In re Peak, No. 96-SP-439.

• Decision Date: 21 September 2000
• Docket Number: No. 96-SP-439.
• Citation: 759 A.2d 612
• Parties: In re Francine PEAK, Appellant.
• Court: D.C. Court of Appeals

759 A.2d 612

In re Francine PEAK, Appellant.

No. 96-SP-439.

District of Columbia Court of Appeals.

Argued March 4, 1998.

Decided September 21, 2000.

Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Darryl Blane Brooks, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher and Thomas C. Black, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN, and SCHWELB, Associate Judges.

PER CURIAM:

Appellant, Francine Lynch, designated in the trial court and in the caption of this case as Francine Peak, (herein Lynch) appeals following a conditional plea of guilty to criminal contempt for violation of the terms of one provision of a release order by failing to refrain from illegal drug use. The plea was in response to a thirteen-count show cause order which alleged four violations of a permanent injunction and nine violations of the release order that was entered as part of a prior contempt proceeding for violation of the injunction. Her principal argument on appeal is that she cannot be convicted of contempt because the permanent injunction was "void" and therefore the release order was likewise "void." We conclude that even if we assume that the injunction was void (an issue we do not reach), the trial court had the authority to enter the release order and that Lynch can be subject to contempt for violations of that order. However, we also conclude that appellant is correct in arguing that the contempt proceedings were flawed because the private prosecutor was the attorney for the plaintiff in the underlying civil proceedings. Accordingly, we remand the case to allow Lynch the opportunity to withdraw her guilty plea.

I.

On September 22, 1993, Yvonne Turner, filed a pro se complaint against "Francine Peak," alleging that Peak had harassed and threatened her and claiming intentional infliction of emotional distress.¹ In the complaint, Turner demanded judgment against Lynch in the amount of $2,000. Turner filed a motion for a restraining order and a preliminary injunction the same day. The return of service of the special process server shows that "Francine Peak" was served with copies of only the summons and complaint on October 3, 1993.² The certificates of service on the two motions are not completed. On October 4, 1993, the trial court issued a temporary restraining order (TRO) against Lynch, restraining her from molesting, harassing, threatening, or stalking Turner and ordering Lynch not to go within 100 feet of Turner's residence. The trial court scheduled a hearing on the preliminary injunction for October 29, 1993, and entered a default when Lynch failed to appear on that date. Several notices addressed to Francine Peak were returned to the court marked "attempted, not known" on the envelope.³ The court (Judge Arthur Burnett) continued the case and ordered the Deputy U.S. Marshal to serve Peak with notice of a hearing to be held on December 17, 1993. The court stated in its order that a purpose of the order was "to assure adequate notice and due process protection of rights as the violation of any subsequent Order could be punished as a contempt of court." The Deputy U.S. Marshal did not effect service. Nevertheless, the trial court held an ex parte hearing, and based on Turner's sworn testimony, the court issued a permanent injunction against Lynch.⁴

On May 20, 1994, Turner appeared before the court alleging that Lynch had violated the permanent injunction. Turner testified that in April 1994, Lynch "followed [her] to the mailbox, when [she] was going to the mailbox and [Lynch] stood in front of it and closed it up and kept talking to herself. . . . Then when [she] went back up the street [Lynch] followed [her] up the street." Turner also testified that Lynch continued to come in front of her house to curse and follow her. At the conclusion of the hearing, a show cause order was issued directing Lynch to come "to court and explain why she shouldn't be held in contempt for having violated the injunction." Notice was sent to Lynch's address.

On June 10, 1994, Lynch failed to appear at the show cause hearing. As a result, the court issued a writ of attachment for her. The writ was extended several times because of Lynch's failure to appear at the scheduled hearings. A bench warrant was also issued for Lynch's arrest.

