Commonwealth v. Brawner: Willful Nonpayment of Court Costs, Indigence, and Community Service in Probation Revocations

I. Introduction

Commonwealth v. Brawner (Supreme Court of Virginia, Dec. 18, 2025) is a published order that clarifies how Virginia courts should evaluate a probationer’s failure to pay court costs, particularly where the defendant claims indigence and there exists an available community service alternative under Code § 19.2-345(C).

The case arises out of Arlington County and pits the Commonwealth against probationer Derek Brawner. After Brawner received a five-year suspended sentence and three years of supervised probation for drug and firearm offenses, he failed to satisfy his court cost obligations. The circuit court found him in violation of probation and ordered community service in lieu of payment.

The Court of Appeals reversed, holding that because the record did not support a finding that Brawner willfully failed to comply and because he was never informed of the community service option, the revocation was an abuse of discretion. The Supreme Court of Virginia disagreed, reversed the Court of Appeals, and entered final judgment for the Commonwealth.

The order is significant in several respects:

It reaffirms that the defendant bears the burden of showing an inability to pay court costs in revocation proceedings.
It clarifies that a trial court’s offer or order of community service in lieu of costs does not amount to an implicit finding that the defendant has no ability to pay.
It underscores the strong deference appellate courts must give to trial courts’ factual findings and to their discretionary decisions in probation revocations.
It illustrates how evidence of employment, entrepreneurial efforts, and substantial bail postings can support an inference of willful nonpayment, even where indigence has been found at an earlier point.

II. Summary of the Opinion

A. Factual Background

In July 2019, Derek Brawner pled guilty to:

Possession of heroin,
Possession of a firearm while possessing heroin, and
Possession of a firearm by a convicted felon.

The circuit court imposed a five-year sentence, suspended it, and placed Brawner on three years of supervised probation. The sentencing order required him, among other conditions, to pay court costs. He also signed a “court cost agreement form” obligating him either to pay the costs or to establish a payment plan with the clerk within 45 days of his release from incarceration. The costs totaled $3,373.

Brawner was released on probation in May 2021 (after serving time on another charge). In September 2021, the clerk mailed him notice that he owed $3,373, that “payment is due NOW,” and that failure to pay or enter a payment agreement could result in incarceration.

In November 2021, the probation office filed a major violation report after Brawner was arrested in Maryland on gun charges. He was able to post a $55,000 bond in Maryland and was separately held without bond in Virginia on a probation violation. In December 2021, Brawner:

Paid $500 toward his court costs; and
Was found indigent for purposes of appointment of counsel (the public defender).

In January 2022, the court continued the case to April at Brawner’s request and released him on his own recognizance. Several continuances and drug tests followed:

April 2022: Brawner tested positive for drugs; case continued to June.
June 2022: He again tested positive for marijuana; case continued to August.
August 2022: At his request, case continued to October.
October 7, 2022: Maryland charges had been dropped; the circuit court revoked his bond because of repeated positive marijuana tests, continued the case to November, and identified court costs as an issue.
Mid-October 2022: Brawner posted a $35,000 bond in Virginia and was released.
November 2022: The Maryland matter resurfaced as federal charges.

Throughout this time, the record shows:

He had two children and helped support them; his wife worked as a massage therapist.
In January 2021, he reported earning about $1,500 per month as a bricklayer (when not incarcerated).
After release, he worked as a truck driver and then as a flagger, earning $14 per hour with 30–40 hours per week at one point, until another period of detention cost him that job.
He started a candle-making business, though the record does not show his earnings from it.
He successfully posted $55,000 bond in Maryland and $35,000 bond in Virginia. The record does not state who provided those funds.

Notably, after the $500 payment in December 2021, Brawner made no further payments until he paid $50 on the morning of the December 2022 hearing. There is no record of his attempting:

To establish a payment plan; or
To seek a deferred or reduced payment schedule; or
To request conversion of costs to community service before the revocation hearing.

B. Proceedings in the Circuit Court

At the December 2022 hearing, the circuit court focused on Brawner’s lack of payments and lack of proactive steps concerning his court costs between December 2021 and December 2022.

