Matter of Siracusa, 80-923.

• Decision Date: 16 March 1983
• Docket Number: No. 80-923.,80-923.
• Parties: In the Matter of Richard A. SIRACUSA, Appellant.
• Court: D.C. Court of Appeals

Page 408

458 A.2d 408

In the Matter of Richard A. SIRACUSA, Appellant.

No. 80-923.

District of Columbia Court of Appeals.

Reargued November 19, 1982.

Decided March 16, 1983.

James H. Tatem, Washington, D.C., for appellant.

Robert P. Mosteller, Public Defender Service, Washington, D.C., amicus curiae.

Regina C. McGranery, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Alan D. Strasser and Kathleen E. Voelker, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and MACK, Associate Judges.

PER CURIAM:

This is a rehearing of our decision of May 24, 1982 to affirm the appellant's conviction for contempt of court.¹ We hold now as we did then, that suspension of imposition of sentence is a final judgment in a case for purposes of the right to appeal. We hold today that appellant's noncompliance with a court order giving him 15 minutes to attend to another matter was not contumacious. Accordingly our previous opinion in this case is vacated.

Appellant, a member of the Bar of the District of Columbia, appeared in Superior Court before the Honorable Tim Murphy in courtroom 39 on May 22, 1980, at approximately 10:00 a.m. for a jury trial. He asked Judge Murphy if he could be excused for a few minutes to appear before Judge Donald S. Smith in courtroom 24 for a plea hearing in United States v. Cunningham, No. M-2134-80, also scheduled for 10:00 a.m. Judge Murphy agreed, but said that he wanted appellant back in his courtroom by 10:15 to start the jury trial. Appellant thanked the court and left.

Appellant entered Judge Smith's courtroom at approximately 10:07. His client's case had already been called and Ms. Cunningham was standing before Judge Smith with her other attorney, George Dreos.² Earlier, appellant had told Ms. Cunningham that he would not be present at the hearing and that Mr. Dreos would represent her on all charges. Appellant took his place beside his client at the front of the courtroom, and the plea proceeding continued.

The plea hearing lasted past 10:15. While appellant was in courtroom 24, Judge Murphy's law clerk telephoned Judge Smith's courtroom to inform appellant that he was wanted in courtroom 39 for trial. He was informed by Judge Smith's law clerk that the plea proceeding involving appellant was still in progress. Appellant testified that the hearing ended at about 10:35. While the hearing transcript indicated that the hearing concluded at 10:20, the court reporter subsequently certified that the transcript was in error; in fact the plea hearing did not terminate until 10:35. After the plea proceeding was over, appellant returned to Judge Murphy's courtroom where the jury was waiting. On his way back to the courtroom, appellant encountered Judge Murphy's law clerk who was on his way to find him.

Judge Murphy called appellant to the bench and informed him that he intended to hold him in contempt. On May 23, 1980, Judge Murphy ordered appellant to show cause why he should not be held in contempt for coming to court twenty minutes after he was directed to return.

At the show cause hearing on June 10, 1980, Judge Murphy asked appellant whether he had informed Judge Smith that he was under an obligation to return to Judge Murphy's courtroom before 10:15. Appellant replied that he did not do so because when he entered the courtroom, the plea proceeding was already underway. He also testified that he felt his presence at the hearing was necessary because he did not know if Mr. Dreos was fully informed of the details of the case.³

After taking the matter under advisement, Judge Murphy found appellant guilty of criminal contempt of court. Appellant received a stern warning, but imposition of sentence was suspended. Appellant appealed and his contempt conviction was affirmed. Appellant then filed a petition for rehearing.

I

After submission of the briefs in this case, the government, citing In re Cys, 362 A.2d 726, 729 (D.C.1976), moved to dismiss for lack of jurisdiction on the ground that a contempt citation with no sanction imposed is not an appealable final order.⁴

In Cys, the defendant, who was charged with unlawful entry, claimed as cause for dismissal of the case that he had been excluded from the first offender treatment program in derogation of his rights to due process and equal protection of the laws. In order to test in the court of appeals the question of whether the allegations in the defendant's motion were insufficient to raise a constitutional claim cognizable by the trial court, the court framed the issue by citing the prosecutor, Cys, for "technical" contempt for his refusal to comply with a discovery order directing him to produce written memoranda relating to the first offender program. Id. at 727-28. The court did not sentence Cys, nor did it make any findings or enter any written order. On appeal, a division of this court held that "[a]bsent the imposition of a sanction, whether it be a fine, probation or term in jail, a citation for criminal contempt in and of itself is not a final order and raises no justiciable issue for appeal." Id. at 728-29 (emphasis added).

