Zetty v. Piatt

• Decision Date: 16 July 2001
• Docket Number: No. 144,144
• Citation: 776 A.2d 631,365 Md. 141
• Parties: Terrence Lynn ZETTY, v. Susan M. PIATT.
• Court: Maryland Court of Appeals

776 A.2d 631

365 Md. 141

Terrence Lynn ZETTY, v. Susan M. PIATT.

No. 144, Sept. Term, 2000.

Court of Appeals of Maryland.

July 16, 2001.

David P. Sutton, Baltimore (Arnold P. Popkin, Suitland), all on brief, for petitioner.

Andrew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, Amanda S. LaForge, Staff Attorney, Baltimore and Sue A. Cusick Greer, Assistant County Attorney of LaPlata), all on brief, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

On September 7, 2000, the Circuit Court for Charles County found Terrence Lynn Zetty, appellant,¹ to be in constructive civil contempt of a domestic violence protective order that was issued on April 27, 2000. The Circuit Court found that appellant had violated the protective order by apparently failing to turn in all firearms that were in his possession to the Charles County Sheriff's Office. The Circuit Court sentenced appellant to 179 days of incarceration unless appellant purged the contempt by turning in the firearms or by producing evidence that he was no longer in possession of the firearms. Appellant filed a Motion for Reconsideration, which was denied by the Circuit Court after a hearing.

Appellant filed an appeal to the Court of Special Appeals. We granted certiorari on our own initiative prior to consideration by the Court of Special Appeals. Appellant has presented four questions:

1. Whether Zetty was erroneously held in constructive contempt and incarcerated in violation of his right to counsel[?]

2. Whether the constructive contempt proceeding was without force and effect because initiated by an unauthorized person (police officer in Office of the County Sheriff) who lacked standing to file the contempt petition[?]

3. Whether the order of contempt impermissibly extends beyond the findings made in the antecedent civil proceeding and lacks substantial evidentiary support[?]

4. Whether the overriding criminal character of the contempt proceeding required that Zetty be granted the right to trial by jury and the benefit of the standard of proof beyond a reasonable doubt[?]²

We answer yes to questions one and two and, therefore, we reverse the Circuit Court's finding of contempt. We hold that the Circuit Court did not comply with Maryland Rule 15-206(e), which provides that when incarceration is sought in a constructive civil contempt hearing and an alleged contemnor appears in court without counsel, the court must confirm that the alleged contemnor received a notice of the right to counsel and that the alleged contemnor knowingly and voluntarily waives that right. We also hold that the Charles County Sheriff's Office is not an authorized party, in accordance with Maryland Rule 15-206(b), to file a petition for contempt that initiates a constructive civil contempt proceeding and that alleges a violation of a protective order. We do not need to answer questions three and four.

Facts

On April 20, 2000, Susan M. Piatt filed a Petition for Protection from Domestic Violence under Maryland Code (1984, 1999 Repl.Vol., 2000 Supp.), section 4-504 of the Family Law Article. In the petition, Ms. Piatt alleged that on the previous day appellant had been sitting in his truck in front of the residence that the two of them shared. Ms. Piatt attempted to remove the keys from the ignition of appellant's truck while appellant was seated in the driver's seat because she feared that appellant was under the influence of drugs and alcohol. The petition stated that as Ms. Piatt reached into the truck to take the keys, appellant drove off with her arm still inside the truck causing her arm to strike against the truck as she attempted to remove it. Ms. Piatt also alleged that appellant turned the truck around and accelerated as if he was going to hit her and her father with the truck as they stood on the side of the street. Ms. Piatt stated that she ran into the house and called the police because she was afraid of appellant.

On April 27, 2000, a hearing was held before the Circuit Court for Charles County on Ms. Piatt's Petition for Protection from Domestic Violence. At the end of the hearing, the Circuit Court found by clear and convincing evidence that Ms. Piatt had been placed in fear of imminent serious bodily harm by appellant. The Circuit Court, therefore, entered a protective order. The Circuit Court stated:

I am convinced of that [a fear of imminent serious bodily harm] by clear and convincing evidence and having been so convinced it is my duty to enter a protective order. The protective order that I am going to enter in this case is going to continue—it will begin today and continue for one year. That is it will expire on the 26th day of April in the year 2001.