The court queried defense counsel about whether Brawner had sought relief by performing community service in lieu of payment, as authorized by Code § 19.2-345(C). Counsel responded that he did not believe so. The judge remarked, “I don't see any reason why he couldn't [have] come before the Court to do community service hours.”

The court then found Brawner in violation of the conditions of his probation for failure to pay court costs. Defense counsel objected that failure to perform community service was not a condition of probation. The judge clarified that:

Brawner had been ordered to pay within 45 days;
If Brawner had shown “good cause” for not paying, the court could “potentially not find a violation”; and
Brawner “took no action for relief” and “just ignored” the court’s order regarding costs.

The court stated it did not find good cause for Brawner’s failure to act on his court costs “except, when he has a court date, coming up to pay $50.” When defense counsel protested that Brawner had not been notified of the community service option, the court replied that “the fact that he ignored his court costs obligation is the reason why he finds himself in this circumstance[].”

Ultimately, the circuit court:

Revoked his previously suspended sentence;
Re-suspended it; and
Ordered 277 hours of community service in lieu of court costs, at a rate of 10 hours per month.

C. Decision of the Court of Appeals of Virginia

A panel of the Court of Appeals reversed. It:

Found that “the fact of Brawner’s indigence is undisputed”; and
Emphasized Code § 19.2-345(C), which assigns to the trial court the responsibility to inform defendants about the availability of community service in lieu of costs.

Because the record did not show that Brawner had been informed of this option, the Court of Appeals concluded that the circuit court erred by treating his failure to seek community service as a willful violation. It read the circuit court’s comments as conditioning its finding of violation on Brawner’s lack of initiative regarding community service and thus held there was no evidence that he had willfully failed to comply with probation.

D. The Supreme Court’s Holding

The Supreme Court of Virginia reversed the Court of Appeals and entered final judgment for the Commonwealth. The Court held:

Viewing the evidence in the light most favorable to the Commonwealth and under the deferential abuse-of-discretion standard, the record supported the circuit court’s finding that Brawner’s nonpayment was willful.
The burden was on Brawner to demonstrate inability to pay, and the record did not show that he could not have paid anything or sought a payment plan over the course of a year.
The Court of Appeals misread the circuit court’s remarks; the violation rested on Brawner’s ignoring his court cost obligations, not on his failure to request community service.
The circuit court’s decision to allow community service as a remedy did not imply a legal finding that Brawner had no ability to pay.

The Supreme Court concluded there was no abuse of discretion in revoking and re-suspending Brawner’s sentence and ordering community service in lieu of costs.

III. Precedents and Statutes Cited

A. Standard of Review and Deference to Trial Courts

The Court reaffirmed the core principles governing appellate review of probation revocations:

Viewing the evidence in the light most favorable to the Commonwealth: The Court cited Johnson v. Commonwealth, 296 Va. 266, 274 (2018), quoting Henderson v. Commonwealth, 285 Va. 318, 329 (2013), for the rule that appellate courts must consider the evidence “in the light most favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate inferences that may properly be drawn from it.”
Abuse-of-discretion standard: The Court relied on Duff v. Commonwealth, 16 Va. App. 293, 297 (1993), quoting Hamilton v. Commonwealth, 217 Va. 325, 327 (1976), to emphasize that “[t]he sufficiency of the evidence to sustain an order of revocation ‘is a matter within the sound discretion of the trial court’” and is reversible only upon a clear showing of abuse.

These authorities framed the Court’s critical stance toward the Court of Appeals’ conclusion: the Supreme Court insisted that the intermediate court had not adequately respected the deference owed to the circuit court’s factual and discretionary determinations.

B. Court Costs, Payment Plans, and Revocation Authority

Several statutes structure how Virginia courts handle court costs and nonpayment:

Code § 19.2-336: Requires a convicted defendant to pay “certain court costs that are generated by the prosecution of the case.”
Code § 19.2-354: Authorizes courts, typically through the clerk’s office, to establish a payment plan, including installments or deferred payments.
Code § 19.2-306: Provides that, where a sentence has been suspended, “the court may revoke the suspension of sentence for any cause the court deems sufficient.”
Code § 19.2-358: Allows the court to remit unpaid portions of fines or costs in whole or in part.
Code § 19.2-345(C): Authorizes community service as a substitute for payment of fines and costs and charges the court with informing eligible individuals about this option.