Here, the government contends that since the trial court expressly suspended imposition of sentence after citing appellant for contempt, no sanction was imposed. Therefore, the government asserts, there is no final appealable order, and consequently this court lacks jurisdiction to consider this appeal. We disagree, for the suspension of imposition of sentence is a disposition authorized under D.C.Code § 16-710 (1981). Such a disposition terminates the case, giving the defendant a right of appeal. Clayton v. United States, supra note 4, 429 A.2d at 1384; see Thomas v. United States, 129 A.2d 852 (D.C.Mun.App.1957).

In Clayton v. United States, supra, the appellant entered a plea of guilty. The trial court suspended imposition of sentence and entered no formal judgment of conviction. Appellant later moved to dismiss the charges against him, relying in part on In re Cys, supra, by asserting that because the trial court attached no sanction or disciplinary condition to the suspension of imposition of sentence, no judgment of conviction was pronounced. We determined that since suspension of imposition of sentence was a sentencing alternative authorized under D.C.Code § 16-710 (1973) (now D.C.Code § 16-710 (1981)), the suspension of imposition of sentence was a final judgment from which a defendant could appeal. Clayton v. United States, supra, 429 A.2d at 1384, citing Thomas v. United States, supra. The absence of a formal sanction did not negate the conviction. Moreover, we distinguished Cys, which did not involve any disposition under § 16-710, by noting that it addressed only the issue of whether there was a right to appeal before pronouncement of sentence.

In the case at bar, as in Clayton, there was a disposition authorized under § 16-710. The trial court suspended imposition of sentence, "an appropriate alternative for terminating a criminal case." Id. This is not a case like Cys, where the appellant sought to appeal before pronouncement of sentence, i.e., disposition of the case. Appellant therefore is appealing from a final judgment and since his appeal was timely noted, we have jurisdiction.⁵

II

Failure of counsel to be present in court at such times as the court requires constitutes a breach of professional duty and often causes disruption of the judicial process. Breach of this professional duty is punishable by criminal contempt. However, such an adjudication must be based on a finding that the failure to appear timely was the result of willful, deliberate or reckless disregard of professional obligations. Simple noncompliance with a court order does not meet this standard. See In re Denney, 377 A.2d 1360, 1363 (D.C.1977).

Siracusa's decision to remain in Judge Smith's courtroom until the conclusion of the plea was not an unreasonable choice between three equally unattractive alternatives. He could have elected to leave Judge Smith's courtroom in order to return to courtroom 24 on time. This course of action would have required the abandonment of a client as well as disrespect for Judge Smith. Alternatively he could have interrupted the plea proceeding to advise Judge Smith of his difficulty. In light of these facts, Siracusa's decision to remain in Judge Smith's courtroom does not institute a willful, deliberate or reckless disregard of professional obligation.

Reversed.

KELLY, Associate Judge, dissenting:

The majority's disposition of the jurisdictional issue on appeal does not differ from that of the original division opinion. In re Siracusa, 445 A.2d 663, 665-66 (D.C.1982). That holding was unchallenged. Rehearing by the division was granted, over my objection, presumably on the basis of a memorandum from the Public Defender Service as amicus curiae in support of appellant's alternative petition for rehearing or for rehearing en banc. Contempt is the issue here. The case is uncomplicated; respondent's dereliction is clear — the question is whether his conduct was contumacious.

Respondent began a trial before Judge Tim Murphy and a jury on May 21, 1980. The following morning, at approximately 9:58 a.m., he asked to be excused to attend to another matter.¹ That matter was a plea hearing in the case of United States v. Cunningham, No. M-2104-80, set before Judge Donald S. Smith at 10:00 a.m. Respondent acknowledges that he did not arrive in Judge Smith's courtroom until 10:07, by which time his absence had been discussed at length by Judge Smith, Mr. George Dreos, Assistant United States Attorney Paul Knight and a Mr. Wecher, who represented Ms. Cunningham in yet another case set for sentencing that morning. Mr. Dreos was counsel on a multi-count felony indictment; Mr. Siracusa was counsel on a misdemeanor Bail Reform Act violation. Judge Smith was told that as far back as the time of arraignment re...