Opinion
NO. 2012-CA-001337-MR
06-21-2013
VIRGIL KEITH CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 11-CR-00744
OPINION
AFFIRMING
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Virgil Keith Carpenter appeals from a June 28, 2012, judgment of the Fayette Circuit Court finding him guilty of contempt of court and imposing a six-month sentence. Carpenter argues that he was denied due process of law. We affirm.
On September 9, 2011, Carpenter entered a plea of guilty to one count of first-degree possession of a controlled substance and one count of second-degree possession of a controlled substance. The Commonwealth recommended a sentence of one year on the first charge and twelve months on the second. Carpenter's final sentencing was set for October 21, 2011, and he was released on an unsecured bond. Carpenter failed to appear for sentencing. The trial court issued a bench warrant for contempt of court, which was served on Carpenter the following May. A show cause hearing was scheduled for May 11, 2012.
At the hearing, the judge stated that he was not sure whether the Commonwealth would attempt to indict Carpenter for bail jumping or whether his failure to appear would be treated as contempt of court. Sentencing was set for May 17, 2012.
At the May 17 sentencing hearing, the trial court stated that Carpenter would be charged either with contempt (by the trial court) or with bail jumping, but not with both. At the Commonwealth's request, the trial court postponed sentencing until after the bail jumping charge had been presented to the grand jury.
At the next hearing on June 28, 2012, the trial court was informed that the grand jury had not indicted Carpenter for bail jumping. The trial court imposed a sentence in accordance with the Commonwealth's recommendation of one year for the first-degree possession charge and a sentence of twelve months for the second-degree possession charge, to run concurrently. Carpenter's defense counsel explained that Carpenter had 202 days of custody credit and would prefer to serve out the sentence rather than receive probation. The trial court stated that the "bump in the road" was the fact that Carpenter had failed to appear for sentencing in October 2011 and had not been heard from for seven months thereafter. The trial court noted that Carpenter had a long criminal history with numerous alcohol-related charges. Carpenter's defense attorney was allowed to respond. He pointed out that if Carpenter had appeared at that sentencing hearing, his sentence would presumably have been probated. Instead, after his arrest on the warrant for contempt of court, he had served forty-two days in custody, so he had paid a price for not appearing for final sentencing. The trial court found Carpenter guilty of contempt of court and imposed an additional sentence of six months to run consecutively with the one-year sentence. Carpenter then filed this appeal which only challenges the imposition of the contempt penalty.
On appeal, Carpenter argues that he was denied due process of law because the trial court did not hold an adequate hearing before finding him guilty of criminal contempt. Although this issue is unpreserved by objection, he contends that it should nonetheless be reviewed as a structural error that undermined the "fundamental legitimacy of the judicial process." Moorman v. Com., 325 S.W.3d 325, 329 (Ky. 2010) (citation omitted).
Contempt is defined as "the willful disobedience toward, or open disrespect for, the rules or orders of a court." Com. v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). There are two types of criminal contempt: direct and indirect.
A direct contempt is committed in the presence of the court and is an affront to the dignity of the court. It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court. Indirect criminal contempt is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the court's order. It may be punished only in proceedings that satisfy due process.Id. at 808 (citations omitted).
The Commonwealth does not dispute that Carpenter's failure to appear at his sentencing hearing on October 21, 2011, constituted an indirect contempt since it was committed outside the presence of the court. Carpenter argues that he was entitled to a hearing and the presentation of evidence to establish that he had violated the court's order.
Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.Cooke v. United States, 267 U.S. 517, 537, 45 S. Ct. 390, 69 L. Ed. 767 (1925).
Carpenter contends that he was not given adequate notice of the contempt charge, beyond being told by the court at the May 17, 2012, hearing, that he would be charged with contempt or bail jumping, but not both. But, Carpenter was made fully aware that a sentencing hearing would be held at which he would face a contempt charge if the grand jury did not indict him for bail jumping. The trial court's statements constituted adequate notice under the circumstances.
Carpenter further argues that the trial court should have inquired into the reason or rationale for his failure to appear. He argues that the fact he was represented by counsel at final sentencing is irrelevant because the trial court never informed him or his counsel that he could call witnesses or give a reason for his failure to appear. Although the trial court did not expressly question him or his attorney regarding the reasons underlying his failure to appear, he and his attorney were given ample opportunity to be heard regarding any mitigating evidence. See Schroering v. Hickman, 229 S.W.3d 591, 595 (Ky. App. 2007) (finding that the due process rights of an attorney facing a contempt charge "were violated when she was not allowed to be heard.") As we have already described, defense counsel was permitted to speak at some length about the time Carpenter had already served after his arrest for contempt. The only other evidence before the court was that Carpenter had failed to comply with a court order; at no time did Carpenter or his attorney attempt to present any evidence to explain his failure to appear at the sentencing hearing. We do not believe it was the duty of the trial court to attempt to elicit exculpatory evidence from Carpenter on this issue.
Carpenter was afforded adequate due process at his sentencing hearing but chose not to call any witnesses or attempt to explain his actions. Had Carpenter been denied any attempt to call witnesses or introduce evidence regarding his actions at the May 17 or June 28 hearings, our holding might be different. Coupled with his failure to object to the imposition of the contempt sentence, we find no error.
Consequently, there was no structural error that rendered the entire process "fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Moorman, 325 S.W.3d at 329-30 (citing Washington v. Recuenco, 548 U.S. 212, 219, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)).
For the foregoing reasons, the judgment of the Fayette Circuit Court convicting and sentencing Carpenter for criminal contempt of court is affirmed.
MOORE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky