Bradford v. State

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. 1 ¹⁸¹ 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.

Factual and Procedural Background 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, ¹⁸² 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. 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? ¹⁸⁴ d) Other: _ Do you understand? Yes /s/ JB Initials 21. Do you understand that pursuant to the case of Arrington v. Dept. of Human Resources, 402 Md. 79 [ 935 A.2d 432 ] (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.

Do you understand? Yes /s/ JB Initials I further certify that I have the present ability to pay the purge provisions recited herein. 7/24/09 /s/ Joanie Bradford DATE DEFENDANT (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]. ¹⁸⁵ 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 against her was continued on several occasions.

Finally, on March 12, 2010, the circuit court conducted a hearing which led to the entry of the order giving rise' to this appeal. By this time, Ms. Bradford was represented by counsel. At the hearing, the following ensued: [THE DEPARTMENT]: Next case, Your Honor, is State vs. Joanie Bradford. Civil 25059.

Here for sentencing. THE COURT: Yes, Mr. Reed [Ms. Bradford’s counsel], [DEFENSE COUNSEL]: Your Honor, this is Ms. Bradford. I think she’s already previously been found in contempt. [THE DEPARTMENT]: That’s correct. We are here for disposition .... she’s here for sentencing on 60 days.

Suggest that. ¹⁸⁶ THE COURT: Okay. Just a second. All right, we’re here on a DSA, right? [THE DEPARTMENT]: That’s right. Sentencing.

THE COURT: Sixty day sentence entered into on July 27th, 2009, and the amounts speak for themselves. What are the amounts now before I go through the litany? DSS WORKER: The arrears are $4307.91____The dunning is $656.40. THE COURT: Six fifty six forty.

And there have been any payments since July 27th, 2009? DSS WORKER: Yes, there have. The first payment was received in October for $9.23. In November, we received $18.46.

In December, we received $113.94. January 2010, we received $125.32. . In February, we received $73.56. And today she paid $40.00.

THE COURT: All right. Let the record reflect that the Delayed Sentencing Agreement ... [provided that] if she was out of compliance, a sixty day sentence would be executed on October 23rd, 2009. We have an Order of Court on October 23rd, 2009, ... that the sentence of sixty days was delayed to this date,, and it is suspended, and that, basically, the Defendant shall pay child support as previously ordered, and the arrears were established and earnings withholding orders____And so she’s staring at sixty days. Okay.

First, looking to the DSA, the circuit court determined that Ms. Bradford had consented to a sentence of sixty days incarceration subject to a $656.40 purge. During the hearing, Ms. Bradford was examined by her attorney, counsel for the Department and the court regarding her execution of the DSA. This testimony indicated that appellant had not completed tenth grade; could read and write “a little”; and had signed DSAs on two prior occasions. On each of these occasions, appellant had been represented by counsel; however, she testified that she had not discussed the contents of the DSAs with counsel before signing them.

None of the questions propounded to her by either counsel or the court touched ¹⁸⁷ upon why she was not represented by counsel at the conciliation conference at which the DSA at issue in this appeal was signed. Ms. Bradford also testified that her previous child support payments had been made through a wage lien but that now, despite efforts to find employment, she was not currently working. She presented the court with what purported to be a log showing her efforts to find employment. Ms. Bradford stated that she was having trouble making ends meet and that she was trying to raise two children who currently lived with her.

She testified that she had no money on her person or in any bank account in her name on that day, that she had nothing she could sell and that no one was holding any money or substantial asset of hers which she could use to pay her child support obligations. In closing, the Department argued that: [Ms. Bradford] signed the agreement knowingly and stating, as part of the agreement, that she had the present ability to pay at that time. Now we’re all going to play the Arrington[ 2 ] card here and say, well, she doesn’t have the present ability to pay at this time. But she is, evidently, making money, and she’s making nominal payments.

She’s choosing that she gives forty dollars as opposed to what is required under the terms and conditions of the agreement. Of the one thousand three hundred ninety three dollars and seventy cents due and owing under [the DSA] ..., she’s made seven hundred thirty seven dollars and thirty cents, leaving her compliance amount at six hundred fifty six dollars and forty cents. I think under the terms and conditions, she’s shown an ability to continue to earn and make those payments. She’s allocated them in that fashion.

And she’s chosen to support the children she has as opposed to this obligation. I think she has the ability to pay. ¹⁸⁸ Counsel for Ms. Bradford asserted that, under Arrington , the court could not infer her ability to pay and the court could not order a purge that she could not pay. He continued: And I think the language in Arrington is clear. It’s unambiguous----[i]t’s not proper in a civil proceeding to incarcerate somebody when they don’t have the present ability as they sit there in court to meet the purge.

