Thompson v. State

Cite as 2016 Ark. 383

SUPREME COURT OF ARKANSAS
No. CR-16-207

THEODIS N. THOMPSON, JR. Opinion Delivered November 10, 2016
APPELLANT
APPEAL FROM THE PRAIRIE
V. COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
[NO. CR-2014-25]
STATE OF ARKANSAS
APPELLEE HONORABLE TOM HUGHES, JUDGE

REVERSED AND DISMISSED.

KAREN R. BAKER, Associate Justice

Attorney Theodis N. Thompson, Jr., appeals from an order of the Prairie County

Circuit Court finding him in criminal contempt for his failure to appear at a scheduled

hearing. Pursuant to the circuit court’s order, Thompson served a sentence of twenty-four

hours imprisonment. On appeal, Thompson argues that his right to due process was violated

because he was deprived of proper notice of the criminal-contempt charge. In response, the

State responds that because Thompson has already served his sentence of imprisonment,

Thompson’s appeal is moot and we should dismiss his appeal. We reverse and dismiss.

The facts related to this appeal stem from Thompson’s representation of defendant

Michael Baker on criminal charges in the Prairie County Circuit Court. Baker’s case was

scheduled for a hearing on September 22, 2015. On August 28, 2015, Thompson sent a letter

to the circuit court and indicated that he was unable to attend that September 22, 2015

hearing because he was scheduled to attend a continuing-legal-education course (“CLE”) that
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day. On September 4, 2015, the circuit court sent a letter to Thompson acknowledging

receipt of Thompson’s August 28, 2015 letter. The circuit court’s letter indicated that if

Thompson wished to have the September 22, 2015 hearing continued, he should file a

motion for continuance. On September 11, 2015, Thompson filed a motion for continuance,

but the court never acted on the motion.

On September 22, 2015, neither Thompson nor Baker appeared at the hearing.

Prosecutor Rebecca Reed McCoy called Thompson, and Thompson indicated that he was

attending a CLE and was not coming to court. McCoy and Thompson rescheduled Baker’s

hearing for November 17, 2015. On September 23, 2015, Thompson faxed a letter to the

circuit court to confirm that the hearing was scheduled for November 17, 2015, at 9:00 a.m.

At the conclusion of the September 22, 2015 hearing, the circuit court instructed the

prosecutor to prepare an order to show cause.

On September 23, 2015, the State, by and through Deputy Prosecutor Timothy O.

Isaac, filed its petition to appear and show cause. On September 24, 2015, the circuit court

granted the State’s petition and ordered Thompson to appear and show cause on November

17, 2015, at 9:00 a.m. The order reflected that the notice had been served according to Rule

5 of the Arkansas Rules of Civil Procedure.

On November 17, 2015, Thompson appeared for Baker’s probation-revocation

hearing. The circuit court announced that it would first hear the order to show cause. In

response to the circuit court, Thompson explained that he was there to represent Baker at the

probation-revocation hearing and alleged that he had not received notice of the order to show

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cause. The following colloquy occurred:

THE COURT: I just want to determine if the Order to Show Cause,
which I’m looking at now, which requested that Counsel
be cited to appear in front of this Court to show cause, if
any, why he failed to appear and represent his client,
Michael Baker, in case CR-2014-25, which case was set
for hearing on September 22, 2015. The Court having
examined the docket entries, considered the facts
presented, and reviewed correspondence with the Court
and Theodis M. Thompson, Jr., finds that it should be
and is hereby granted. And it is hereby ordered that you
are to appear at the Courthouse today at 9:00 to show
why you should not be adjudged in contempt of court.
It goes on, service may be had as provided by Rule 5 of
the Arkansas Rules of Civil Procedure. And I don’t see
service.

PROSECUTOR ISSAC: I have a Certificate of Service that said it was placed in
first class mail on September 24, 2015.

THOMPSON: I filed a motion -- Your Honor, I filed a Motion for a
Continuance on this matter. I just was retained on this
and I was assured by court staff that I would be able to
get the continuance. Unfortunately, an Order had not
been presented allowing my Motion for Continuance. I
do believe that the actual Motion that I filed after being
retained on this matter requesting that this matter be
continued unfortunately there wasn’t ever a Motion --
excuse me -- an Order granting that Continuance.

