Robinson v. Com.

• Decision Date: 08 July 2003
• Docket Number: Record No. 3389-01-1.
• Citation: Robinson v. Com., 583 S.E.2d 60, 41 Va. App. 137 (Va. App. 2003)
• Parties: William P. ROBINSON, Jr., v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

583 S.E.2d 60

41 Va. App. 137

William P. ROBINSON, Jr., v. COMMONWEALTH of Virginia.

Record No. 3389-01-1.

Court of Appeals of Virginia, Chesapeake.

July 8, 2003.

William P. Robinson, Jr., Norfolk (George A. Anderson, Jr.; Robinson, Neeley, and Anderson, on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.

Present: FRANK and HUMPHREYS, JJ., and HODGES, S.J.

FRANK, Judge.

William P. Robinson, Jr. (appellant) was convicted in a bench trial of common law criminal contempt of court. On appeal, he contends the trial court erred in (1) finding the evidence was sufficient to convict and (2) imposing punishment that exceeded the limitations of Code §§ 18,2-456(1) and 18.2-457. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

The facts are uncontroverted. Appellant, a licensed attorney, had three criminal matters set for hearings in Northampton County Circuit Court on July 23, 2001. Two of the matters involved entry of guilty pleas, and the other involved a sentencing. On July 19, 2001, Wendell Donald Brown, appellant's "paralegal investigator," called Bruce D. Jones, Jr., the Northampton County Commonwealth's Attorney, to ask that the three cases set for July 23rd be continued. Brown explained appellant had jury trials in other jurisdictions that would run over their estimated time and continue onto July 23rd. Although Brown knew appellant had several cases scheduled in Virginia Beach Circuit Court for the morning of July 24th, he suggested July 24th as an appropriate day for the Northampton cases. He did not tell Jones about the Virginia Beach cases.

Jones told Brown that he had to appear in general district court on July 24th and that the circuit court judge would not be in Northampton County that day. He told Brown to contact the circuit court judge's secretary.

Brown talked to the judge's secretary, and the cases were rescheduled for July 24th at 11:00 a.m. Brown informed the Commonwealth and appellant of the change. Appellant then asked Brown to send letters to the Virginia Beach prosecutors requesting continuances for five cases set for July 24th in Virginia Beach.¹ The letters were sent on July 20th. Neither Brown nor appellant actually spoke to the Virginia Beach prosecutors prior to the 24th to confirm the continuances.

During his testimony, appellant acknowledged knowing that the Northampton cases were set for 11:00 a.m. on July 24th. He acknowledged that, when he suggested the July 24 day to Northampton, he knew he had cases set for that day in the Virginia Beach Circuit Court. While appellant did not verify that the Virginia Beach cases could be continued prior to setting the Northampton cases, he explained he had no reason to believe the Virginia Beach cases would not be continued.

The jury trial that appellant expected to run until July 23rd was settled prior to its conclusion. As a result, appellant did not have court on July 23rd. However, he did not contact the Virginia Beach prosecutors or courts to ask about the continuances.

On the morning of July 24th, appellant went to Virginia Beach to confirm his requested continuances and get new dates for those cases. He arrived at approximately 9:30 a.m. His cases were in several different courtrooms with different judges. Appellant characterized his predicament: "It took longer to confirm dates, continuances, make the motions before the judges because there were cases all over the place." Additionally, he had a hearing on a probation violation, requesting that a defendant be evaluated for a diversion program.

Despite the length of the Virginia Beach transactions, appellant never notified the Northampton court that he was "running late." He had the opportunity to contact his office and ask them to call the court, but he "didn't really think of it." Appellant testified he had anticipated resolving his cases in Virginia Beach in no more than "a half-hour or so."²

At 11:00 a.m. on July 24th, Jones and all three of appellant's clients were present in the Northampton court. The judge was waiting in chambers, and court personnel were present, but appellant did not appear. Eventually, the judge recessed for lunch. After lunch, Jones was told that the judge would not return to court that day. Sometime after 1:00 p.m., appellant called Jones from his cell phone, saying that he was just coming off the Bay Bridge Tunnel and he understood the judge had left the bench for the day.

