Perroni v. State, 03-878.

• Decision Date: 17 June 2004
• Docket Number: No. 03-878.,03-878.
• Citation: 186 S.W.3d 206
• Parties: Samuel A. PERRONI v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 206

186 S.W.3d 206

Samuel A. PERRONI v. STATE of Arkansas.

No. 03-878.

Supreme Court of Arkansas.

June 17, 2004.

COPYRIGHT MATERIAL OMITTED

Dudley & Compton, by: Timothy O. Dudley, Little Rock, AR, for Appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Asst. Att'y Gen., Little Rock, AR, for Appellee.

TOM GLAZE, Justice.

Attorney Samuel A. Perroni appeals Circuit Judge Timothy D. Fox's order finding Perroni in criminal contempt. This matter arises out of a felony tax fraud case that the State filed on July 1, 2000, in the Pulaski County Circuit Court, Sixth Division, against Richard Ross and two other defendants. Perroni represented Ross. Initially, Judge David Bogard was presiding judge, and there were five continuances granted, two of which were because of scheduling conflicts with cases Perroni had pending in different federal district courts.¹ Finally, the Ross matter was set first out for a four-day jury trial to begin on February 11, 2003. On August 5, 2002, both Perroni and Ross executed a notice order of the February 11 trial setting.

Meanwhile, Perroni undertook the representation of another defendant, Steve Pirani, who, along with two co-defendants, was charged in federal court with numerous felony offenses. Pirani was indicted on July 25, 2002, arraigned on August 7, 2002, and Federal District Judge Susan Webber Wright initially set the Pirani trial to begin on September 4, 2002. However, Perroni promptly asked Judge Wright for a continuance, asserting that he had another federal court case scheduled to commence on September 16, 2002, in Federal District Judge Bill Wilson's court. Judge Wright accommodated Perroni by rescheduling the Pirani case to begin on February 10, 2003. For unknown reasons, Perroni did not advise Judge Wright that the February 10 date would conflict with the earlier setting of February 11, 2003, in the state court's Ross case.

The next relevant date and event occurred when, on January 6, 2003, Judge Wright entered an order noting that she had previously denied Steve Pirani's motion to sever, but asked the Government to explain its objection to severance. In her order, Judge Wright reconfirmed the February 10, 2003, trial setting. Again, Perroni never mentioned this conflict with the state court's February 11, 2003, trial setting. By way of a telephone conference with all counsel for the Government and defendants, on January 31, 2003, Judge Wright noted in her order of the same date that she was advised that the defendants could be tried separately, and she directed that Steve Pirani's trial would commence with jury selection to begin on February 10, 2003, and Pirani's co-defendants would be tried afterwards. Again, the record reflects that Perroni failed to mention to Judge Wright the scheduling conflict he had regarding the Ross case in state court. Instead, Perroni waited until January 31, 2003, to ask the state circuit court judge for another continuance of the Ross case. At this stage of the proceedings in the Ross and Pirani cases, Circuit Judge Fox had been elected and replaced Judge Bogard, who had retired.

Judge Fox promptly set a hearing for February 4, 2003, to consider Perroni's motion for continuance, but, instead of appearing at the February 4 hearing, Perroni sent an associate. After Judge Fox denied the continuance Perroni's associate had requested, Perroni quickly moved for Judge Fox to reconsider his ruling; however, at another hearing set on February 5, 2003, Judge Fox refused to set aside his order denying a continuance. Perroni then moved to withdraw as Ross's counsel, and that request, too, was denied.

On February 10, 2003, Perroni had a letter delivered to Judge Fox, renewing his motions for continuance and to withdraw as counsel. He enclosed a copy of Judge Wright's scheduling order which reflected that Steve Pirani's trial was to begin February 10, 2003. On the day of trial, February 11, 2003, Ross appeared in court without counsel, although Perroni's law partner, Patrick James, appeared and advised that he was making a special appearance on Ross's behalf. The state prosecutor announced ready for trial, but the trial court continued the case and released the jury and the State's witnesses because Ross said that he had been unable to obtain substitute counsel. Citing Ark. Code Ann. § 16-84-111(b) (Supp.2003),² Fox ordered Ross to be held in custody pending further orders of the court. Judge Fox stated the case was in recess, and Ross could again be released upon an appearance bond, if the surety agreed to remain as the surety until final judgment was rendered.