It’s just not. And whether or not, maybe it is a red herring to talk about whether she signed these agreements in the past or not. I think Arrington , when it came out, kind of made it clear to everybody, ... whether or not those agreements are proper at all, agreeing to future incarceration ... At this point, counsel for the Department interrupted and the following colloquy occurred: [THE DEPARTMENT]: Objection, Your Honor.

We’re not here on a programmatic issue. [DEFENSE COUNSEL]: Well, you’re asking for incarceration. I don’t think it’s proper. [THE DEPARTMENT]: In this case. Not whether agreements generally are appropriate. [DEFENSE COUNSEL]: Well, I don’t think it’s proper at all, and Arrington addresses that head on____ THE COURT: Well, you know, [Defense Counsel], your office has come in here and argued this before with great eloquence. And I’ve had people in your office, maybe even yourself, indicate that this issue is on appeal.

And I haven’t seen any decision. I mean, I’ve read Arrington , but I thought that these so-called delayed sentencing agreements were a target for appeal. We were going to finally get a clarification on that. And I don’t see any case concerning the delayed sentencing agreements as used by Washington County.

I see what Arrington says, but it focuses on the present ability to pay. But I don’t see, I mean, where is this struck down? [DEFENSE COUNSEL]: Your Honor, ... I know Your Honor’s aware that we’ve appealed decisions to incarcer ¹⁸⁹ ate people under these things before and that people have been released as a result of those appeals. THE COURT: Well, not as a result of, they’ve been released, I think, pending the appeal. [DEFENSE COUNSEL]: Oh, no.

The Attorney General’s Office consented to the dismissal of the case and release. And that’s what’s happened. THE COURT: Right. In other words, the appeal was not heard.

THE COURT: All right. What do you want to say [Defense Counsel]? Go ahead. Put it on the record.

Ms. Bradford’s counsel proceeded to argue that the substantive terms of the DSA signed by Ms. Bradford were inconsistent with the Court of Appeals’ analysis in Arrington . He also argued that there was no evidence to support a finding that Ms. Bradford had any present ability to pay her purge. In rebuttal, the State did not address whether DSAs were consistent with Arrington but only argued that there was sufficient evidence for the court to reasonably infer that Ms. Bradford had the ability to pay the purge amount. At the conclusion of the hearing, the court addressed Ms. Bradford stating that: [T]his is all fine legal argument, and I understand it....

I think you had the ability to pay to be more substantially compliant than you were. And, therefore, I’m going to impose [incarceration], I’m not going to give you sixty, I’m going to give you thirty days. And what I’m going to do is, I’m going to reduce the dunning or the purge to two hundred and fifty dollars. And I think that’s reasonable.

You may be receiving food stamps. You may be on medical assistance. That’s a benefit. All right.

And just to say, just because I’m on food stamps, and I’m getting medical assistance, that pro forma, makes me a non-resource. Well that isn’t the case. So I feel that two hundred and fifty dollars is reasonable and she can pay it. She’ll be in jail pending. ¹⁹⁰ The circuit court entered an order imposing a sentence of thirty days confinement in the Washington County Detention Center to begin immediately, subject to the $250 purge.

At the time, the circuit court found Ms. Bradford’s child support payments to be in arrears of $4,307.91. Ms. Bradford’s purge amount was subsequently paid by her husband and she was released from jail on March 15, 2010. Analysis I. The State argues that the appeal should be dismissed on the grounds that it is moot. The State correctly asserts that Ms. Bradford did not appeal the July 21, 2009 order of the circuit court holding her in contempt and that her appeal of the March 12, 2010 order was mooted when the purge was paid and she was released from confinement.

In support, the State cites Arrington, 402 Md. at 90 , 935 A.2d 432 ; and Chase v. Chase, 287 Md. 472, 473 , 413 A.2d 208 (1980), both of which hold that, as a general proposition, an appeal of an order of contempt is moot if the contempt is purged. Ms. Bradford concedes that her appeal is moot. Nonetheless, she suggests that this Court should address the issues raised in her appeal. We agree.

A case is moot when there is “no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.” Suter v. Stuckey, 402 Md. 211, 219-20 , 935 A.2d 731 (2007) (citing, among other cases, Dep’t of Human Res. v. Roth, 398 Md. 137, 143 , 919 A.2d 1217 (2007)). Courts do not entertain moot controversies. Suter, 402 Md. at 219 , 935 A.2d 731 . However, as Judge Zarnoch recently explained in Sanchez v. Potomac Abatement, Inc., 198 Md.App. 436 , 18 A.3d 100 (2011), there are circumstances in which appellate courts will address the merits of a moot case.

