COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
WILLIAM P. ROBINSON, JR.
OPINION BY
v. Record No. 3389-01-1 JUDGE ROBERT P. FRANK
JULY 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
William P. Robinson, Jr. (George A.
Anderson, Jr.; Robinson, Neeley, and
Anderson, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
John H. McLees, Senior Assistant Attorney
General, on brief), for appellee.
William P. Robinson, Jr. (appellant) was convicted in a
bench trial of common law criminal contempt of court. On
appeal, he contends the trial court erred in (1) finding the
evidence was sufficient to convict and (2) imposing punishment
that exceeded the limitations of Code §§ 18.2-456(1) and
18.2-457. For the reasons stated, we affirm the judgment of the
trial court.
BACKGROUND
The facts are uncontroverted. Appellant, a licensed
attorney, had three criminal matters set for hearings in
Northampton County Circuit Court on July 23, 2001. Two of the
matters involved entry of guilty pleas, and the other involved a
sentencing. On July 19, 2001, Wendell Donald Brown, appellant's
"paralegal investigator," called Bruce D. Jones, Jr., the
Northampton County Commonwealth's Attorney, to ask that the
three cases set for July 23rd be continued. Brown explained
appellant had jury trials in other jurisdictions that would run
over their estimated time and continue onto July 23rd. Although
Brown knew appellant had several cases scheduled in Virginia
Beach Circuit Court for the morning of July 24th, he suggested
July 24th as an appropriate day for the Northampton cases. He
did not tell Jones about the Virginia Beach cases.
Jones told Brown that he had to appear in general district
court on July 24th and that the circuit court judge would not be
in Northampton County that day. He told Brown to contact the
circuit court judge's secretary.
Brown talked to the judge's secretary, and the cases were
rescheduled for July 24th at 11:00 a.m. Brown informed the
Commonwealth and appellant of the change. Appellant then asked
Brown to send letters to the Virginia Beach prosecutors
requesting continuances for five cases set for July 24th in
Virginia Beach. 1 The letters were sent on July 20th. Neither
1
In actuality, six cases were set for July 24th in Virginia
Beach, but one was not recorded properly in appellant's
computerized docketing system. The error was discovered some
time in the morning on July 24th.
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Brown nor appellant actually spoke to the Virginia Beach
prosecutors prior to the 24th to confirm the continuances.
During his testimony, appellant acknowledged knowing that
the Northampton cases were set for 11:00 a.m. on July 24th. He
acknowledged that, when he suggested the July 24 day to
Northampton, he knew he had cases set for that day in the
Virginia Beach Circuit Court. While appellant did not verify
that the Virginia Beach cases could be continued prior to
setting the Northampton cases, he explained he had no reason to
believe the Virginia Beach cases would not be continued.
The jury trial that appellant expected to run until July
23rd was settled prior to its conclusion. As a result,
appellant did not have court on July 23rd. However, he did not
contact the Virginia Beach prosecutors or courts to ask about
the continuances.
On the morning of July 24th, appellant went to Virginia
Beach to confirm his requested continuances and get new dates
for those cases. He arrived at approximately 9:30 a.m. His
cases were in several different courtrooms with different
judges. Appellant characterized his predicament: "It took
longer to confirm dates, continuances, make the motions before
the judges because there were cases all over the place."
Additionally, he had a hearing on a probation violation,
requesting that a defendant be evaluated for a diversion
program.
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Despite the length of the Virginia Beach transactions,
appellant never notified the Northampton court that he was
"running late." He had the opportunity to contact his office
and ask them to call the court, but he "didn't really think of
it." Appellant testified he had anticipated resolving his cases
in Virginia Beach in no more than "a half-hour or so." 2
At 11:00 a.m. on July 24th, Jones and all three of
appellant's clients were present in the Northampton court. The
judge was waiting in chambers, and court personnel were present,
but appellant did not appear. Eventually, the judge recessed
for lunch. After lunch, Jones was told that the judge would not
return to court that day. Sometime after 1:00 p.m., appellant
called Jones from his cell phone, saying that he was just coming
off the Bay Bridge Tunnel and he understood the judge had left
the bench for the day.
The trial court issued a contempt show cause for appellant.
A plenary hearing was held on November 7, 2001. At the outset
of the hearing, the court explained that appellant was charged
with indirect contempt, rather than direct contempt, and that
the hearing was a plenary hearing rather than a summary hearing. 3
2
The trial court indicated that the trip from the Virginia
Beach Circuit Court to the Northampton County courthouse takes
"at least an hour."
