Robinson v. Commonwealth

                    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.


                               - 2 -
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.
                                - 3 -
       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.

                                  - 4 -
     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.
                             - 5 -
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




                               - 6 -
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.
                             - 7 -
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.

                               - 8 -
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,
                                   - 9 -
           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.

                              - 10 -
     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.




                              - 11 -
     We affirm the conviction and sentence for common law

contempt.

                                                        Affirmed.




                             - 12 -