And the protective order will provide that Mr. Zetty shall not abuse or threaten to abuse Ms. Piatt. That he shall not contact, attempt to contact or harass her. Contact includes contacting her in person, by telephone, in writing or by any other means.

It is going to provide that he is not to come to her residence that they lease on a monthly basis, the residence at 3683 Brookwood Drive in White Plains. I am going to allow her to stay there. And he, Mr. Zetty is not to come to that residence.

He is not to come to her place of employment at 3475 Leonardtown Road in Waldorf. He is to vacate the home at 3683 Brookwood Drive in White Plains and for the remainder of that lease it will be the use and possession of that home will be given to Ms. Piatt.

Mr. Zetty accompanied by law enforcement officers from the Charles County Sheriff's Department may return to that residence to collect his clothing and personal necessities and he may make those arrangements with the Sheriff's Office.

It also is going to provide that he is to surrender all firearms that are in his possession to the Charles County Sheriff's Department for the duration of this protective order.³

Now, this is what is going to happen. The Sheriff is going to serve both of you with a copy of this order. The Sheriff for Charles County is going to keep a copy of the order. If there is a violation of the order then you should contact the Sheriff, tell them that the order is being violated and they will respond to it.

They have the authority to arrest somebody for violating this order and to put them in jail. If there is a violation of the order you can also file a petition for contempt and if after a hearing I find that there has been a violation of the order I can sentence someone to serve up to 90 days in jail and fine them up to $500 for each violation. It is my order. The only way I have to enforce it is to enforce it by contempt. If either of you violate it there is a very good probability that I will put you in jail for the period of time that I am permitted to do. [Emphasis added.]

On May 5, 2000, Corporal J.C. Holter of the Charles County Sheriff's Office contacted appellant to find out if appellant had any firearms to surrender pursuant to the protective order entered by the Circuit Court. Appellant informed Officer Holter that he was not in possession of any firearms. Officer Holter then contacted the Maryland State Police and requested that they run a search on the Maryland Automated Firearms Services System database to check whether appellant had any firearms registered in his name. The search revealed that, as of at least June 18, 1997 (some thirty-four months prior to the entry of the protective order), appellant had nine firearms legally registered in his name.

On August 31, 2000, Officer Holter filed a Petition for Contempt in the Circuit Court for Charles County. The petition stated that Officer Holter was the petitioner and that Mr. Zetty⁴ was the respondent. The petition alleged that Officer Holter had contacted appellant about surrendering any firearms that appellant had in his possession and that appellant told Officer Holter that he did not have any firearms. This statement, it was alleged, was contrary to the information provided to Officer Holter by the Maryland State Police that indicated that appellant had nine firearms registered in his name. On September 1, 2000, the Circuit Court, pursuant to the petition filed by Officer Holter, issued a Show Cause Order requiring appellant to appear before the Circuit Court and show cause as to why he should not be found in contempt of the protective order for failing to give his firearms to the sheriff's office.

On September 7, 2000, a hearing was held on the Petition for Contempt before the Circuit Court. Appellant appeared but was not represented by counsel. Officer Holter testified that he had contacted appellant about turning in any firearms to the sheriff's office in compliance with the protective order. Officer Holter stated that appellant told him in a phone conversation that he did not have any firearms, even though the Maryland State Police informed Officer Holter that appellant had nine firearms registered in his name.

Appellant testified at the contempt hearing that he had no recollection of ever speaking to a police officer about possessing firearms. Appellant did not deny that he had owned the firearms listed on the report from the Maryland State Police; however, appellant stated that the firearms and their identifying documents were stolen from his residence in March of 1998, approximately two years before the protective order was entered. Appellant testified that he reported that the firearms had been stolen to the Prince George's County Police Department, but that the police department was unable to provide him with any assistance in locating the firearms.

At the conclusion of the contempt hearing, the Circuit Court sentenced appellant to 179 days of incarceration; however, the incarceration could be purged. The Circuit Court stated that:

I find you in contempt and commit you to jail for a period not to exceed a period of 179 days. You can purge

...