On September 30, 1994, Lynch was brought before the court for the first time by the U.S. Marshal. During the hearing, Lynch indicated that her name was in fact Francine Lynch and that her mother's last name was "Peak."⁵ Lynch admitted, however, that she did live at 1019 Fourth Street, the address to which notices from the court had been mailed. The court inquired of Lynch whether she would object to the issuance of a new injunction specifically outlining the prohibited conduct. The court also informed her that a violation of the proposed new order could subject her to punishment for contempt in the form of incarceration. Lynch stated, "I object to that because I didn't do anything." The court appointed counsel for Lynch, released her into third-party custody, and continued the case for a hearing on the contempt allegations.⁶

On October 28, 1994, Lynch failed to appear at the contempt hearing, although she had signed a notice to return to court. A bench warrant was issued for Lynch's arrest. On January 5, 1995, Turner and Lynch were before the court. During this hearing, Lynch admitted that she had been receiving the notices from the court, but claimed to have been told that she did not have to accept them because the name on the notices was incorrect. The court appointed Lynch new counsel, continued the matter, and released her, ordering her to participate in weekly drug testing.⁷ At a subsequent status hearing on February 17, 1995, a new release order was issued, with various conditions.

On May 10, 1995, attorneys from the law firm of Crowell & Moring entered an appearance for Turner. During this hearing, discussions were held as to whether the contempt trial could be prosecuted privately.⁸ On July 24, 1995, the court considered Lynch's Motion to Dismiss for Lack of Personal Jurisdiction in which she argued that she never received the summons and complaint. During the hearing, the process server, Ms. Jacqueline Gaskins, was called to testify. Ms. Gaskins identified Lynch as the person she had served in 1993 and stated that she answered to the name of Francine Peak. The court found Ms. Gaskins' testimony to be credible and denied Lynch's motion to dismiss, concluding that the court had personal jurisdiction over Lynch.⁹

On July 25, 1995, Lynch orally moved to dismiss for lack of subject matter jurisdiction, arguing that the court did not have authority to enjoin a crime. Lynch also asserted that the notice requirement of Super. Ct.Crim. R. 42(b) for contempt proceedings had not been complied with. The court did not rule on the motion, but ordered Turner to file an application for another show cause order specifying each alleged violation of the injunction after September 30, 1994.

On August 11, 1995, an Application for Order to Show Cause was filed with the court which included thirteen counts of alleged violations, which included four counts of alleged violations in 1995, of the court's permanent injunction and nine counts of alleged violations of the court's release order of February 17, 1995. The Application was signed by the attorneys from Crowell & Moring as "Attorneys for the Court." On August 25, 1995, Lynch filed a Motion to Dismiss Application for Order to Show Cause. Lynch argued that: (1) the court lacked jurisdiction to issue a permanent injunction because appellee only sought money damages, therefore the granting of a permanent injunction violated Super. Ct. Civ. R. 54(c); (2) the court did not have authority to enjoin crimes; (3) the permanent injunction was void and therefore any proceedings arising from it were also void; and (4) the special prosecutors for the criminal contempt proceedings represented Turner, and therefore could not serve the court's interests because they were not disinterested. The court denied Lynch's motion. It also rejected Lynch's claim that the private prosecutors could not adequately represent the court finding that: (1) Crowell & Moring had "no financial interest in [the] case"; (2) the attorneys "came into the case only after there were allegations of criminal contempt"; and (3) there weren't "any problems with discovery [or any] conflicts of interest. . . ."

On February 5, 1996, Lynch entered a conditional plea of guilty to one count of failing to refrain from illegal drug use, as required by the release order, specifically reserving in the written memorandum of conditional plea "her right to appeal the legal issues to date."¹⁰ The memorandum was signed by appellant, her counsel, the prosecutor, and the trial judge and stated: "The prosecutor has consented to this procedure, and the Court has approved it, with the understanding that if the defendant prevails on appeal, she will be allowed to withdraw her plea of guilty." After sentencing, Lynch noted this appeal.

II.

Preliminarily, the government argues that Peak failed to preserve for review issues resolved prior to the entry of her plea. Specifically, the government contends that Peak does not meet the requirements for a conditional plea because: (1) the government did not consent to a conditional plea agreement; and (2) Peak did not specify the pre-trial issues reserved for review.

Ordinarily, a defendant who enters a plea of guilty waives all non-jurisdictional defects in the proceedings in the trial court. Collins v. United States, 664 A.2d 1241, 1242 (D.C.1995) (citing United States v. Gines, 964 F.2d 972, 977 (10th Cir.1992), cert. denied, 506 U.S. 1069, 113...