THE COURT: Counsel, you do understand that filing a Motion is not
the same as being an order?

THOMPSON: I realize that, Your Honor. And I understand --

COURT: And if you’re testifying - - or if you’re representing to me
that someone other than I have the power or implied
they had the power to grant a continuance, I would find
that very difficult –

THOMPSON: And, Your Honor, I’m not saying that at all. I’m just

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simply saying, Your Honor, that based on my belief that
the Order will be sent -- and, Your Honor, not looking
back at the file and seeing the Order being presented, it
was my understanding that it was going to be someone --
it was going to be a continuance made, I would have
asked for someone to stand in my stead on that particular
date, Your Honor, had I known that that was not going
to be given. And also to --

THE COURT: Well, Counsel, at this point, the Order has been served.
You are here. I intend to have a hearing on this. We can
do it today. That’s the day it’s scheduled for. Are you
ready to proceed, Mr. Issac?

PROSECUTOR ISSAC: The State is ready to proceed.

THE COURT: And, Mr. Thompson, you’re here and it’s not a matter of
if you’re willing to proceed. We are proceeding.

THOMPSON: Okay.

THE COURT: . . . And, Mr. Thompson, do you plan to testify?

THOMPSON: No, Your Honor.

THE COURT: Very good. And who do you intend to call as a witness?

THOMPSON: And, Your Honor, just to make sure, we’re hearing the
matter on the Order to Show Cause, is that correct?

THE COURT: Yes, sir.

THOMPSON: Okay.

THE COURT: The Order to Show Cause -- you should have a copy of
that Order.

THOMPSON: That’s what I’m saying. I don’t have a copy of that
Order. I mean, I don’t have that.

THE COURT: Well, then there’s going to have to be some presentation
to establish that you have been properly served.

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THOMPSON: I mean, if that’s going to require me to testify as far as the
Order to Show Cause, then yeah, I would like to testify.
But I don’t have a copy of that particular order.
....

THE COURT: Let Mr. Issac respond. Mr. Issac was to serve the Notice.
The Order reflects, that was signed by the Court, that it
may be served in accordance with Rule 5 of the Arkansas
Rules of Civil Procedure. We now have Mr. Thompson
alleging that he was not served in accordance with Rule
5. If he wasn’t well he’ll be re-served. If he was and
there’s proof of that, the Court is going to go forward.

PROSECUTOR ISSAC: Well, the State just asserts that we believe we followed
the Rules of Civil Procedure since it is an already filed
case that it’s part of, that first class mailing is sufficient.

THE COURT: So you sent it by first class mail?

PROSECUTOR ISSAC: I did. And it’s presumed to be served upon depositing
into the mail. So we believe it’s seen served.

THE COURT: Okay. I find that it has been served as far as the Rules of
Procedure are required. And Mr. Thompson appears to
be aware of the facts surrounding the incident. So we’re
going to go ahead and --

THOMPSON: No, Your Honor. I mean, my understanding today was
that we would have our hearing scheduled for my client’s
plea and arraignment regarding his revocation. I don’t
understand the facts on this Order to Show Cause. I was
never given notice of this. I had no knowledge of this.
And standing here before you today saying that, you
know, my Motion for Continuance, which the Court has
record of, although an Order hadn’t been entered, I
wasn’t aware of this matter going forward on an Order to
Show Cause. I don’t believe that I’m in violation of --

THE COURT: That’s what we have trials for. Go forward, Mr. Issac.
And, Mr. Thompson, you may have a seat. Now, Mr.
Isaac, do you have proof of service?

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PROSECUTOR ISSAC: I have my copy of the Certificate of Service.

THE COURT: It’s not been filed with the Court.

PROSECUTOR ISSAC: It was filed on September 24, 2015.

THE COURT: It may show that, but it’s not in the Court file. If it is, it’s
not in the order it should be.

PROSECUTOR ISSAC: If I can approach, you can see my copy.

THE COURT: Yes, sir. Well, this is in the court file. . . .

....

THE COURT: . . . Okay, here we go. I hereby certify that on
September 24, 2015 I deposited a pleading with the
United States Postal Service with first class mail postage
prepared addressed to Theodis M. Thompson, Jr., it gives
the address, and that’s attached to the Petition for Order
to Show Cause. I do see that now.

