Unger v. Commonwealth, Record No. 2196-14-2

CitationRecord No. 2196-14-2
Case DateDecember 22, 2015
CourtCourt of Appeals of Virginia


Record No. 2196-14-2


DECEMBER 22, 2015


Present: Judges Decker, Russell and AtLee
Argued at Richmond, Virginia


Melvin R. Hughes, Jr., Judge

Dorian Dalton, Senior Assistant Public Defender, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Ashley Unger appeals her conviction for criminal contempt of court. The appellant was originally convicted in a summary proceeding in the general district court and appealed to the circuit court. She contends that because her conduct did not occur entirely in the presence of the district court, she could not properly be punished summarily. Accordingly, she suggests that the circuit court should have dismissed the contempt adjudication. She also argues that the circuit court erred in refusing to allow her to present evidence. We hold that the denial of the appellant's motion to dismiss was not error on the facts of this case. We further conclude that the appellant was entitled to present evidence in the circuit court. Therefore, we reverse the appellant's conviction and remand the case to the circuit court for additional proceedings consistent with this opinion at the discretion of the Commonwealth.

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In August 2014, the appellant appeared in the district court on a marijuana possession charge that had previously been taken under advisement. The court summarized the proceedings in an order as follows:

There was a report from [the Virginia Alcohol Safety Action Program (VASAP)] that stated [the appellant] tested positive for amphetamines . . . . Based on this, [the judge] put the [appellant] under oath and the [appellant] stated she would not test positive for any illegal substances. The [appellant] was taken to the lock up for drug testing. The deputy trying to administer the test stated that the first time [the appellant] spilled her urine . . . from the test in the lock up and the second time [she] adulterated her urine sam[ple] by pouring water in her sample cup.

In a summary proceeding pursuant to Code § 18.2-456, the district court found the appellant guilty of criminal contempt for "interrupt[ing] and hinder[ing] the administration of justice." It sentenced her to ten days in jail.

The appellant appealed her contempt conviction to the circuit court, where she made a motion to dismiss the conviction on due process grounds. She argued that the district court's exercise of its contempt power in summary fashion, without notice and a separate hearing, violated her due process rights because not all essential elements of the misconduct occurred "in the presence of the [district court] judge . . . under the eye of the court." She contended that the error could not be adequately remedied in the circuit court because the statutory scheme did not permit her to have a true trial de novo in that court. The circuit court denied the motion to dismiss.

The court then found the appellant guilty of contempt as defined in Code § 18.2-456 and asked the prosecutor if he had any argument on disposition. The prosecutor responded that the finding of guilt was premature. He noted, "I think procedurally we need to go forward . . . somewhat like a trial," and he moved the court to admit the evidentiary summary contained in the district court's order. The prosecutor argued that the summary was admissible because it

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constituted "the certificate" under Code § 18.2-459 that recounted the evidence from the district court. The appellant conceded that she was not entitled to confront the district court judge who was essentially serving as a witness by means of the certificate. She argued, however, that the certificate contained the statements of a deputy and a VASAP official and that admitting the certificate without allowing her to confront the makers of those statements violated her constitutional rights.

The circuit court ruled based on the certificate, "the only evidence . . . before the Court," that the appellant was guilty of contempt. The judge again asked the prosecutor for "[a]ny argument on disposition." The appellant objected that the court had "not afforded [her] the opportunity to present any evidence." The judge responded, "This statute . . . [refers to] [l]egal testimony. I think legal testimony is argument, and you've made that." The circuit court sentenced the appellant to pay a fine of $100.


The appellant contends that because her conduct did not occur entirely in the presence of the district court, she was entitled to certain due process protections and could not be punished summarily. She argues that the circuit court should have dismissed the contempt finding because she did not receive those protections in the district court. She also asserts that the circuit court erred by refusing to allow her to testify and present evidence in her appeal to that court. For the reasons that follow, we hold that the appellant's assignments of error are properly before the Court and that reversal and remand to the circuit court are required.