These provisions collectively give trial courts both:

Distinct enforcement mechanisms (revocation, modification, remittitur, community service); and
Wide discretion to tailor obligations to a defendant’s financial circumstances.

C. Constitutional and Statutory Limits on Sanctioning Nonpayment

The Supreme Court placed its analysis squarely within the framework established by:

Smallwood v. Commonwealth, 300 Va. 426 (2022): The Court reiterated Smallwood’s key points:
- When nonpayment is at issue in a revocation, “the court must inquire into the reasons for the defendant’s failure to pay.”
- “The burden of proving an inability to pay, however, rests with the defendant.”
Bearden v. Georgia, 461 U.S. 660 (1983): Although only briefly cited, Bearden provides the constitutional baseline: a court may not revoke probation and imprison a defendant solely because of his inability to pay, without considering whether the nonpayment was willful or attributable to circumstances beyond his control.
Ohree v. Commonwealth, 26 Va. App. 299 (1998): Ohree elaborates that:
- The court must give the defendant an opportunity to show that the default was not due to a refusal to make a good-faith effort to pay.
- In response, the trial court may extend time, reduce installment amounts, or remit part or all of the obligation (consistent with Code § 19.2-358).
- It is an abuse of discretion to sanction a defendant who neither intentionally refused to pay nor had the financial ability to do so.
- The statutory authority to set payment schedules “implies that the trial judge will act with sound judicial discretion.”

Brawner applies these principles to a concrete fact pattern and underscores that a defendant must actively develop a record demonstrating inability and good-faith efforts, rather than resting on a generalized claim of indigence.

D. Appellate Use of the Record and Reading Trial Judges in Context

Two additional lines of authority guided the Supreme Court’s engagement with the Court of Appeals’ reasoning:

Limits of the appellate record: The Court invoked Woodfin v. Commonwealth, 236 Va. 89, 97–98 (1988), for the principle that appellate courts are confined to the record. The Court rejected Brawner’s assertion (made in his brief but unsupported by the record) that his wife used borrowed funds and limited savings to pay the bail bond fees. Without an evidentiary basis, those claims could not be considered.
Reading trial court comments in full context: Relying on Coward v. Wellmont Health Sys., 295 Va. 351, 363 n.11 (2018), and Yarborough v. Commonwealth, 217 Va. 971, 978 (1977), as well as Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 217 (2023), the Court stressed that appellate courts should not “fix upon isolated statements of the trial judge taken out of the full context in which they were made” as a foundation for reversing a judgment for misapplying the law.

This framework was critical to rejecting the Court of Appeals’ reading that the circuit court had effectively found Brawner incapable of paying and then punished him for not requesting community service.

IV. The Court’s Legal Reasoning

A. Assessing Brawner’s Financial Condition and Ability to Pay

The Supreme Court accepted that Brawner had “limited resources” but focused on whether the record showed that he could not pay anything toward his court costs or seek a payment plan during the year between his $500 payment and the December 2022 hearing.

The Court emphasized:

His employment history (bricklayer, truck driver, flagger);
His entrepreneurial venture (candle-making business, albeit with unknown earnings); and
His ability to post $35,000 bond in Virginia and $55,000 bond in Maryland, with no record evidence contradicting the inference that these resources were available to him or in his control.

In light of this record, and given the burden placed on the defendant under Smallwood, the Court held that:

“The evidence plainly establishes Brawner’s limited resources, but it does not support a conclusion that he could pay nothing at all towards his court costs over the duration of an entire year.”

The Court noted that:

There was “no indication that Brawner sought an installment or a deferred payment plan, despite being informed several times about that option.”
Brawner did not present evidence—beyond generalized indigence—that he was wholly unable to pay any amount or to structure payments.

From these facts, the circuit court could rationally infer that a year-long failure to make any meaningful payment (apart from a last-minute $50 on the day of the hearing) or to seek a payment agreement reflected a willful disregard of the obligation rather than an inability to comply.