At the conclusion of the hearing, the circuit court found Thompson in criminal

contempt of court for his failure to appear for the September 22, 2015 hearing and sentenced

him to twenty-four hours imprisonment in the Prairie County Jail. Thompson served his

sentence of imprisonment, and thereafter, filed a motion for new trial, which the circuit court

denied without a hearing. On December 15, 2015, Thompson filed his notice of appeal.

On appeal, Thompson argues that his right to due process was violated because he was

deprived of proper notice of the criminal contempt charge. The standard of review in a case

of criminal contempt is well settled: an appellate court views the record in the light most

favorable to the trial court’s decision and sustains that decision if it is supported by substantial

evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Substantial evidence is

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evidence of a sufficient force and character to compel a conclusion one way or another,

forcing the mind to pass beyond suspicion or conjecture. Id.; Witherspoon v. State, 322 Ark.

376, 909 S.W.2d 314 (1995). Where a person is held in contempt for failure or refusal to

abide by a judge’s order, the reviewing court will not look behind the order to determine

whether it is valid. Conlee, supra.

I. Mootness

As a threshold matter, we must determine whether the issue before us is moot. On

appeal, the State argues that Thompson’s appeal is moot pursuant to our precedent in Swindle

v. State, 373 Ark. 518, 285 S.W.3d 200 (2008), which indicates that an appeal from a finding

of criminal contempt is moot once the sentence has been served. In Swindle, the circuit court

found an attorney in criminal contempt for failing to comply with the court’s standing order

to request a jury trial for his client forty-eight hours before the scheduled trial date. However,

we held that Swindle’s challenges to the circuit court’s order of contempt were moot due to

the fact that Swindle had already served his sentence of confinement. Thompson contends

that Swindle is flawed and asks that the opinion be overruled.

We find Thompson’s position persuasive for the reasons that follow. Arkansas Code

Annotated section 16-91-101(a) states that “any person convicted of a misdemeanor or a

felony by virtue of a trial in any circuit court of this state has the right of appeal to the

Supreme Court.” Further, Rule 1(a) of the Rules of Appellate Procedure–Criminal states that

“any person convicted of a misdemeanor or a felony by virtue of a trial in any circuit court

of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court

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of Arkansas.” Further, we note that Rule 1(c) of the Rules of Appellate Procedure–Criminal

provides that “upon the death of a defendant, the appeal shall not abate. The appeal shall

continue on the relation of a representative party as provided in Ark. R. Civ. P. 25(a).”

Accordingly, an appeal does not abate even upon the death of a defendant.

Here, Thompson was clearly convicted of a misdemeanor because the criminal

contempt statute that he was found guilty of violating states that “punishment for contempt

is a Class C misdemeanor.” Ark. Code Ann. § 16-10-108(b)(1). Because Thompson was

convicted of a misdemeanor, he has the right to appeal to the Supreme Court pursuant to

Arkansas Code Annotated section 16-91-101(a) and Rule 1(a) of the Rules of Appellate

Procedure–Criminal. Stated differently, the mootness doctrine does not bar a direct appeal

from Thompson’s criminal-contempt conviction, despite the fact that Thompson has already

served his sentence. Based on our discussion, we hold that a defendant’s right to a direct

appeal from his or her criminal conviction continues after his service of confinement. Thus,

Swindle is clearly wrong to the extent that it conflicts with our holding that the mootness

doctrine does not bar Thompson’s direct appeal of his criminal contempt conviction.

II. Criminal Contempt

Having established that this appeal is properly before this court, we now turn to the

crux of Thompson’s argument–that he did not receive notice of the September 24, 2015

order to appear and show cause pursuant to Arkansas Code Annotated section 16-10-108.

Our review of section 16-10-108(c), the statute at issue here, requires that we construe

criminal statutes strictly, resolving any doubts in favor of the defendant. James v. Pulaski Cty.

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Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (citing Short v. State, 349 Ark. 492, 79 S.W.3d

313 (2002). “We construe a statute just as it reads, giving the words their ordinary and usually

accepted meaning in common language, and if the language of the statute is plain and

unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules

of statutory interpretation.” Id. (citing Walden v. State, 2014 Ark. 193, at 7–8, 433 S.W.3d

864, 870)).