A. Legal Framework

The common law defines contempt and establishes the inherent power of courts to punish it. E.g., Parham v. Commonwealth, 60 Va. App. 450, 456-57, 729 S.E.2d 734, 736-37 (2012). Nevertheless, the General Assembly is authorized to regulate the courts' exercise of that power. Va. Const. art. IV, § 14. This legal framework is affected by constitutional due process doctrine that

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recognizes two forms of criminal contempt—direct and indirect. See, e.g., Scialdone v. Commonwealth, 279 Va. 422, 442-43, 689 S.E.2d 716, 727-28 (2010).

Controlling constitutional principles provide that direct contempt, also called summary contempt, occurs "when the contemptible conduct 'is committed in the presence of the court.'" Id. at 442, 689 S.E.2d at 727 (quoting Burdett v. Commonwealth, 103 Va. 838, 845-46, 48 S.E. 878, 880-81 (1904)). Because the act occurs in the court's presence, "the court 'is competent . . . to proceed upon its own knowledge of the facts, and to punish the offender without further proof, and without issue or trial in any form.'" Id. at 442-43, 689 S.E.2d at 727 (quoting Burdett, 103 Va. at 846, 48 S.E. at 881). Direct contempt, therefore, describes "a narrowly limited category of contempts" that may be punished summarily. Id. at 443, 689 S.E.2d at 728 (quoting In re Oliver, 333 U.S. 257, 275 (1948)); see id. at 444, 689 S.E.2d at 728 (observing that "'the judge is his own best witness of what occurred' and that the use of the testimony of other witnesses precludes the use of summary contempt" (quoting United States v. Marshall, 451 F.2d 372, 374 (9th Cir. 1971))).

Constitutional principles further instruct that contempt is indirect, by contrast, "[i]f some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others." Id. at 443-44, 689 S.E.2d at 728 (quoting Oliver, 333 U.S. at 275). In the case of indirect contempt, the accused must be advised of the charges against her, be afforded the right to legal representation, and "have a chance to testify and call other witnesses in [her] behalf." Id. at 443, 689 S.E.2d at 728 (quoting Oliver, 333 U.S. at 275). Indirect contempt proceedings generally also include the right to cross-examine adverse witnesses, although this right derives from due process rather than from the Confrontation Clause. See Gilman v. Commonwealth, 275 Va. 222, 228, 657 S.E.2d 474, 476 (2008) (citing U.S. Const. amend. VI); Parham, 60 Va. App. at 458, 729 S.E.2d at 737.

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District and circuit courts have statutory authority to punish summarily the common-law categories of contempt set out in Code § 18.2-456. See Code §§ 16.1-69.24, 18.2-456 to -458; Parham, 60 Va. App. at 458-59, 729 S.E.2d at 738.1 This statutory authority is limited by federal constitutional principles that require broader due process protections for contempt defined as indirect at common law. See, e.g., Scialdone, 279 Va. at 442-43, 689 S.E.2d at 727-28.

B. Procedural Bar

The appellant contends that the circuit court erred in not dismissing the district court contempt finding because, although her contempt was indirect, the district court provided her with only a summary proceeding. The Commonwealth suggests that the appellant waived her right to challenge this ruling because she did not argue in the circuit court, and does not assert in this appeal, that Code § 18.2-456 is unconstitutional or that the evidence was insufficient to support her conviction. We hold that the appellant's objections in the circuit court were sufficient to place that court's ruling on her motion to dismiss before this Court on appeal.

Rule 5A:18 provides in relevant part that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling." In determining whether a litigant has satisfied the requirements of the rule, Virginia's appellate courts have "consistently focused on whether the trial court had the opportunity to rule intelligently on the issue." Scialdone, 279 Va. at 437, 689 S.E.2d at 724. In addition, "a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding." Id. (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).

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The appellant's actions met the requirements of Rule 5A:18. She argued that her due process rights under the Federal and State Constitutions were violated in the district court because she was not given notice and a fair hearing, including the opportunity to prepare a defense, cross-examine witnesses, and present evidence. The circuit court judge summarized the...

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