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Dominic Antoine Tilford v. Commonwealth of Kentucky

Court: Court of Appeals of Kentucky
Date filed: 2021-06-03
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                     RENDERED: JUNE 4, 2021; 10:00 A.M.
                          NOT TO BE PUBLISHED

                 Commonwealth of Kentucky
                           Court of Appeals

                              NO. 2020-CA-0835-MR

DOMINIC TILFORD                                                       APPELLANT


                 APPEAL FROM JEFFERSON CIRCUIT COURT
v.                HONORABLE AUDRA J. ECKERLE, JUDGE
                        ACTION NO. 20-CR-000636


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                                    OPINION
                                   AFFIRMING

                                   ** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.

DIXON, JUDGE: Dominic Tilford appeals from the order holding him in

contempt entered on June 18, 2020, by the Jefferson Circuit Court. Following a

careful review of the record, briefs, and law, we affirm.

                FACTS AND PROCEDURAL BACKGROUND

             Tilford was indicted on two counts of first-degree strangulation,

intimidating a participant in the legal process, theft by unlawful taking over $500
but less than $10,000, first-degree unlawful imprisonment, fourth-degree assault,

second-degree fleeing or evading police, second-degree burglary, retaliating

against a participant in the legal process, violation of conditions of release, theft by

unlawful taking under $500, and being a first-degree persistent felony offender.

His bond was set at $25,000 full cash, which he posted by way of a $50,000

property bond. A condition of his bond was to have no contact with the victim.

After Tilford was indicted by a grand jury for the above-mentioned charges, he

incurred new charges for second-degree burglary, retaliating against a participant

in the legal process, theft by unlawful taking under $500, and violation of

conditions of release. Consequently, a warrant for arrest on indictment was issued,

setting his bond at $100,000 full cash.

             On April 21, 2020, the Commonwealth filed a combined, renewed

motion to hold Tilford in contempt and to increase his bond, alleging he continued

to contact the victim from jail. In its motion, the Commonwealth informed the trial

court:

             [f]rom March 22nd and April 21st, the Defendant has
             called the victim 244 times with 80 of the calls being
             complete. He has spoken with her for a total of 1177.35
             minutes (19.62 hours). The average duration of the 80
             calls is 883 seconds (14.72 minutes). Most of the calls
             are made with other inmate accounts to conceal his illicit
             contact.




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(footnotes omitted). The motion was noticed to be heard at the convenience of the

court due to the COVID-19 pandemic. On May 29, 2020, the trial court entered an

order setting the hearing on the motion for contempt and increased bond for June

10, 2020. At the hearing, various motions were heard, including a motion to

dismiss previously filed by Tilford. When the trial court addressed the motion to

hold Tilford in contempt and increase his bond, Tilford objected, stating he did not

receive notice that the motion was to be heard that day. The trial court overruled

his objection and proceeded with the hearing. By order entered June 18, 2020, the

trial court granted the motion to hold Tilford in contempt and increased his bond to

$200,000 cash due to his continued violations of the nonfinancial conditions of his

bond and direct court orders. This appeal followed.1

                              STANDARD OF REVIEW

              “We review the trial court’s exercise of its contempt powers for abuse

of discretion, Lewis [v. Lewis], 875 S.W.2d [862,] 864 [(Ky. 1993)], but we apply

the clear error standard to the underlying findings of fact.” Kentucky Cabinet for

Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citing Blakeman

v. Schneider, 864 S.W.2d 903 (Ky. 1993)). “The test for abuse of discretion is




1
  Another panel of our Court addressed the appeal taken from the rulings on the motion to
increase bond. See Dominic Tilford v. Commonwealth of Kentucky, Case No. 2020-CA-0841-
ME, September 8, 2020, order vacating and remanding. That appeal pertained to a bail issue and
proceeded under Kentucky Rules of Criminal Procedure (RCr) 4.43 as an expedited appeal.

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whether the trial [court’s] decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999) (citations omitted).

                                     ANALYSIS

              On appeal, Tilford argues the hearing on the contempt motion was

held without notice to him, and the trial court excluded his presence while allowing

the Commonwealth to appear in person and silenced his counsel during much of

the hearing. Tilford requests our Court vacate the trial court’s order holding him in

contempt and remand the motion to the trial court to hold a hearing to comport

with due process of law.

              “An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.” Mullane v. Central

Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865

(1950). To prepare meaningfully for a hearing, an offender must receive notice of

the time, place, and nature of the hearing. Jones v. Bailey, 576 S.W.3d 128, 150

(Ky. 2019).

              In this case, it does appear Tilford and/or his counsel received notice

the contempt motion was to be heard on June 10, 2020. Due to altered court


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operations during the COVID-19 pandemic, the motion was noticed to be heard at

the convenience of the court. However, on April 29, 2020, the trial judge signed

an order setting the hearing for June 10, 2020. While the order was stamped as

entered by the circuit court clerk on May 29, 2020, the court’s June 18, 2020, order

states the order does not appear to have been entered by the clerk. Nevertheless,

and even though the order does not contain a distribution list, the case history

verifies distribution of the order setting the motion for hearing by the clerk, stating

it was sent to all counsel of record and parties not represented by counsel. “There

is always a presumption that a communication that was properly stamped,

addressed and deposited in the mail was received by the addressee. Once the fact

of address, stamp and deposit is proven, the burden shifts to the addressee to prove

that he has never received the letter.” Haven Point Enters., Inc. v. United Kentucky

Bank, Inc., 690 S.W.2d 393, 395 (Ky. 1985) (citation omitted). Accordingly, it

appears notice was provided to Tilford that the contempt motion would be heard on

June 10, 2020. Thus, a new hearing is not warranted on the grounds of insufficient

notice.

