Scialdone v. Com.

Decision Date13 January 2009
Docket NumberRecord No. 1738-06-1.,Record No. 1739-06-1.,Record No. 1737-06-1.
PartiesClaude M. SCIALDONE v. COMMONWEALTH of Virginia Barry R. Taylor v. Commonwealth of Virginia Edward Jones, s/k/a Edward S. Jones v. Commonwealth of Virginia.
CourtVirginia Court of Appeals
670 S.E.2d 752
53 Va. App. 226
Barry R. Taylor
Commonwealth of Virginia
Edward Jones, s/k/a Edward S. Jones
Commonwealth of Virginia.
Record No. 1737-06-1.
Record No. 1738-06-1.
Record No. 1739-06-1.
Court of Appeals of Virginia, Richmond.
January 13, 2009.

[670 S.E.2d 753]

Marvin D. Miller (Heather Golias; Law Offices of Marvin D. Miller, on briefs), Alexandria, for appellants.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, Karri B. Atwood, Assistant Attorney General; Gregory W. Franklin, Assistant Attorney General, on briefs), for appellee.

[670 S.E.2d 754]




53 Va. App. 229

The trial court found Claude M. Scialdone, Barry R. Taylor, and Edward S. Jones in contempt of court. On appeal, a panel of this Court held the evidence was sufficient to support the contempt findings. Scialdone v. Commonwealth, 51 Va.App. 679, 724-27, 660 S.E.2d 317, 340-41 (2008). The panel remanded the cases for retrial, however, ruling that the trial

53 Va. App. 230

court improperly conducted a summary contempt proceeding and thereby deprived appellants of due process rights associated with plenary contempt. Id. at 718-24, 660 S.E.2d at 337-41.

At the Commonwealth's request, we agreed to rehear the cases en banc. Having done so, we now hold appellants failed to preserve for appeal their argument that the trial court deprived them of due process rights associated with plenary contempt. At no point during the contempt proceeding did appellants object to its summary nature or assert any entitlement to plenary due process rights. Instead, appellants raised these points for the first and only time solely in support of a request under Code 19.2-319 for bail and a stay of the judgments pending appeal. A motion under Code 19.2-319, standing alone, does not preserve issues for appeal not previously raised in the trial court.


On July 11, 2006, the trial court began the jury trial of Frankie Dulyea on various criminal charges. Scialdone served as lead defense counsel at trial. Jones, a third-year law student, and Taylor, Scialdone's law partner, assisted the defense. During the course of the trial, the court suspected Scialdone and Taylor had altered a document offered into evidence. The court also became concerned Jones had added insulting language to an exhibit offered for admission into evidence. The court investigated these concerns by examining the documents and by summoning additional witness testimony and documentary evidence. The court heard some of this evidence while Taylor and Jones were not present in the courtroom.

Anticipating where the court's investigation might end, Scialdone stated he would "like to know what [he's] being charged with" because he "may want to have a lawyer for that." In response, the trial court ruled: "I'm finding you in summary contempt, all three of you. . . . At this point in time that's what's happening." Upon being advised of this finding,

53 Va. App. 231

neither Scialdone, Taylor, nor Jones objected to the summary nature of the contempt findings. Nor did they request any procedural rights associated with plenary contempt.

Dulyea's jury trial ended three days later. Shortly after the jury had been discharged, the trial court referred back to its ruling made the first day of trial and stated: "Pursuant to Code § 18.2-456, I found all three of you in contempt of court." Upon explaining the rationale behind its ruling, the court sentenced Scialdone, Taylor, and Jones to each serve ten days in jail and pay a $250 fine. Once again, none of the appellants objected to the summary nature of the contempt findings. Nor did they request any of the procedural protections associated with plenary contempt. That same day, appellants filed notices of appeal.

A few days later, appellants filed with the trial court Motions for Stay of Execution of Sentence.1 Relying on Code 19.2-319, they requested a stay of execution of the sentence pending appeal of the contempt conviction to the Court of Appeals. On July 18, appellants also filed a Motion for Emergency Stay of Sentence in this Court requesting that we exercise our authority under Code 19.2-319

670 S.E.2d 755

to stay the sentences pending appeal. The motions alleged the trial court had not ruled on the motions to stay pending in the trial court.