3
The conviction order recited the trial court found "Code
§ 18.2-456.1" (sic) inapplicable.
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The trial court found appellant guilty of criminal contempt
of court, reiterating that he is not bound by the constraints of
Code § 18.2-456(1) because this contempt was indirect and not
disposed of in a summary fashion. The trial court explained,
"[T]here were cases scheduled intentionally and willfully at the
same time [in two separate jurisdictions]." The trial court
further commented on appellant's failure to contact the
Northampton court about his tardiness. The trial court fined
appellant $1,000 and sentenced him to thirty days in jail,
suspended upon certain terms and conditions. The court also
prohibited appellant from taking any new cases within the
jurisdiction of Northampton County for one year. 4
ANALYSIS
A. Sufficiency
First, appellant contends the evidence was insufficient to
convict him because he had no intent to obstruct or interfere
with the administration of justice. He asserts, to the contrary,
he acted in the best interest of his clients and the
administration of justice. We disagree.
On review of an insufficiency claim, "'this Court does not
substitute its judgment for that of the trier of fact.'" Jett v.
Commonwealth, 29 Va. App. 190, 194, 510 S.E.2d 747, 748 (1999)
(en banc) (quoting Canipe v. Commonwealth, 25 Va. App. 629, 644,
491 S.E.2d 747, 754 (1997)). "Where the court's authority to
4
This restriction was lifted on July 29, 2002, after the
trial court was convinced appellant had remedied the causes for
his previous behavior.
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punish for contempt is exercised by a judgment rendered, its
finding is presumed correct and will not be reversed unless
plainly wrong or without evidence to support it." Brown v.
Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d 147, 149 (1998).
"We must view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Baugh v. Commonwealth, 14 Va. App. 368,
374, 417 S.E.2d 891, 895 (1992).
"'Contempt is defined as an act in disrespect of the court
or its processes, or which obstructs the administration of
justice, or tends to bring the court into disrepute.' 4A
Michie's Jurisprudence Contempt § 2 (Repl. Vol. 1983)." Carter
v. Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7 (1986).
The Supreme Court defined constructive contempt almost a century
ago:
In the 9 Cyc. of Law and Procedure, p. 6, a
constructive contempt is stated to be "an
act done not in the presence of the court,
but at a distance, which tends to belittle,
to degrade, or to obstruct, interrupt,
prevent, or embarrass the administration of
justice."
Barton, in Vol. 2 (2 Ed.), p. 774, of his
Law Practice, is to the same effect.
"Contempt of court is a disobedience to the
court, or an opposing or despising the
authority, justice or dignity thereof."
Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880
(1904). Additionally, "'[i]t has been stated that intent is a
necessary element in criminal contempt, and that no one can be
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punished for a criminal contempt unless the evidence makes it
clear that he intended to commit it.' 17 Am. Jur. 2d Contempt
§ 8 (1964) (emphasis added)." Carter, 2 Va. App. at 397, 345
S.E.2d at 8.
Our decision in Brown controls here. Brown, an attorney,
set a civil jury trial in the Circuit Court for the City of
Norfolk while setting four cases in the Virginia Beach Juvenile
and Domestic Relations District Court for the same day. 26 Va.
App. at 761, 497 S.E.2d at 149. He then appeared approximately
forty minutes late for the cases in Norfolk. Id. We held:
[W]here an attorney schedules multiple
matters in different jurisdictions at the
same time, his assertions of good faith
"[do] not negate the reasonable inference
that he recklessly or willfully failed
[timely] to advise the court of his
conflicting schedule." See Murphy v.
Maryland, 416 A.2d 748, 756 n.11 (Md. Ct.
Spec. App. 1980). Here, appellant's actions
in scheduling multiple matters for trial in
different courts in different jurisdictions
at the same time support the trial court's
finding of "[m]isbehavior in the presence of
the court, or so near thereto as to obstruct
or interrupt the administration of justice."
Id. at 762, 497 S.E.2d at 149.
Here, appellant had a number of criminal matters set in the
Virginia Beach Circuit Court on July 24, 2001. He then set
three criminal matters in the Northampton County Circuit Court
for the same day. 5 While appellant thereafter requested that the
Virginia Beach Commonwealth's Attorney continue those matters,
5
Appellant does not contend Brown, who actually set the
matters with the court, acted without his knowledge or
authorization.
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the Virginia Beach cases were not continued prior to July 24.