On February 12, 2003, Judge Fox issued an order to show cause why Perroni should not be held in contempt for failing to appear in court to represent Ross on February 11, 2003. Perroni responded by filing a motion suggesting Judge Fox's disqualification, alleging Judge Fox's impartiality might be questioned. Perroni alleged that Fox improperly did the following:

(1) Illegally and unconstitutionally incarcerated Ross in what appears to be retaliation against his counsel, Perroni.

(2) Inappropriately, adversarially, and aggressively took action against Perroni via the court's correspondence, treatment of counsel, and the issuance of an order to show cause.

(3) Independently investigated facts in this case as opposed to considering only the evidence presented. This included an investigation of Ross's appearance bond and the pleadings filed in the Pirani case.

Perroni concluded by stating that Judge Fox and his staff were in an adversarial relationship which suggested Fox's impartiality might reasonably be questioned. Perroni requested an evidentiary hearing regarding his allegations, and Judge Fox set a hearing on March 14, 2003. On March 14, 2003, a hearing was held, and Perroni's attorney renewed his earlier motions which Judge Fox again denied. Fox then recited the facts of the case, and Perroni called Federal Judge Bill Wilson to testify as a character witness. After Judge Wilson's testimony, Judge Fox and Perroni's attorney, Tim Dudley, turned their attention to the fact that Perroni had filed a removal motion in federal district court, and no further action could be conducted until the federal court decided to take the case or remand it back to the state circuit court. The federal court returned this case to Judge Fox's court, whereupon Fox found that Perroni had wilfully disobeyed Fox's scheduling order by not appearing with Ross at the February 11, 2003, trial. Judge Fox imposed the following sanctions:

(1) payment of $780.00 for reimbursement of the juror members who were called, had appeared, and were discharged in Ross's case;

(2) payment of the State's witness fees in the amount of $443.72;

(3) reimbursement of the costs of copying pleadings filed in the Pirani federal court case in the amount of $55.20; and

(4) payment of a fine of $1,000.00.

Perroni brings this appeal contending that (1) Judge Fox committed reversible error by failing to recuse; (2) as a matter of law, there is a failure of evidence with regard to the charge of willful conduct; and (3) Judge Fox erred by failing to accord him his constitutional protections. In arguing his first point, Perroni offers six reasons that he believes merit reversal. He claims Judge Fox erred (1) by serving as a prosecutor; (2) by serving as a witness; (3) in prejudging Perroni's case; (4) by incarcerating Ross, which demonstrated animus and retaliation against Perroni; (5) by conducting an ex parte investigation of the facts; and (6) by demonstrating an appearance of impropriety. We first address Perroni's two general contentions involving recusal and contempt because the conclusions we reach on these two matters render it unnecessary to reach some of the subpoints Perroni raises.

Our law regarding recusal and contempt is well settled. When recusal is in issue, this court has held that a judge has a duty to sit on a case unless there is a valid reason to disqualify, and, on appeal, we presume impartiality on the trial judge's part. See Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000); Ark. Dep't of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) (judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise). This court has also held the standard of review on appeal is whether the trial judge abused his or her discretion in the matter. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994).

Upon our review of the record, we hold that Perroni has failed to demonstrate the required bias on Judge Fox's part. While Perroni alleges Fox erred by serving as prosecutor and as a witness, in prejudging Perroni's case, in incarcerating Ross, and in conducting an ex parte investigation when preparing for a show-cause hearing, the primary issue is whether he disobeyed Judge Fox's scheduling order.

Arkansas law is settled that an act is contemptuous if it interferes with the order of the court's business or proceedings or reflects upon the court's integrity. Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000). This court has also held that the disobedience of any judgment, order, or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). For example, in Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000), two prosecutors were in direct criminal contempt when they did not comply with a scheduling order and proceed to trial on the trial date. By adopting a rule of criminal procedure, this court has emphasized that control of the trial calendar is a matter that rests solely with the trial judge who shall provide for the scheduling of cases upon the calendar. See Ark. R.Crim. P. 27.2. Accordingly, this court has held that the scheduling of cases is tantamount to a direct order of the court, id., see also Rischar v. State, 307 Ark....