is delayed to Friday, October 23, 2009 at 8:30 AM. The defendant is hereby ordered to appear on that date and time and it is further:
Ordered, that the Defendant may purge [her]self of [her] contempt and thereby avoid incarceration on that date by [satisfying the purge provisions contained in Paragraph 20 of the DSA].
The docket entries in this case state that Ms. Bradford was “found in contempt” on the date the circuit court signed the order. The docket entries do not indicate that Ms. Bradford was present or that the court held a hearing.
Ms. Bradford did not satisfy the purge provisions set forth in the DSA by the appointed date of October 23, 2009. On that day, she appeared without counsel before the circuit court. The court advised her of her right to counsel, which Ms. Bradford waived. She was sentenced to 60 days incarceration in the Washington County Detention Center, all of which was suspended. In addition, she was ordered to continue to pay $223 per month and her arrearage was determined to be $3,931.21. The court ordered that Ms. Bradford pay an additional $55.74 per month to reduce the amount of the arrearage.
Over the ensuing months, Ms. Bradford's performance of her obligations to pay child support was sporadic and at no time did she make the full payments called for in either the DSA or the court order of October 23, 2009. For reasons not relevant to the issues before us, the contempt proceeding...
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