Appellant appeared in Virginia Beach at 9:30 a.m. to have the
matters continued and to obtain new trial dates. He also had to
resolve a probation violation matter that he had omitted from
his docket. Appellant, running late in Virginia Beach, failed
to advise the Northampton County Circuit Court of his tardiness,
although he had the means to contact the court. 6 He apparently
did not attempt to contact anyone in Northampton about his
tardiness until more than two hours after his cases were
scheduled to begin.
The evidence was sufficient to convict appellant of
contempt. As in Brown, appellant knowingly created a conflict in
his schedule, setting cases on the same morning in two separate
jurisdictions that were some distance apart. He then failed to
appear on time for his cases in Northampton County. His excuse
that the five or six Virginia Beach cases took longer to resolve
than the half an hour he had expected does not preclude a finding
of contempt of court.
B. Sentencing for Common Law Contempt
Appellant contends Code §§ 18.2-456(1) and 18.2-457 limit
the penalty for contempt to ten days in jail and a maximum fine
of $250. He argues his sentence was inappropriate as it
6
We do not suggest that, if appellant had called the
Northampton County court to advise them of his tardiness, we
would have reached a different conclusion.
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exceeded this limit. While we agree the sentence was more than
allowed by these statutes, we find the statutes did not apply in
this case.
The Supreme Court in Holt v. Commonwealth explained:
The power of the court to punish for
contempt can no longer be challenged. Such
power is inherent in the nature and
constitution of a court. It is a power not
derived from any statute, but arising from
the exercise of all other powers. Without
such power the administration of the law
would be in continual danger of being
thwarted by the lawless. The power to fine
and imprison for contempt is incident to
every court of record.
* * * * * * *
The ingrained principles above recorded had
their origin in the genesis of the court
itself, having been settled long before the
founding of this country. The moment the
courts of the United States were called into
existence and invested with jurisdiction
over any subject, they became possessed of
the power to protect themselves and the
dignity and authority of the court. Ex
parte Robinson, (Ark.) 86 U.S. (19 Wall.)
505, 22 L. Ed. 205.
205 Va. 332, 336-37, 136 S.E.2d 809, 813 (1964), rev'd on other
grounds, 381 U.S. 131 (1965).
Contempt proceedings are categorized as either direct or
indirect.
"[T]he substantial difference between a
direct and a constructive [indirect]
contempt is one of procedure. Where the
contempt is committed in the presence of the
court, it is competent for it to proceed
upon its own knowledge of the facts, and to
punish the offender without further proof,
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and without issue or trial in any form."
(Citations omitted).
"In dealing with indirect contempts -- that
is, such as are committed not in the
presence of the court -- the offender must
be brought before the court by a rule or
some other sufficient process; but the power
of the court to punish is the same in both
cases." [Burdett's Case,] 103 Va. [838,]
845-46, 48 S.E. [878,] 880-81 [(1904)].
Davis v. Commonwealth, 219 Va. 395, 398, 247 S.E.2d 681, 682
(1978). Indirect or constructive contempt charges, therefore,
are not brought summarily, 7 but must proceed under a more formal
procedure than an immediate adjudication by the court. While
Code §§ 18.2-426 and 18.2-457 limit the court's power to sentence
in direct or summary contempt proceedings, these statutes do not
limit the court's power where it exercises its inherent common
law power to punish for indirect contempt.
Here, a show cause was issued for appellant. At the onset
of the contempt hearing, the trial court announced appellant was
charged with indirect contempt and indicated, "This hearing is
not a summary hearing, it's a plenary hearing, that is to say a
full hearing . . . ." The judge further indicated he was not
constrained by Code § 18.2-456. Appellant's counsel responded,
"And so based on [the court's comment,] I would conclude that
there is a difference in that the statute doesn't control."
7
Code §§ 18.2-456 and 18.2-457 limit the use of summary
proceedings and the sentences imposed during these proceedings
to the examples listed in the statute. It does not address
plenary hearings for contempt conducted on the basis of a show
cause or other more formal attachment.
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During final argument, both the Commonwealth's Attorney and
appellant's counsel argued the statute. Nevertheless, the trial
court consistently held the statute did not apply and sentenced
appellant beyond the limits of Code § 18.2-456. The conviction
order also indicated the statute did not apply to these
proceedings.
The trial court did not summarily find appellant in
contempt. Instead, process was issued against appellant for
indirect contempt. Appellant was given an opportunity to obtain
counsel and to prepare his defense. The court held an
evidentiary hearing. As the proceeding was not for summary
contempt, the trial court was not bound by the constraints of
Code § 18.2-456 and acted accordingly.
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We affirm the conviction and sentence for common law
contempt.
Affirmed.
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