Singleton v. Com.

• Decision Date: 05 November 2009
• Docket Number: Record No. 090012.,Record No. 082270.
• Citation: 278 Va. 542,685 S.E.2d 668
• Parties: Kenneth L. SINGLETON v. COMMONWEALTH of Virginia. Gordon Andrew Zedd v. Commonwealth of Virginia.
• Court: Virginia Supreme Court

685 S.E.2d 668

278 Va. 542

Kenneth L. SINGLETON v. COMMONWEALTH of Virginia.

Gordon Andrew Zedd v. Commonwealth of Virginia.

Record No. 082270.

Record No. 090012.

Supreme Court of Virginia.

November 5, 2009.

Charles B. Lustig (Thomas B. Shuttleworth; Shuttleworth, Ruloff, Swain, Haddad & Morecock, on briefs), Virginia Beach, for appellants.

Robert H. Anderson III, Senior Assistant Attorney General (William C. Mims, Attorney General; Joanne V. Frye, Assistant Attorney General, on briefs), for appellee.

Present: KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In these appeals, we consider whether the evidence was sufficient to convict two attorneys for contempt of court in violation of Code § 18.2-456. In Singleton v. Commonwealth, Kenneth L. Singleton was found guilty of criminal contempt for failing to appear for a scheduled trial of his client and for excusing his client from appearing at the trial without the court's approval. In Zedd v. Commonwealth, Gordon Andrew Zedd was found guilty of criminal contempt for excusing his client from appearing for a scheduled trial without the court's approval.

BACKGROUND

I. Singleton v. Commonwealth

Darrell P. Simpson retained attorney Kenneth L. Singleton to represent him in an appeal of a misdemeanor conviction for driving under the influence. The matter was originally set for trial on August 30, 2007 in the Circuit Court of the City of Norfolk.

Prior to trial, Singleton contacted the prosecutor assigned to the case regarding a continuance. The prosecutor and Singleton agreed to a continuance of the case to September 27, 2007. The prosecutor then prepared a continuance order and "called off" his witness in the case. On August 28, 2007, the prosecutor and Singleton met and signed the continuance order. Thereafter at Singleton's direction, his office informed Simpson that he did not need to appear in court for his original trial date.

On August 30, 2007, the prosecutor appeared in the circuit court and requested entry of the continuance order. The court rejected the order in light of the fact that neither Singleton nor his client was present.

Singleton, Simpson, and the prosecutor subsequently appeared before the circuit court on September 12, 2007 for a bond hearing.¹ At that time, the court asked Singleton: "What authority do you have to excuse a person from court?" Singleton answered by indicating that the parties had agreed on a date to continue the case. The court asked again: "What authority do you have to excuse someone from court without a judge entering an order?" Singleton answered: "None, Your Honor." The court then found Singleton in contempt of court, fining him $250.

In his defense, Singleton explained: "I know I have no authority as a judge to excuse anyone from court, but as an officer of the court, I did believe, in good faith, that after speaking with the Commonwealth['s] Attorney, we had agreed on a date." The circuit court replied: "You do understand that nothing you talk about between counsel is an order until a judge says it's an order, right?" Singleton responded that he had signed the continuance order and that he was unaware the continuance order was not entered. The court concluded the hearing with an admonition that Singleton should never excuse a client from appearing on a scheduled trial date without knowing that a judge has in fact given approval for a continuance.

The circuit court entered a final order on September 13, 2007, finding Singleton guilty of contempt of court pursuant to Code § 18.2-456. In the final order, the court handwrote the following after the contempt charge: "[i]ntentional [i]nterference with [the] administration of justice by willfully & knowingly failing to appear for a court appearance without prior court approval and further, advising his client not to appear resulting in an arrest warrant being issued for the client's arrest."

On appeal to the Court of Appeals, Singleton argued the evidence was insufficient to find him guilty of contempt because there was no evidence of contemptuous intent. Singleton also argued that the trial court denied him due process by erroneously employing summary, rather than plenary, contempt procedures.

In a published opinion, a three-judge panel of the Court of Appeals affirmed Singleton's conviction, holding that by not appearing on the original trial date and advising his client not to appear on that date, Singleton undermined the trial court's authority to control the court's docket and schedule criminal cases for trial. Singleton v. Commonwealth, 52 Va.App. 665, 671, 667 S.E.2d 23, 26 (2008). The Court of Appeals also held that Singleton was precluded from raising for the first time on appeal the argument that he should have received the procedural protections associated with plenary contempt. Id. at 672-73, 667 S.E.2d at 26. We awarded Singleton an appeal.

