Dorsey v. State

• Decision Date: 14 October 1999
• Docket Number: No. 112 | 113
• Citation: 356 Md. 324,739 A.2d 41
• Parties: Paul Alva DORSEY v. STATE of Maryland. Lawrence L. Craft v. STATE of Maryland.
• Court: Maryland Court of Appeals

739 A.2d 41

356 Md. 324

Paul Alva DORSEY v. STATE of Maryland.

Lawrence L. Craft v. STATE of Maryland.

Nos. , Sept. Term, 1997.

Court of Appeals of Maryland.

October 14, 1999.

George E. Burns, Jr., Julia Doyle Bernhardt, Asst. Public Defenders (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Cathy A. Dryden, Angela M. Eaves, Asst. Attys. Gen. (J. Joseph Curran, Atty. Gen., on brief), Baltimore, for respondent. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW,¹ RAKER, WILNER and CATHELL, JJ.

ELDRIDGE, Judge.

We granted petitions for writs of certiorari in these two cases primarily to decide whether, under Maryland law, a defendant in a circuit court constructive criminal contempt case has a right to a jury trial regardless of the sentence which is ultimately imposed by the court. Additional issues relating to the constructive criminal contempt prosecutions are also presented by the petitioners.

I.

Since this opinion deals with two entirely separate cases, we shall set forth the relevant facts of each case in turn.

A. Dorsey v. State

The Circuit Court for Cecil County in March 1994 ordered the petitioner, Paul Alva Dorsey, to pay child support in the amount of $63.00 per week. A new order was entered by the circuit court in August 1995, providing that Dorsey must pay child support of $66.00 per week beginning August 21, 1995.

In late July 1997, a petition was filed in the Circuit Court for Cecil County entitled "Petition For Civil/Criminal Contempt" and captioned "State of Maryland Or Katrina Lee Dorsey, Plaintiff vs. Paul Dorsey, Defendant." The petition had both a "civil" number and a different "criminal" number. Paragraph one of the petition stated that the "Cecil County Child Support Enforcement records indicate that Paul Dorsey has not complied with the support order and/or decree, a copy of which is annexed hereto and made a part hereof in the above captioned case, and is in arrears in the amount of $6,609.34 as of 7/28/97."²

Paragraph two of the petition consisted of two subparagraphs as follows:

"(2) [] (Criminal) A. It is alleged herein that the aforesaid DEFENDANT has intentionally, unlawfully, knowingly, and willfully and in bad faith, with the intent to frustrate the aforesaid Court Order and/or Decree and to defraud and to deprive the party or parties entitled to support under said order and/or decree by unlawfully failing to pay the aforesaid arrearages during the aforesaid period.

"[ ] (Civil) B. It is alleged herein that the aforesaid DEFENDANT has intentionally and unlawfully failed to pay the aforesaid arrearages during the aforesaid period."

Neither box was checked or otherwise marked. Paragraph three of the petition stated:

"(3) The maximum penalty to be imposed in this cause shall not exceed 179 days or_______."

Nothing was written into paragraph three's blank space. The petition went on, inter alia, to advise the defendant of the right to counsel and the right, if indigent, to be represented by the Public Defender's Office. The petition was signed by "Sharon Black, CSE Agent" and "E. D.E. Rollins, Jr., Judge."³

Paul Dorsey appeared before the circuit court on July 29, 1997, without an attorney. He stated that he wanted to be represented by an attorney, and the court postponed the case until August 20, 1997.

When the case was called for trial on August 20, 1997, the assistant public defender representing Dorsey initially asked if the action was a criminal prosecution or if it was a civil case. The following colloquy occurred:

"[DEFENSE COUNSEL]: Your Honor, before we take any testimony, are we here for criminal or civil contempt?

THE COURT: Both.

[DEFENSE COUNSEL]: We are here for both?

THE COURT: They are all charged both now.

[DEFENSE COUNSEL]: When did that start?

THE COURT: A while ago. I don't know, six months ago.

[DEFENSE COUNSEL]: Because apparently—

THE COURT: What do you have?

[DEFENSE COUNSEL]: Well, I have a form that doesn't indicate either one, first of all.

* * *

[DEFENSE COUNSEL]: Today we are here for both?

THE COURT: Let me back up. We are here on civil contempt, which can be converted to criminal contempt.

[DEFENSE COUNSEL]: I understand that. My client needs to know what he is facing.

THE COURT: He is facing 179 days, and we could convert this to criminal."

The only witness for the plaintiff/prosecution was Sharon Black of the Cecil County Bureau of Child Support Enforcement. Her entire direct testimony at the "civil" phase of the trial was as follows:

"THE COURT: What's the order, Ms. Black?

