Newsome v. Com, 1999-CA-001641-MR.

• Decision Date: 05 January 2001
• Docket Number: No. 1999-CA-001641-MR.,1999-CA-001641-MR.
• Citation: 35 S.W.3d 836
• Parties: Robert Denzil NEWSOME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

35 S.W.3d 836

Robert Denzil NEWSOME, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

No. 1999-CA-001641-MR.

Court of Appeals of Kentucky.

January 5, 2001.

COPYRIGHT MATERIAL OMITTED

Harry Davis Williams, Paintsville, for appellant.

Robert Denzil Newsome, pro se.

Albert B. Chandler III, Frankfort, for appellee.

Before BARBER, HUDDLESTON and SCHRODER, Judges.

OPINION AND ORDER

HUDDLESTON, JUDGE.

This opinion and order concerns interlocutory orders entered by this Court addressing the failure of counsel for appellant, Harry Davis Williams, to comply with the procedural requirements of this Court and with subsequent orders entered by this Court seeking compliance.

Appellant, through counsel, timely filed a notice of appeal from a Martin Circuit Court judgment on April 29, 1999.On December 3, 1999, this Court entered an order giving appellant twenty days to show cause why this appeal should not be dismissed for failure to file a brief.Appellant, through counsel, did not respond to this order.

On January 12, 2000, this Court entered an order dismissing the appeal and ordering counsel for appellant, Harry Davis Williams, to certify to this Court on or before twenty days from the date of entry of the order that appellant had been served with a copy of the December 3, 1999, show cause order and a copy of the January 12, 2000, order dismissing the appeal.Williams did not comply with this order.

On March 14, 2000, this Court ordered Williams to show cause why he should not be sanctioned in the amount of $100.00 for failure to comply with this Court's order of January 12, 2000.Williams was directed to file the certification requested in the January 12, 2000, order, and to further certify to this Court that, he had served appellant with a copy of the sanctions show cause order, in addition to filing a response or paying the fine.The order instructed Williams that he could request a hearing before a three-judge panel of this Court.The order was served on Williams by certified mail, return receipt requested; and this Court received the receipt signed by Williams.Williams did not respond to the show cause order, remit the sanction of $100.00, or provide the certifications required by this Court.

On May 3, 2000, this Court ordered Williams to remit a sanction of $100.00 and provide the certification as requested in this Court's January 12, 2000, order on or before twenty days from and after the entry of the order.Williams was given a second opportunity to seek a hearing before a three-judge panel of this Court and was notified that the failure to remit the sanction and provide the certifications could result in counsel being asked to show cause why he should not be held in contempt.The order was served on Williams by certified mail, return receipt requested; and this Court received the receipt signed by Williams.Williams did not remit the sanction of $100.00 or provide the certifications.

On June 26, 2000, this Court ordered Williams to appear before the Court on July 18, 2000, at 11:30 a.m., EST, to show cause why he should not be held in contempt of court.The order was served on Williams by certified mail, return receipt requested; and this Court received the receipt signed by Williams.Williams did not appear before this Court as directed in this Court's order of June 26, 2000.

On August 1, 2000, this Court held Williams in contempt for failure to comply with this Court's orders of January 12, 2000; March 14, 2000; May 3, 2000; and June 26, 2000.The Court further ordered Williams to appear before this three-judge panel on September 12, 2000, at 11:30 a.m., EST.The order stated that failure to appear before the Court at that time could result in a bench warrant for Williams' arrest being issued.Williams was ordered to provide the certifications previously requested by this Court on January 12, 2000; to remit the $100.00 sanction; and to show cause why he should not be incarcerated and/or fined for his failure to comply with this Court's orders.Williams did not appear before this Court on September 12, 2000, as ordered.

Power to punish for contempt is inherent in every court¹ Any court or judge may punish any person guilty of contempt for disobeying a judicial order entered under the authority of the Court.²The Court of Appeals is vested with the authority to take appropriate action for a party's failure to comply with the rules of this Court.³

Both this Court and the Kentucky Supreme Court have defined contempt as "the willful disobedience of — or open disrespect for — the rules or orders of a court."⁴Contempt of court may be civil or criminal in nature.⁵Civil contempt is the failure of one to do something under order of a court;⁶ criminal contempt is conduct "which amounts to an obstruction of justice and which tends to bring the court into disrepute."⁷Criminal contempt is further categorized as direct or indirect.⁸In Burge,the Supreme Court defined direct criminal contempt:

[D]irect contempt is committed in the presence of the court and is an affront to the dignity of the court.It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court.[⁹]

An individual who has committed indirect criminal contempt may be punished only in proceedings that satisfy due process.¹⁰A court may not impose a fine greater than $500.00 and/or incarceration for more than six months except upon the unanimous verdict of a jury finding the individual guilty of contempt beyond a reasonable doubt.¹¹

An attorney's failure to comply with a court order constitutes criminal contempt because it is directed against the dignity and authority of the court.¹²Williams did not comply with this Court's orders of January 12, 2000; March 14, 2000; May 3, 2000; June 26, 2000; and August 1, 2000.As a result of Williams' failure to comply with these orders, this Court found Williams in direct criminal contempt of this Court.The Court fined Williams an additional $100.00 for his failure to comply with this Court's orders, ordered his incarceration for thirty days for failure to comply with this Court's orders, suspended incarceration pending further order of the Court, and directed Williams to appear before a three-judge panel on October 3, 2000, at 12:00 noon, EST.

Williams finally appeared before this Court on October 3, 2000.Williams did not provide proof of compliance with any previous orders of this Court: he had failed to notify his client in writing that the client's appeal had been dismissed, he had failed to certify to this Court that he had notified his client that the client's appeal had been dismissed, he had failed to remit to this Court the two previous fines totaling $200.00 imposed by this Court, and he had failed to appear before this Court as ordered on September 12, 2000.

Therefore, on October 3, 2000, this Court held Williams in contempt and sentenced him to Franklin.County Jail for forty-eight hours.The Court suspended twenty-four hours of the sentence on condition that Williams pay the previously imposed $100.00 fines; notify his client, in writing by United States certified mail, return receipt requested, that the client's appeal had been dismissed due to Williams' failure to file a brief with this Court; file with this Court a copy of the certification to his client and the returned certified mail receipt within twenty-five days from the date of entry of the order of contempt; and appear before this Court on October 31, 2000, at 11:30 a.m., EST.

On October 3, 2000, Williams remitted the two $100.00 fines.On October 26, 2000, Williams filed the notification of his client with a copy of the certified mail receipt attached with this Court.On October 31, 2000, Williams appeared before this Court.At the hearing, Williams orally moved this Court to supplement his October 26, 2000, response to this Court's October 3, 2000, order.The Court orally granted the motion.The supplemental response includes the return receipt from the notice to appellant that his appeal had been dismissed.

Inasmuch as Williams has complied with this Court's order of October 3, 2000, to notify his client in writing that the appeal was dismissed; to serve the notification on appellant by certified mail, return receipt requested; to file a copy of the notice sent to appellant and the return receipt with this Court; to pay the two $100.00 fines; and to appear before this Court on October 31, 2000, we hereby ORDER that the remainder of counsel's sentence which was suspended pending compliance with this Court's order be DISCHARGED.

On July 31, 2000, this Court received a pro se motion for belated appeal and a motion for appointment of counsel from Robert Denzil Newsome, the appellant in this case.This motion was returned to appellant, as he was represented by counsel.This Court retained a copy of the motion.We now ORDER that the retained copy of these motions be FILED, and treated as a motion to reinstate appeal and...