B. The Court of Appeals’ Misreading of the Circuit Court’s Use of Community Service

A core dispute in the appeal concerned the meaning and legal effect of the circuit court’s discussion of community service. The Court of Appeals reasoned:

Because the circuit court ultimately allowed community service instead of payment, it must have implicitly found that Brawner lacked the ability to pay his costs.
Given Code § 19.2-345(C)’s requirement that the court inform a defendant of the community service option, and the absence of record evidence that Brawner had been so informed, the court could not deem his failure to seek community service a willful violation.

The Supreme Court rejected this logic on two fronts.

1. Local Payment Plan Policy Is Not a Finding of Indigence

The Court referred to Arlington County’s Payment Plan Policy, which provides, among other things:

For debts of $500 or less, defendants will generally be expected to pay 10% per month.
For larger debts, the expectation is 5% per month.
Defendants whose financial circumstances allow them to pay but not in those amounts may petition to lower monthly payments or to perform community service in lieu of fines and costs.

The Court noted that this policy:

Is “just that, a policy, not a law or a factual finding”; and
Is “apparently liberally construed,” as evidenced by the circuit court’s comment that “community service is pretty much always provided.”

Thus, the fact that a defendant is permitted to perform community service does not equate to a judicial determination that the defendant has zero ability to pay. It is instead:

A policy-based, discretionary accommodation; and
One option among several discretionary responses to nonpayment under the statutory scheme.

2. The Violation Was Based on Ignoring Court Costs, Not Failing to Seek Community Service

On a careful reading of the full exchange between the circuit court and defense counsel, the Supreme Court found that the circuit court’s finding of violation rested on Brawner’s failure to pay and to seek any relief, not on a duty to affirmatively request community service.

The Court highlighted the judge’s concluding statement:

“The fact that he ignored his court costs obligation is the reason why he finds himself in this circumstance[].”

The Court interpreted the colloquy about community service as illustrating that:

If Brawner had truly been unable to pay, he could have come before the court to seek alternatives, including community service; and
Such relief is “pretty much always provided,” suggesting that defendants have accessible avenues to avoid accumulation of unmanageable obligations.

However, the Supreme Court was clear that:

The circuit court did not find a violation because Brawner failed to perform or seek community service—community service was not a condition of probation, as defense counsel correctly pointed out.
Rather, the violation derived from his ignoring a direct, time-bound financial obligation and declining to engage with available mechanisms (payment plans, motions, etc.) to manage that obligation.

Against that backdrop, the Court relied on Coward and Yarborough to caution against seizing on isolated statements and mischaracterizing the trial court’s reasoning.

C. Indigence and the Appointment of Counsel

Brawner underscored that the circuit court had previously found him indigent and appointed the public defender. The Supreme Court treated this fact with care:

Yes, the appointment reflected a finding of indigence at that time (December 2021).
But the hearing on nonpayment occurred nearly a year later, by which time Brawner had obtained multiple forms of employment and started a small business.

The Court reiterated that:

“Again, the burden of proving an inability to pay court costs rested with Brawner.”

In other words, a past finding of indigence for purposes of appointed counsel does not automatically prove continuing inability to make incremental payments or to enter a reasonable payment plan, especially when subsequent employment and economic activities are evident in the record.

D. Ultimate Conclusion: No Abuse of Discretion

Bringing these strands together, the Supreme Court concluded that:

Given the evidence of Brawner’s work and his ability to post large bonds, plus the absence of evidence that he could not have paid anything or arranged a plan, the circuit court could reasonably find willful nonpayment.
The circuit court complied with the requirement to consider reasons for nonpayment; it considered Brawner’s circumstances and found no “good cause” for a year of inaction.
The use of community service as a remedial measure did not undermine the finding of willfulness or reflect legal error.

The Court also acknowledged the broader fairness concern:

“Court costs can be a crushing burden for persons of modest means. The exercise of discretion may point in the direction of informing a probationer about the option of community service, a postponement of the payment of such costs, or remitting them altogether. In other situations, the exercise of discretion may prompt the court to require a defendant to pay some or all of these costs—costs that were, after all, occasioned by a defendant's decision to engage in criminal behavior.”