             Next, Tilford argues he was not afforded due process because of his

perceived imbalance of appearing remotely while the Commonwealth appeared in

person. The trial court specifically noted the only reason the Commonwealth

appeared in person was to play telephone calls into the record for the court. As we


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previously noted, ordinary court proceedings were altered at the time of the hearing

due to the COVID-19 pandemic. Pursuant to the Supreme Court of Kentucky’s

Administrative Order (“AO”) 2020-39, “beginning June 1, 2020[,] . . . Courts shall

resume hearing civil and criminal matters using available telephonic and video

technology to conduct all proceedings remotely.” It further mandated, “All parties

are expected to use available technology to further the resolution of all cases.” Id.

The AO also included certain exceptions allowing limited in-person proceedings.

Given these circumstances, we cannot say there was any imbalance in the

proceeding or that the trial court clearly erred or abused its discretion in allowing

the contempt hearing to proceed in the manner it was conducted.

             Moreover, Tilford expressly waived his right to proceed in person.

Although there is little published case law on this exact issue, the court in United

States v. Reynolds, 44 M.J. 726, 729-30 (A. Ct. Crim. App. 1996), aff’d, 49 M.J.

260 (C.A.A.F. 1998), observed:

             Although we find that the military judge in this case
             erred by utilizing the telephonic Article 39(a) session, the
             appellant is entitled to relief only if the error “materially
             prejudiced [his] substantial rights.” In this case the
             appellant consented to the procedure and attempted
             to waive the statutory and regulatory requirements
             concerning the presence of the parties. In his original
             filing before this court, the appellant did not attack the
             speakerphone procedure as error or allege that any of his
             substantial rights were adversely affected. The
             procedures used in this case were correct in all material
             aspects except that they were conducted over a

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             speakerphone rather than in person. The appellant would
             receive an undeserved windfall if we were to set aside the
             findings and sentence because of a procedure that was
             used with his and his counsel’s consent. This court-
             martial involved several preliminary sessions conducted
             pursuant to Article 39(a), [Uniform Code of Military
             Justice]. When viewed as a whole, these procedures did
             not depart from the standards of fairness in such a way as
             to undermine public confidence in the military justice
             system. Thus, we are satisfied, on the facts of this case,
             that the appellant suffered no prejudice.

(Emphasis added) (footnote omitted).

             Similar notions of fairness are applicable to the case herein. Both

Tilford and the Commonwealth called, questioned, and cross-examined witnesses

who appeared telephonically. Tilford does not argue the hearing would have

proceeded any differently had it been held in person. Consequently, Tilford has

failed to demonstrate any prejudice from the mostly remote hearing—one that was

essentially being held telephonically pursuant to the AO in effect at that time. Like

Reynolds, on review, we cannot say the procedures used by the trial court at this

hearing departed from the standards of fairness in such a way as to undermine

public confidence in our justice system. Accordingly, we find neither clear error

nor an abuse of discretion in conducting the contempt hearing in this manner.

             Tilford’s final argument is that the trial court erred in muting his

counsel on multiple occasions during the hearing. It is undisputed the trial court

muted Tilford’s counsel for several relatively brief periods of time throughout the


                                         -7-
proceeding. However, after each of those occasions, Tilford’s counsel was given

the opportunity to continue speaking to offer additional objections, questions,

and/or comments. It is this key difference that distinguishes this case from

Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136 (Ky. App. 2009). The

Delahanty Court held, “without the right to object to questions asked during an

adversarial proceeding, the county attorney cannot be an effective advocate for the

citizens. Laboring under the intimidation of contempt, the county attorney’s role is

reduced to that of an idle bystander and his voice as an advocate muted.” Id. at

143.

             Despite the fact that Tilford’s counsel was literally muted on several

occasions, the trial court still provided his counsel ample opportunity to zealously

and effectively represent Tilford. To that end, Tilford has proffered no objections,

questions, or comments that would have been made that were otherwise unable to

be made due to his counsel being muted. Accordingly, Tilford has failed to

demonstrate that his counsel was unable to make an appropriate record or that he

was prejudiced in any way by the trial court’s muting of his counsel.

             Nonetheless, Tilford takes issue with the trial court’s references to his

counsel “screaming” in its order. Any mischaracterization of defense counsel’s

tone or speaking volume by the trial court in its order amounts to no more than

harmless error. It is well-established, a single error alone does not necessarily


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require reversal, and our Court is bound to review the error for possible

harmlessness. CR2 61.01 provides:

                No error in either the admission or the exclusion of
                evidence and no error or defect in any ruling or order or
                in anything done or omitted by the court or by any of the
                parties is ground for granting a new trial or for setting
                aside a verdict or for vacating, modifying, or otherwise
                disturbing a judgment or order, unless refusal to take
                such action appears to the court inconsistent with
                substantial justice. The court at every stage of the
                proceeding must disregard any error or defect in the
                proceeding which does not affect the substantial rights of
                the parties.

Tilford has failed to demonstrate any error of the trial court affecting his

substantial rights; thus, we affirm.

                                         CONCLUSION

                Therefore, and for the foregoing reasons, the order of the Jefferson

Circuit Court is AFFIRMED.



         CLAYTON, CHIEF JUDGE, AND MAZE, JUDGE, CONCUR IN
RESULT ONLY.




2
    Kentucky Rules of Civil Procedure.

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BRIEFS FOR APPELLANT:     BRIEF FOR APPELLEES:

Rob Eggert                Daniel Cameron
Louisville, Kentucky      Attorney General of Kentucky

                          Jason B. Moore
                          Special Assistant Attorney General
                          Louisville, Kentucky




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