The first is where the controversy, even though moot at the time of judicial review, “is capable of repetition but evading review.” 198 Md.App. at 443 , 18 A.3d 100 . The second exception “allows us to express ¹⁹¹ our views on the merits of a moot case to prevent harm to the public interest." Id. at 443 , 18 A.3d 100 (footnote omitted). The Court of Appeals applied the latter exception to reach the merits in Arrington . The issue in that case was whether the Circuit Court for Baltimore City had the authority to confine “fathers found in contempt for failure to comply with child support orders ... until such time as they obtain employment through a work release program or satisfy other conditions they are unable to meet in time to avoid the incarceration.” 402 Md. at 91, 935 A.2d 432 .

Noting that such a practice could affect hundreds of fathers subject to child support orders in the City, the Court of Appeals concluded that appellate review was warranted because it was “urgent and imperative that the issue be resolved.” Id. at 92 , 935 A.2d 432 . Similar considerations are present in this case. While the number of affected persons may not be as large as in Arring-ton, DSAs are widely used in Washington County. See Assessment p. 27.

Ms. Bradford also points to the fact that, when defendants in past proceedings involving DSAs appealed orders imposing jail sentences, the State agreed to release the defendant from confinement if the appeal was dismissed. The State does not contest this assertion. This practice, whatever its basis, makes it unlikely that questions as to the validity of DSAs will receive appellate review. As the circuit court’s comments in Ms. Bradford’s hearing make clear, there is a need for guidance from an appellate court on this issue.

Under such circumstances, appellate review is warranted. See, e.g., Arrington, 402 Md. at 92 , 935 A.2d 432 ; Suter, 402 Md. at 220-21 , 935 A.2d 731 . Counsel for the State informed this Court in oral argument that the “practice in Washington County of filing delayed sentencing agreements has been terminated, ... it’s just too problematic.... The Department has issued instructions to the local office in Washington County and they have indicated that they will comply.” In response, however, Ms. Bradford’s counsel represented to us that there are other child support ¹⁹² enforcement proceedings pending in Washington County that involve DSAs.

The State did not question the accuracy of this contention. Thus, the State’s prospective disavowal of DSAs does not entirely obviate the desirability of addressing the arguments raised by appellant. 3 We will address the merits of appellant’s contentions. 4 II. At one time, the law of contempt in the context of support enforcement proceedings was an area with more than its fair share of “haze and rubble.” Arrington, 402 Md. at 92 , 935 A.2d 432 . Many of the uncertainties on this subject were clarified through the adoption of the current versions of Maryland Rules 15-201 through 15-208, which pertain to contempt proceedings.

These rules have been explained, interpreted and applied in a series of decisions by the Court of Appeals, including Arrington, 402 Md. at 92-106 , 935 A.2d 432 ; Bryant v. Soc. Servs., 387 Md. 30, 46-50 , 874 A.2d 457 (2005); and Jones v. State, 351 Md. 264, 277-82 , 718 A.2d 222 ¹⁹³ (1998). Our task in this case is to apply this now well-developed body of law to the DSA. As Judge Wilner noted for the Court in Arrington, 402 Md. at 92 , 935 A.2d 432 , the universe of contempt proceedings is divided into four quadrants: direct and constructive contempt; and criminal and civil contempt.

See also Ashford v. State, 358 Md. 552, 563 , 750 A.2d 35 (2000). Direct contempt is “a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” Rule 15-202(b). All other forms of contempt are constructive. Maryland Rule 15-202(a).

An obligor’s failure to pay court-ordered support payments can constitute constructive contempt. Ashford, 358 Md. at 567 , 750 A.2d 35 . The precise delineation between criminal and civil contempt has been hard to draw at times. See, e.g., State v. Roll and Scholl, 267 Md. 714, 728 , 298 A.2d 867 (1973); Winter v. Crowley, 245 Md. 313, 316-18 , 226 A.2d 304 (1967).

These difficulties do not concern us as there is no question that a failure to pay child support exposes the obligor to civil contempt and, under appropriate circumstances, criminal contempt proceedings. Arrington, 402 Md. at 98 , 935 A.2d 432 ; see also Dorsey and Craft v. State, 356 Md. 324, 350 , 739 A.2d 41 (1999). There is a conceptual difference between civil and criminal constructive contempt proceedings. As the Arrington Court explained: [A] civil contempt proceeding is intended to preserve and enforce the rights of private parties to an action and to compel obedience to orders and judgments entered primarily for their benefit.

Such a proceeding ... is remedial, rather than punitive, in nature, intended to coerce future compliance, and, accordingly, a penalty in a civil contempt must provide for purging. Conversely, the penalty in a criminal contempt proceeding is to punish for past misconduct, which may no longer be capable of remedy. That kind ¹⁹⁴ of penalty is