II. Zedd v. Commonwealth

Kiwani Scott retained attorney Gordon Andrew Zedd to represent her in an appeal of a misdemeanor conviction for reckless driving. The matter was originally set for trial on October 2, 2007 in the Circuit Court of the City of Norfolk.

The day before the trial, Zedd contacted the prosecutor assigned to the case in order to request a continuance because of a scheduling conflict. The prosecutor agreed to continue the case to November 6, 2007 because its key witness, the state trooper who had charged Scott, was unavailable to attend the trial. Subsequently, Zedd contacted Scott and told her that she did not need to appear in court the next day.

Zedd and the prosecutor appeared in the circuit court the following day and submitted a joint continuance order to the court. The court questioned Zedd about the whereabouts of his client. Zedd stated that he had excused his client. In response to the court's questions for why he had excused his client, Zedd noted the unavailability of the state trooper and the Commonwealth's inability to proceed. Additionally, the prosecutor highlighted to the court that this was a joint continuance motion due to a mutual inability to proceed.²

At the conclusion of the proceedings on October 2, 2007, the circuit court issued a bench warrant charging Zedd with contempt of court. Pursuant to that warrant, Zedd was arrested and processed. On February 28, 2008, the court entered a final order finding Zedd guilty of contempt of court pursuant to Code § 18.2-456 and imposing a fine of $50.

On appeal to the Court of Appeals, Zedd argued the evidence was insufficient to find him guilty of contempt because there was no evidence of contemptuous intent. Zedd also argued that the trial court denied him due process by erroneously employing summary, rather than plenary, contempt procedures. In addition, Zedd attempted to distinguish his case from Singleton's case, noting that unlike Singleton, he had appeared on the scheduled trial date.

The Court of Appeals in an unpublished opinion held that Zedd's appearance in court on the scheduled trial date was insufficient to distinguish his case from Singleton's case. Accordingly, for the reasons stated in Singleton, 52 Va.App. at 672-73, 667 S.E.2d at 26, the Court of Appeals affirmed Zedd's conviction. Zedd v. Commonwealth, Record No. 2621-07-1, 2008 WL 5054692 (December 2, 2008). We awarded Zedd an appeal.

DISCUSSION

The dispositive issue in these appeals is whether there was sufficient evidence to convict Singleton and Zedd of contempt of court. The applicable standard of appellate review is well established. Where the sufficiency of the evidence is challenged after conviction, we review the evidence in the light most favorable to the Commonwealth, according it the benefit of all reasonable inferences fairly deducible therefrom. Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000). As a result, we will reverse a judgment of the circuit court only upon a showing that it is plainly wrong or without evidence to support it. Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).

Both Singleton and Zedd were convicted of contempt of court in violation of Code § 18.2-456, which states in relevant part:

The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following:

(1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;

. . . .

(4) Misbehavior of an officer of the court in his official character;

(5) Disobedience or resistance of an officer of the court, ... to any lawful process, judgment, decree or order of the court.

We have long recognized that "[a]ll courts in this Commonwealth have the power to impose penalties for contemptuous conduct." Gilman v. Commonwealth, 275 Va. 222, 227, 657 S.E.2d 474, 476 (2008). Moreover, "[a] court's authority to punish contemptuous conduct is exercised to preserve the power of the court and to vindicate the court's dignity." Id. Thus, in criminal contempt proceedings, it is essential to consider whether the accused intended to undermine this authority. See Potts v. Commonwealth, 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946) ("any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice is contempt") (emphasis added). In the present appeals, it is not contended that the conduct of these attorneys invoked the application of Code § 18.2-456(4) or (5). Therefore, we must decide whether the evidence was sufficient to establish that Singleton and Zedd intended "to obstruct or interrupt the administration of justice." Code § 18.2-456(1).

For more than a century, Virginia courts have required the element of intent in order to sustain a criminal contempt conviction. See Carter v. Commonwealth, 96 Va. 791, 802-03, 32 S.E. 780, 780 (1899); Wise v. Commonwealth, 97 Va. 779, 781-82, 34 S.E. 453, 453-54 (1899); Wells v. Commonwealth, 62 Va. (21 Gratt.)...