Although the State asserts and the circuit court found that Rule 5 of the Arkansas

Rules of Civil Procedure had been complied with, we have held that the rules of civil

procedure do not apply in a criminal contempt proceeding. Valley v. Pulaski Cty. Circuit

Court, 2014 Ark. 112, 431 S.W.3d 916 (citing Ark. Dep’t of Human Servs. v. R.P., 333 Ark.

516, 970 S.W.2d 225 (1998). In Valley, we reaffirmed our holding in R.P. and explained that

the governing provision which sets forth the court’s power to punish for criminal contempt

is Arkansas Code Annotated section 16-10-108. Section 16-10-108(c) provides that

“contempts committed in the immediate view and presence of the court may be punished

summarily. In other cases, the party charged shall be notified of the accusation and shall have

a reasonable time to make his defense.” The purpose of a criminal-contempt proceeding is

that it is brought to preserve the power and vindicate the dignity of the court and to punish

for disobedience of its order. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

Criminal penalties may not be imposed on an alleged contemnor who has not been afforded

the protections that the Constitution requires of criminal proceedings. Id. at 140, 752 S.W.2d

at 277. The Due Process Clause, as applied in criminal proceedings, requires that an alleged

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contemnor be notified that a charge of contempt is pending against him and be informed of

the specific nature of that charge. Id.

Based on section 16-10-108(c) and Valley, Thompson had to be notified of the

accusation of contempt and be afforded a reasonable time to make his defense. The circuit

court’s factual finding that the petition for order to show cause was deposited “with the

United States Postal Service with first class mail postage” was not sufficient to provide

Thompson with notice that he was accused of criminal contempt for his failure to appear at

the September 22, 2015 hearing. Further, the record fails to demonstrate that Thompson was

provided with notice of the order to appear and show cause. We hold that notice in

compliance with our constitution was required, and the State failed to establish that

Thompson received notice. Therefore, we reverse and dismiss the appeal.1

Reversed and dismissed.2

1
Because we reverse and dismiss on this point, we do not reach Thompson’s argument
regarding the circuit court and prosecutor’s conflicts of interest.
2
Finally, although the dissent questions the majority’s reasoning to reverse and dismiss
this matter as opposed to reverse and remand the matter, the majority’s position is based on
the law as applied to the facts which are clearly expressed in our opinion and need no
hypothesizing. Further, the dissent’s position that the majority elected to reverse and dismiss
the matter because we are “concerned with the possibility that Thompson would be found
guilty a second time on remand” is nonsensical. To remand this matter to the circuit court
for Thompson to be “found guilty a second time” would necessarily create a double jeopardy
dilemma. Halpaine v. State, 2011 Ark. 517, 5, 385 S.W.3d 838, 841 (2011)(“Constitutional
protections, including the prohibition against double jeopardy, apply to nonsummary
criminal-contempt prosecutions. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125
L.Ed.2d 556 (1993) (holding that double jeopardy precluded prosecution for an offense after
the defendant had been held in criminal contempt for said offense); see also Fitzhugh v. State,
296 Ark. 137, 752 S.W.2d 275 (applying the protections afforded by the Due Process Clause
to criminal-contempt proceedings).” Finally, it is unnecessary to remand Thompson’s appeal

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BRILL, C.J., and DANIELSON, J., concur.

Wood and WYNNE, JJ., dissent.

PAUL E. DANIELSON, Justice, concurring. I agree with the majority’s holding that

appellant Theodis N. Thompson, Jr., was not afforded sufficient notice of the circuit court’s

order to appear and show cause. In my view, Arkansas Code Annotated section 16-10-108(c)

(Repl. 2010), and our case law interpreting it, are unclear as to the notice required in cases

of criminal contempt. Therefore, I would refer this matter to the appropriate rules committee

for review.

In any event, the record in this case is completely devoid of any evidence that

Thompson was notified. It is important to note that, while the State purportedly mailed the

petition for order to appear and show cause to Thompson, the record does not reflect that the

order itself was ever mailed to him. The order to appear and show cause contains no certificate

of service. And, while the circuit court looked over the case file and read a certificate of

service aloud in open court, concluding that it constituted proof of service, that certificate of

service was attached to the petition, not the order. Thus, even assuming that first-class mail

would have been a sufficient method of notifying Thompson, notice was simply not given.

