I would reach the same result by sustaining the first assigned error, rather than ruling that the trial court lacked jurisdiction over the underlying case. In my view, the trial court did have jurisdiction, but the record does not support a contempt conviction.
The attorney's allegedly contumacious conduct apparently consisted of one or more of the following acts:
(a) his failure to appear at a scheduled hearing before another judge,
(b) his participation in a one-half hour confidential discussion with his client about her prospective guilty plea, which led to her oral guilty plea,
(c) his subsequent participation in a confidential discussion with his client when the court then requested that her plea be written, which led to her withdrawal of her oral guilty plea.
The record provides no support for a finding that the latter two acts constituted contempt. Manifestly, the lawyer had a duty to discuss a prospective guilty plea with his client for a reasonable time. Nothing in this record demonstrates that those discussions extended for an unreasonable time, or that the attorney consciously delayed proceedings by continuing those discussions.
Thus, only the first contempt charge could justify an adverse finding. An attorney's failure to appear at a scheduled hearing constitutes indirect contempt, if the attorney had notice and lacked justification for his or her absence. State v. Rose (Oct. 19, 1978), Cuyahoga App. No. 37767, unreported; cf. Weiland v.Indus. Comm. (1956), 166 Ohio St. 62, 1 O.O.2d 198, 139 N.E.2d 36 (contempt for attorney's tardiness); State v. Lewis (Mar. 25, 1982), Cuyahoga App. No. 43896, unreported (same). The court conducted the entirety of its hearing on this contempt charge informally, in its chambers, and off the record. After finding the attorney guilty of contempt, the court sentenced him to a fine and five days' imprisonment, with the jail term suspended.
It appears that no sworn testimony was received, and the court denied the attorney's request for a continuance to obtain a court reporter. Criminal contempt must be shown by proof beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 18 O.O.3d 446, 416 N.E.2d 610; Bd. of Edn. v.Hamilton Classroom Teachers Assn. (1982), 5 Ohio App.3d 51, 5 OBR 146, 449 N.E.2d 26. Like any other criminal conviction, a conviction for indirect contempt cannot result from an informal discussion without sworn testimony. Cf. Cleveland Heights v.Tsuji (Apr. 12, 1984), Cuyahoga App. No. 47337, unreported (criminal conviction for illegal parking improper without sworn testimony).
Additionally, the court apparently accepted as accurate the attorney's informal explanation of his conduct. By his explanation, the attorney was engaged in a common pleas court trial when he failed to appear at the scheduled municipal court hearing. The municipal court might well abuse its discretion by denying a proper motion for a continuance in those circumstances.Meinhard Commercial Corp. v. Spoke Wheel, Inc. (1977), 52 Ohio App.2d 198, 6 O.O.3d 180, 368 N.E.2d 1275. However, the counsel facing such a conflict must seek the continuance seasonably when he learns it has developed. Cf. Alex N. Sill Co. v. Fazio (1981),2 Ohio App.3d 65, 2 OBR 72, 440 N.E.2d 807.
In this case, the attorney reportedly expected that the common pleas court trial would conclude before the scheduled time for the municipal court hearing. When the common pleas court trial extended to create a conflict, the attorney directed his secretary to telephone the municipal court to request a continuance. The court did not deny that it received the secretary's call. *Page 8 Rather, the court found the attorney in contempt for (a) failing to make the call himself, (b) failing to seek a continuance in the common pleas proceeding, or (c) failing to cause his associate to appear in his place.
Any of those acts might well have been salutary, but the attorney's conduct did not demonstrate disrespect or a contumacious disruption of judicial proceedings. Since the anticipated hearing was for a guilty plea, no one other than the judge suffered any inconvenience by the requested continuance. There was no showing that the attorney consciously or deliberately caused that inconvenience. The court would have suffered the same inconvenience if the attorney had made the telephone call himself. There was no demonstration that the common pleas court would have afforded a continuance, or that the attorney's associate was available to replace him. Hence, there was no basis for a finding of indirect criminal contempt.
In my view, the Garfield Heights Municipal Court had jurisdiction over the underlying criminal case. Consequently, it had jurisdiction to punish the attorney, if he contumaciously disrupted proceedings in that case. Voluntary recusal by both judges in the Bedford Municipal Court had the same legal effect as unopposed affidavits of prejudice regarding their service. Cf.Cleveland v. Willis (M.C. 1980), 63 Ohio Misc. 40, 43, 17 O.O.3d 385, 387-388, 410 N.E.2d 823, 826; State, ex rel. Sowell, v.Lovinger (May 3, 1984), Cuyahoga App. No. 45529, unreported, at 8. Consequently, the Chief Justice of the Cuyahoga County Common Pleas Court then had authority to "designate another magistrate of the * * * county" who should "proceed to try such cause. * * *" R.C. 2937.20; State, ex rel. Sowell, v. Lovinger, supra.