The trial court issued a contempt show cause for appellant. A plenary hearing was held on November 7, 2001. At the outset of the hearing, the court explained that appellant was charged with indirect contempt, rather than direct contempt, and that the hearing was a plenary hearing rather than a summary hearing.³

The trial court found appellant guilty of criminal contempt of court, reiterating that he is not bound by the constraints of Code § 18.2-456(1) because this contempt was indirect and not disposed of in a summary fashion. The trial court explained, "[T]here were cases scheduled intentionally and willfully at the same time [in two separate jurisdictions]." The trial court further commented on appellant's failure to contact the Northampton court about his tardiness. The trial court fined appellant $1,000 and sentenced him to thirty days in jail, suspended upon certain terms and conditions. The court also prohibited appellant from taking any new cases within the jurisdiction of Northampton County for one year.⁴

ANALYSIS

A. Sufficiency

First, appellant contends the evidence was insufficient to convict him because he had no intent to obstruct or interfere with the administration of justice. He asserts, to the contrary, he acted in the best interest of his clients and the administration of justice. We disagree.

On review of an insufficiency claim, "`this Court does not substitute its judgment for that of the trier of fact.'" Jett v. Commonwealth, 29 Va.App. 190, 194, 510 S.E.2d 747, 748 (1999) (en banc) (quoting Canipe v. Commonwealth, 25 Va.App. 629, 644, 491 S.E.2d 747, 754 (1997)). "Where the court's authority to punish for contempt is exercised by a judgment rendered, its finding is presumed correct and will not be reversed unless plainly wrong or without evidence to support it." Brown v. Commonwealth, 26 Va.App. 758, 762, 497 S.E.2d 147, 149 (1998). "We must view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Baugh v. Commonwealth, 14 Va.App. 368, 374, 417 S.E.2d 891, 895 (1992). "`Contempt is defined as an act in disrespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.' 4A Michie's Jurisprudence Contempt § 2 (Repl. Vol.1983)." Carter v. Commonwealth, 2 Va.App. 392, 396, 345 S.E.2d 5, 7 (1986). The Supreme Court defined constructive contempt almost a century ago:

In the 9 Cyc. of Law and Procedure, p. 6, a constructive contempt is stated to be "an act done not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice."

Barton, in Vol. 2 (2 Ed.), p. 774, of his Law Practice, is to the same effect. "Contempt of court is a disobedience to the court, or an opposing or despising the authority, justice or dignity thereof."

Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880 (1904). Additionally, "`[i]t has been stated that intent is a necessary element in criminal contempt, and that no one can be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it.' 17 Am.Jur.2d Contempt § 8 (1964) (emphasis added)." Carter, 2 Va.App. at 397, 345 S.E.2d at 8.

Our decision in Brown controls here. Brown, an attorney, set a civil jury trial in the Circuit Court for the City of Norfolk while setting four cases in the Virginia Beach Juvenile and Domestic Relations District Court for the same day. 26 Va.App. at 761, 497 S.E.2d at 149. He then appeared approximately forty minutes late for the cases in Norfolk. Id. We held:

[W]here an attorney schedules multiple matters in different jurisdictions at the same time, his assertions of good faith "[do] not negate the reasonable inference that he recklessly or willfully failed [timely] to advise the court of his conflicting schedule." See Murphy v. Maryland, 46 Md.App. 138, 416 A.2d 748, 756 n. 11 (1980). Here, appellant's actions in scheduling multiple matters for trial in different courts in different jurisdictions at the same time support the trial court's finding of "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice."

Id. at 762, 497 S.E.2d at 149.

Here, appellant had a number of criminal matters set in the Virginia Beach Circuit Court on July 24, 2001. He then set three criminal matters in the Northampton County Circuit Court for the same day.⁵ While appellant thereafter requested that the Virginia Beach Commonwealth's Attorney continue those matters, the Virginia Beach cases were not continued prior to July 24. Appellant appeared in Virginia Beach at 9:30 a.m. to have the matters continued and to obtain new trial dates. He also had to resolve a probation violation matter that he had omitted from his docket. Appellant, running late in Virginia Beach, failed to advise the Northampton County Circuit Court of his tardiness, although he had the means to contact the court.⁶ He apparently did not attempt to contact anyone in Northampton about his tardiness until more than two hours after his cases were scheduled to begin.

The evidence was sufficient to convict appellant of contempt. As in Brown, appellant knowingly created a conflict in his schedule, setting cases on the same morning in two...