MS. BLACK: The order is for $66 a week. The arrears are $6807.34. The last date of payment was March 26th of `96, and it was for $1,837.66.

THE COURT: Was that—

MS. BLACK: It came from another state, so I imagine it was probably income tax [refund] money.

THE COURT: Any questions you have of Ms. Black?

[DEFENSE COUNSEL]: Yes."

Upon cross-examination, Sharon Black stated that the defendant was working at the "Food Bank of Delaware" in August 1995, that there was a wage attachment for support "for $82.50, $66 current and $16.50 on the arrears" in September 1995, and that he stopped working for the "Food Bank" on January 30, 1996, and that she had no information as to why he stopped working then. She also testified that she had no information about any employment since that time, and that she did not know "whether he is capable of working or not capable of working."

The defendant Dorsey testified that he was not then employed, that he had been incarcerated at the Cecil County Detention Center since June 10, 1997, and that he was not eligible for work release because there were criminal charges pending against him. Dorsey testified that his last "full time" employment was for two months "of last year" for the Allen Trucking Company in Virginia, that he cleaned out trailers for the company, and that this employment ceased when "the company folded."

Dorsey further testified, and Sharon Black confirmed, that his last support payment was in February 1996 when "payment of $165.00 through a wage attachment" was made, that he was then working as a driver for the "Blood Bank of Delaware," and that this employment in Delaware terminated when his driver's license was suspended. He stated that his only other employment over the past year was that he "worked at Wendy's for a couple of weeks." Dorsey further testified that, during the remainder of the time period between the initial support order and the August 20, 1997, trial, he was either incarcerated in Delaware or Maryland or, when not incarcerated, he was unable to find work.

After the above-summarized testimony, the following colloquy occurred:

"THE COURT: What kind of support did you have to pay at Wendy's?

THE DEFENDANT: None. I had to take care of my five kids. Not that much money at Wendy's.

THE COURT: What about the kid you have here?

THE DEFENDANT: I understand, sir.

THE COURT: What did you do from August of `96 until June of `97? That's 10 months.

THE DEFENDANT: Nothing basically.

THE COURT: Nothing?

THE DEFENDANT: No.

THE COURT: What kind of money do you have on you?

THE DEFENDANT: I have none.

THE COURT: I am going to convert this. I think there is probable cause to believe, especially for 10 months doing nothing, I am going to convert this to a criminal case.

[DEFENSE COUNSEL]: Judge, before you do that, have they—has it been proven he has a present ability to pay today? That's what civil contempt is about?

THE COURT: I am going to dismiss the civil contempt and convert it to a criminal case.

[DEFENSE COUNSEL]: When are we trying that?

THE COURT: I will try it today on a 179 day hold."

Dorsey's attorney then raised a question about the adequacy of "notice when we are doing these things" and about Dorsey's entitlement to a jury trial. The trial judge ruled that Dorsey was not entitled to a jury trial because "I will limit [the sentence] to 179 days." The judge also indicated that he would grant a postponement, although Dorsey would have to remain in jail unless he could post bail. When defense counsel raised a question about the absence of a prosecutor, the judge stated that he "would go ahead and let it proceed without a prosecutor." In response to the defense attorney's inquiry about a "purge amount," the trial judge stated:

"You handle the purge by doing a motion for reduction of sentence, at which point the court can grant or not grant, or the court can do its own motion on that. You can argue for a purge. There is even a provision, I can dismiss charges prior to trial if so much is paid."

Dorsey himself then decided against a postponement. Immediately thereafter, the court advised Dorsey of his right to counsel, stated again that Dorsey had no right to a jury trial, informed him that the maximum sentence would be 179 days, informed him of his "right to testify ... after the state presents its evidence or not testify," advised him that, if he decided to testify, he would be subject to cross-examination by the judge, and told him that his failure to testify would not be used against him.

Following the court's advice to Dorsey, Sharon Black was again called as a witness. She stated that the support order was for current support of $66.00 per week plus $16.50 per week "for arrears," that the "arrears at this time are $6807.34," that the "last date of payment was March 26th of `96, and [the] payment was $1837.66," and that there was a payment of $165.00 in February 1996 from a wage attachment. Sharon Black also testified that her records indicated that Dorsey worked for a trucking company in February and March 1996. In response to a question by the court, Sharon Black stated that her records contained no evidence that he was disabled or unable to work.

Upon cross-examination, Sharon Black stated that the agency's records contained no information concerning Dorsey between March 1996 and his appearance in court pursuant to a bench warrant in July 1997. She said that...