Indeed, even if the Garfield Heights Municipal Court lacked jurisdiction over the underlying criminal case, the attorney involved here never challenged that jurisdiction. That attorney was subject to punishment for contempt by a court with colorable jurisdiction which he acknowledged and accepted. Cf. EasternAssociated Coal Corp. v. Doe (W.Va. 1975), 220 S.E.2d 672, 679. A contrary rule would permit a lawyer to disrupt judicial proceedings contumaciously, if he later finds some reason to challenge the court's jurisdiction. *Page 9
APPENDIX GARFIELD HEIGHTS MUNICIPAL COURT Cuyahoga County, Ohio
City of Bedford, Plaintiff Case nos. 84-1569 thru 84-1573 vs. Vickie Lacey, FINDING AND OPINION Defendant
These matters came on for hearing this 26th day of June, 1984 pursuant to order and notice served upon the defendant, Vickie Lacey, and her attorney, Richard Agopian.
Whereupon attorney Richard Agopian requested of the Court's Bailiff that he be heard in chambers. This writer advised attorney Agopian that the contempt hearing should be heard after the plea of the defendant was accepted. A partial hearing of attorney Agopian's contempt cause was then had in chambers at attorney Agopian's request.
Attorney Agopian related that although he requested the cases be specially set on June 21, 1984 at 8:45 A.M. before Judge Andrew P. Slivka for plea and sentencing by defendant, Vickie Lacey, he was unable to be present due to being engaged in civil trial in Judge McMonagle's room. (This being the reason for a prior continuance by attorney Agopian from June 19, 1984 to June 21, 1984). That his secretary called this Court for a continuance on June 21, 1984. This writer advised attorney Agopian this was unusual, as customarily the attorney calls directly from the court room wherein he is engaged and has the Judge confirms these facts and sets a mutually agreeable alternate schedule for both judges. Further, this writer advised attorney Agopian that if attorney Agopian had to return on June 22, 1984 for charges to the jury that he could have asked Judge McMonagle for an hour delay inorder to conclude these long delayed criminal matters. Attorney Agopian admitted he never sought such a short delay from Judge McMonagle, nor advised Judge McMonagle of this specially set hearing. Nor could attorney Agopian substantiate why he did not call the Court directly. It was suggested by this writer that attorney Agopian's associate, attorney Jurczenko, could have appeared at the within criminal matter on June 21, 1984.
This writer thereupon advised attorney Agopian that he certainly had delayed the administration of justice in the within cause, but would hear out his client, Vickie Lacey, on her contempt complaint after her plea was formally accepted in open court in her criminal matters.
Attorney Agopian then requested a continuance to obtain a court reporter. The Court advised attorney Agopian that this *Page 10 matter was set at 2:00 P.M. and that he had already been partially heard in chambers at this time. Further, another delay would add insult to injury as the criminal cases originated in September of 1983.
Attorney Agopian thereupon requested this writer to advise him as to whether jail would be imposed upon defendant. Attorney Agopian was advised that the Court had just received the file from Judge Andrew P. Slivka one-half hour prior to this hearing. Further, any sentence herein would be made in open court according to law. This would necessitate an acceptance of the plea today and establishing a sentencing date so that both sides could submit pre-sentencing reports.
The hearing then adjourned to open court to accept defendant's plea and to complete the contempt hearings.
After a one-half-hour discussion between attorney Agopian and his client, Vickie Lacey, the parties were ordered into Court by the Bailiff. Whereupon the Court formally advised the defendant, Vickie Lacey, of her rights according to law and accepted her oral plea of guilty. As is procedural in the Garfield Heights Municipal Court, a written plea was requested of the defendant. Attorney Agopian and defendant, Vickie Lacey, returned to the trial table to execute said statement. At the trial table the court advised the defendant to read the statement as a discussion was being held between attorney Agopian and the defendant. However, attorney Agopian continued to talk to defendant. Whereupon, the defendant and her attorney were called to return to the bench to answer any questions defendant might have. Upon returning, attorney Agopian advised the Court that the defendant chose to maintain her plea of not guilty. Accordingly, the Court withdrew said guilty plea and advised the parties it would set a trial date. Further, the Court advised that is would now continue hearing the contempt complaints.
Defendant, Vickie Lacey, then advised the Court that she was present on June 21, 1984 as ordered. That she called attorney Agopian from Court that morning and his secretary advised her attorney Agopian would be there about 10:00 A.M. Defendant waited until approximately 11:00 A.M. and then left after a discussion with the Court's Referee, Jack E. Monnin.
Attorney Agopian then sought to file instanter a handwritten "Affidavit of Prejudice", which he prepared as defendant Lacey spoke. Attorney Agopian was advised that said "Affidavit of Prejudice" was not timely filed and overruled. Further, that his actions on this date, together with prior delays, would lead one to conclude said actions were intentional to delay the administration of justice herein.
Accordingly, attorney Agopian was found in contempt and ordered to pay a fine of $250.00 and five (5) days confinement. Said five (5) days suspended. Defendant Lacey was found not *Page 11 guilty and advised her other criminal cases would be set for trial as soon as she was medically able, said defendant Lacey being in the final stages of pregnancy.
Attorney Agopian requests a Stay of Execution and requested a bond be set. Without passing upon the merits of said appeal bond, the Court set a $500.00 cash bond.
KENNETH R. STRALKA Judge