Yet, in this case, the Court was not persuaded that the circuit court exceeded its discretion in the balance it struck.

V. Complex Concepts Explained in Plain Terms

A. Suspended Sentences, Probation, and Revocation

A suspended sentence is a jail or prison sentence that the judge does not immediately require the defendant to serve. Instead, the defendant is:

Released under supervision (probation); and
Subject to conditions (such as obeying laws, avoiding drugs, paying costs, etc.).

If the defendant violates those conditions, the court may revoke (lift) the suspension and order some or all of the underlying sentence to be served. Code § 19.2-306 gives courts very broad authority to revoke for “any cause the court deems sufficient.”

B. Court Costs and Payment Plans

Court costs are fees and charges associated with prosecution and handling of a criminal case (e.g., clerk’s fees, court reporter fees, etc.). Virginia law:

Requires defendants to pay these costs when they are convicted; and
Allows courts/clerk’s offices to set up payment plans or deferments (Code § 19.2-354) and to remit some or all of the costs (Code § 19.2-358).

Payment plans let a defendant:

Pay over time, often in monthly installments; or
Defer payment until a later date when they are more able to pay.

C. Indigence vs. Inability to Pay Everything

Indigence in the criminal context often means the defendant:

Cannot afford to hire a lawyer and thus qualifies for court-appointed counsel.

But indigence in that sense does not necessarily mean the defendant has no ability to pay any court costs or fines, especially over a long period. A person may:

Be poor enough to need appointed counsel; yet
Still be able to pay modest amounts (e.g., small monthly payments) if properly structured.

In revocation proceedings for nonpayment, the key constitutional and statutory question is:

Was the failure to pay willful (meaning the person could have paid something reasonable but chose not to), or was it due to a genuine inability despite good-faith efforts?

D. Willful Nonpayment

Willfulness in this context means:

Conscious, deliberate choice or indifference to the obligation; not mere oversight or unavoidable poverty.

Courts look to:

Work history and earning capacity;
Assets, resources, or access to funds (e.g., ability to make substantial bail);
Efforts (or lack of efforts) to obtain work, to pay at least something, or to set up a payment plan; and
Whether the defendant came to court to explain and seek adjustments.

If the record suggests the defendant:

Could have paid some reasonable amount; and
Did not take steps to do so or to seek relief;

then a court may infer that nonpayment was willful.

E. Community Service as an Alternative

Under Code § 19.2-345(C), Virginia courts may allow defendants to perform community service instead of paying court fines and costs. This is intended as a relief mechanism when:

A defendant cannot reasonably afford to pay the full amount or the standard scheduled payments; but
Can contribute time and labor to benefit the community.

Importantly, Brawner makes clear that:

A court’s use of community service does not automatically mean the defendant is wholly incapable of any payment.
It is a discretionary tool within a broader toolkit (payment plans, deferrals, remittitur, partial payments, etc.).

F. Standard of Review: “Abuse of Discretion”

An abuse of discretion standard is extremely deferential. An appellate court does not ask whether it would have made the same decision but instead:

Presumes the trial court’s decision is correct;
Views the evidence in the light most favorable to the party who won below (here, the Commonwealth); and
Will reverse only if the decision was plainly wrong or unsupported by the evidence.

This standard is particularly important in probation revocation cases, which turn heavily on factual assessments and judgments about credibility and reasonableness—matters that trial judges are generally better positioned to evaluate.

VI. Impact and Future Implications

A. Reinforced Burden on Defendants in Nonpayment Revocation Cases

Commonwealth v. Brawner confirms and concretizes the rule that:

The defendant bears the burden of showing that nonpayment of court costs is due to an inability to pay despite good-faith efforts, rather than a willful refusal or neglect.

In practice, defense counsel must:

Develop a detailed record of the defendant’s income, assets, expenses, and dependents;
Document efforts to find employment or generate income;
Show attempts to make partial payments or to negotiate payment plans; and
Explain how bail was posted (if that fact might otherwise suggest financial capacity).