The importance of notice of the order itself cannot be overstated; it is the document that

commands an accused contemnor to appear and sets forth the date, time, and location for

appearance. From my review of the record, the only reason Thompson knew to appear at

the November 17, 2015 hearing was that his client’s revocation hearing was scheduled for that

to review the due-process claim with regard to notice, as discussed above, based on the
record before us, there was no notice.
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day. In sum, while this court has been less than clear as to what type of notice is required, we

have been resolute in holding that it is a due-process requirement:

[The] distinctions between civil and criminal contempt lead up to the
fundamental proposition that criminal penalties may not be imposed on an alleged
contemner who has not been afforded the protections that the Constitution requires
of criminal proceedings. [Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988).] The Due
Process Clause, as applied in criminal proceedings, requires that an alleged contemner
be notified that a charge of contempt is pending against him and be informed of the
specific nature of that charge. Id.

Fitzhugh v. State, 296 Ark. 137, 140, 752 S.W.2d 275, 277 (1988).

Additionally, my analysis differs from the majority’s on the subject of mootness. I

would hold that an exception to the mootness doctrine applies because the issue involved here

is capable of repetition but evades review. See, e.g., Delancy v. State, 356 Ark. 259, 151

S.W.3d 301 (2004).

BRILL, C.J., joins in this concurrence.

ROBIN F. WYNNE, Justice, dissenting. Because I believe that Thompson’s appeal

has been rendered moot by his having served the punishment imposed, I would dismiss the

appeal. Accordingly, I respectfully dissent.

An examination of the majority opinion will reveal why the better course would be

to dismiss Thompson’s appeal. Assuming the majority is correct to reverse on the merits, it

has applied the wrong disposition to the case. The majority opinion reverses and dismisses

based on the determination that a due-process violation resulted from Thompson’s failure to

receive notice of the contempt hearing. The proper disposition in the event of such a

violation is to reverse and remand, not reverse and dismiss. See, Fitzhugh v. State, 296 Ark.

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137, 752 S.W.2d 275 (1988) (reversing and remanding following a determination that the

failure to notify an attorney that a charge of contempt was pending against him and to inform

him of the specific nature of the charge violated the attorney’s right to due process). Even

Thompson realizes this. In his argument he requests that the court reverse and remand for

the due-process violation he asserts. The majority has given him relief he did not request as

part of his due-process argument.

Why, then, has the majority chosen to reverse and dismiss, as opposed to reversing and

remanding? I posit that there are two reasons for this. The first is that dismissing as opposed

to remanding allows the majority to sidestep the inconvenient fact that he has already served

his sentence for contempt. The fact that the majority feels compelled to overlook this is all

the more reason why this is not the case in which this court should reach a different

conclusion regarding the applicability of the mootness doctrine than it did in Swindle v. State,

373 Ark. 518, 285 S.W.3d 200 (2008). The second reason, which follows from the first, is

that the majority is concerned with the possibility that Thompson would be found guilty a

second time on remand, which would create the problematic issue of what to do about

punishment if that occurs.1 Either Thompson has already served his full punishment, in which

case the damage is done, or Thompson would be subjected to additional punishment, making

his victory on appeal a Pyrrhic one of epic proportions. The majority is willing to confuse

1
The majority states that it is dismissing instead of remanding because of a potential
double jeopardy concern. Of course reversing and remanding potentially creates a double-
jeopardy problem because Thompson has already fully served his punishment. This is precisely
why this court should dismiss the appeal as moot.
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our precedent regarding due-process violations in an effort to avoid the potentially unpleasant

effects of its decision.

My point in highlighting these issues is that, while I agree that the decision in Swindle

is flawed, it is precedent of this court. Thompson took no steps, such as objecting following

the decision, asking for a stay pending appeal, asking for adequate time to file a writ with this

court, or making any attempt to file a writ with this court, in order to avoid having his appeal

become moot. The facts and arguments presented here are insufficient to warrant reaching

a different result here than was reached in Swindle. I have little doubt there may exist in the

future a case that requires us to revisit our decision in Swindle. This is not that case.

For these reasons, I respectfully dissent.

WOOD, J., joins.

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.