We issued an order noting that the circuit courts oral ruling from the bench found appellants in contempt of court and sentenced them to an active jail term. See Temporary Stay Order (July 19, 2006). In response, we further noted, appellants had filed motions, pursuant to Code 19.2-319, with the circuit court asking that court for a stay of each of the ten-day sentences for contempt of court pending the appeals of these cases. Id. We granted a temporary stay of the execution of the jail sentences until such time that the circuit court rules on the pending motions filed before it pursuant to Code 19.2-319. Id. Our remand was specific and limited: We direct the clerk

53 Va. App. 232

of the circuit court to forward a copy of the written orders addressing these motions to our clerk of court within 14 days. Id. (emphasis added).

In response to our remand order, the trial court conducted a hearing on the request for a stay pending appeal. At that hearing, appellants argued they should be granted bail in order to pursue an appeal challenging the factual sufficiency of the contempt findings and legal validity of the summary contempt procedures. For the first time during the trial court proceedings, appellants argued the court improperly found them guilty of summary contempt without providing them with prior notice of the charge, an opportunity to prepare a defense, or the benefit of legal counsel. Appellants, however, did not ask the court withdraw its contempt findings, issue a show-cause order outlining the charges, or continue the proceedings so they could retain counsel and prepare a defense. Instead, appellants criticized the summary nature of the contempt proceedings solely as a preview of the arguments they intended to make on appeal.

"[B]ased upon the foregoing," appellants argued, they were entitled to "an order of stay of execution of the sentence[s] pending appeal of the contempt conviction[s] to the Court of Appeals of Virginia." Motions for Stay of Execution of Sentence (July 17-18, 2006). In their attachment to the motions, appellants specifically made clear the scope of their argument to the trial court: "This Court is respectfully requested to consider these authorities in support of the Motion to Stay Execution of Sentence pending appeal." Id. at Attachment A.

The trial court denied the motion for a stay pending appeal. Appellants appealed the trial court's Code § 19.2-319 ruling and eventually secured from the Virginia Supreme Court an order staying execution of the sentences pending appeal.

With the sentences stayed, the appeal continued. Scialdone, Taylor, and Jones filed appellate briefs contending the evidence was insufficient as a matter of law to find them guilty of contempt of court. They also argued that, even if the evidence were sufficient, the trial court erroneously conducted a

53 Va. App. 233

summary contempt proceeding that, in effect, deprived them of due process rights available under plenary contempt law.

A panel of this Court rejected appellants' challenge to the sufficiency of the evidence, Scialdone, 51 Va.App. at 724-27, 660 S.E.2d at 340-41,2 but accepted appellants' due process argument and remanded the cases for retrial using plenary contempt procedures. The Commonwealth filed a petition for en banc rehearing contesting the panel's decision to remand the cases for retrial. We granted the Commonwealth's petition for rehearing en banc to reconsider this issue.


Appellants did not petition for en banc rehearing of the panel's decision finding the evidence sufficient and, thus, we need not reengage that aspect of these appeals. See generally Ferguson v. Commonwealth, 51 Va.App. 427, 432-33, 658 S.E.2d 692, 695 (2008) (en banc) (holding the en banc court would not address issues "affirmed by the

670 S.E.2d 756

panel opinion" for which appellant "did not petition for rehearing en banc"). We reinstate the panel opinion as to those issues. Id. We limit our en banc review to the question whether appellants properly preserved their appellate challenge to the summary nature of the contempt proceeding and, if so, whether the trial court deprived appellants of procedural rights associated with plenary contempt. Because we answer the first question in the negative, we do not reach the second.


Appellants contend the trial court erroneously conducted a summary contempt proceeding and thereby deprived them of due process rights associated with plenary contempt. See generally Int'l Union, United Mine Workers of Am. v.

53 Va. App. 234

Bagwell, 512 U.S. 821, 826-34, 114 S.Ct. 2552, 2556-61, 129 L.Ed.2d 642 (1994). Nothing in the record, however, shows that appellants ever asked the trial court to recognize any specific procedural right associated with plenary contempt. In other words, appellants argue the trial court erroneously deprived them of procedural rights they never requested.

Rule 5A:18 applies to appellate challenges of summary contempts, Singleton v. Commonwealth, 52 Va.App. 665, 672-73, 667 S.E.2d 23, 26 (2008), just as it does to any other non-jurisdictional claim of trial court error. See, e.g., Nusbaum v. Berlin, 273 Va. 385, 406, 641 S.E.2d 494, 505 (2007) (barring argument that the trial court violated defendant's due process rights "by summarily convicting him of indirect [plenary] criminal contempt"). Appellants acknowledge this point but argue their motions under Code 19.2-319 to stay their...

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