Failure to develop such a record now more clearly risks a finding of willfulness and a corresponding revocation, particularly when the defendant makes no payments and does not ask the court for relief over an extended period.

B. Community Service: A Helpful Option, Not a Shield

Brawner sends a nuanced message about community service:

Trial courts should consider it as a humane and practical alternative, especially given that “community service is pretty much always provided” in some jurisdictions.
But the mere existence of a statutory duty to inform defendants of this option does not insulate from revocation a defendant who has made no payments, no efforts, and no requests for relief.

This underscores that:

Community service is a remedy for financial difficulty, not a standalone right that nullifies the obligation to respond to court orders.
Defendants remain obligated to act—by paying what they can, asking for adjustments, or seeking community service—rather than ignoring obligations until a violation hearing forces the issue.

C. Guidance for Appellate Courts

The Supreme Court’s reliance on Coward, Yarborough, and Wahlstrom reinforces that appellate courts:

Must interpret trial courts’ remarks in context, drawing reasonable inferences in favor of the prevailing party; and
Must avoid overturning trial courts based on isolated snippets of language that do not accurately reflect the thrust of the ruling.

This is especially important in revocation cases, where trial judges often speak informally in colloquy and where appellate micromanagement could unduly restrict trial-level discretion.

D. Interaction with Bearden and Smallwood: Guardrails Still in Place

Brawner operates within, and does not undercut, the constitutional guardrails set by Bearden and the statutory framework highlighted in Smallwood and Ohree. The decision:

Affirms that a court must inquire into reasons for nonpayment.
Recognizes that sanctioning a defendant who truly cannot pay is an abuse of discretion.
Still leaves substantial room for courts to extend time, reduce payments, or remit costs when the record supports genuine inability.

What Brawner contributes is a concrete affirmation that:

Nonpayment plus no effort to engage with the court or clerk’s office—over a substantial period—can support a finding of willfulness.
Evidence of some financial resources (e.g., employment, posting significant bail) is incompatible with a bare, unelaborated claim of total inability to pay anything.

E. Practical Takeaways for Stakeholders

For trial judges:

Continue to make explicit inquiries about reasons for nonpayment.
Consider documenting on the record the availability and explanation of payment plans and community service, to forestall later disputes.
Where appropriate, use community service and remittitur to mitigate the harshness of costs on marginally resourced defendants.

For defense counsel:

Advise clients early about the need to engage proactively with the clerk’s office and the court about costs.
File motions for payment plans, reduced installments, or community service where financial strain is substantial.
Ensure the record clearly reflects who paid any significant bail and on what terms, to counter any inference of liquid assets if appropriate.

For prosecutors:

Develop evidence showing a defendant’s earning capacity, work history, and financial decisions (such as posting bond) where nonpayment is at issue.
Frame revocation arguments around willfulness and the availability of alternatives the defendant chose not to pursue.

VII. Conclusion

Commonwealth v. Brawner stands as an important clarification of Virginia law on revocations for failure to pay court costs. It does not create a radically new rule, but it refines and concretizes several doctrines:

The defendant bears the burden of showing a genuine inability to pay, and courts may infer willfulness from prolonged nonpayment combined with available resources and a lack of effort to seek relief.
Trial courts possess broad discretion under Code § 19.2-306 to revoke suspended sentences, constrained by the constitutional and statutory requirement not to punish poverty but to distinguish between inability and willful noncompliance.
Community service under Code § 19.2-345(C) is a discretionary tool—a way to ameliorate the burden of costs—not a shield that automatically negates violation findings or transforms nonpayment into non-willful conduct.
Appellate courts must adhere strictly to the record, avoid importing unsupported assertions, and read trial court remarks holistically rather than seizing on isolated statements to find legal error.

In reinstating the circuit court’s revocation order and community service disposition, the Supreme Court reaffirms both the flexibility and the responsibility of trial courts in managing the complex intersection of criminal accountability, economic hardship, and the enforcement of court-ordered financial obligations. The order will likely serve as a key reference point in future Virginia cases involving probation revocation for nonpayment of fines and costs, especially where indigence and alternative sanctions are at issue.