Consecutive Sentences for Criminal Contempt

One of the first posts I wrote on this blog was about the punishment for criminal contempt. The post included a discussion about whether sentences for contempt could be run consecutively—something our appellate courts hadn’t yet ruled on at the time. In State v. Burrow, decided last week, the court of appeals approved a trial court’s orders sentencing a defendant to six consecutive 30-day terms of imprisonment for contempt.

Burrow involved a defendant tried and convicted for attempted felony breaking or entering. He was also convicted of being a habitual felon, raising the punishment class for the attempted breaking or entering from Class I to Class E. The jury found an aggravating factor. The judge found that it outweighed the lone mitigating factor and sentenced the defendant from the top of the aggravated range for Prior Record Level VI: 63–88 months.

In addition to the felony sentence, the court entered six orders finding the defendant guilty of direct criminal contempt. The appellate opinion in Burrow doesn’t give much detail about what happened, but the trial court orders themselves, available as part of the appellate record, do.


The defendant did not challenge the substance of the contempt orders on appeal (indeed, the judgments imposing the contempt indicate that he pled guilty to it). He did not complain, for example, that his multiple uses of profanity were all part of a single contempt. Cf. United States v. Murphy, 326 F.3d 501 (4th Cir. 2003) (holding, under federal law, that the defendant’s outburst in which he called the judge a “stinky mother fucker,” a “mother fucker,” and gave the judge the finger was one contempt offense, not three). He did, however, argue that the trial court erred by ordering six 30-day sentences to run consecutively. The orders are indeed set up to one run at the expiration of the next, with the first contempt sentence beginning at the expiration of the defendant’s felony term.

The defendant’s argument started with the premise that contempt is a crime. It doesn’t meet any of the definitions of a felony in G.S. 14-1, so, under that same statute, it must be a misdemeanor. If it’s a misdemeanor, the argument continues, it’s an unclassified one, and that means its offense class is determined by reference to G.S. 14-3. That law says that an unclassified misdemeanor with a maximum punishment of 30 days or less is Class 3. And finally, if it’s a Class 3 misdemeanor, under G.S. 15A-1340.22(a), consecutive sentences may not be imposed.

The court of appeals disagreed, essentially rejecting the argument at step one. As a matter of North Carolina case law, contempt is not a misdemeanor. It is, rather, sui generis (of its own kind or class)—“essentially criminal or quasi-criminal,” Blue Jeans Corp. of Am. v. Amalgamated Clothing Workers, 275 N.C. 503 (1969), but neither felony nor misdemeanor. That being the case, the limit on consecutive sentences for Class 3 misdemeanors does not apply. With no other limitation set out in Chapter 5A or elsewhere, consecutive sentences are permitted.

Burrow brings clarity to a question that comes up pretty often—although when I am asked, it’s usually about criminal contempt for multiple failures to pay child support, not for using profanity in court. I have a few other thoughts related to the case, one technical and two substantive.

First, on the technical side, I noticed that the judgments for the contempt are entered on Structured Sentencing misdemeanor judgment forms. There’s a touch of irony there, considering that the court of appeals opinion turned on contempt not being a misdemeanor. I don’t think the use of that form makes any difference as a substantive matter (between the judgment forms and the related court orders, all of the necessary findings are in place). I did, however, want to take an opportunity to point out that AOC-CR-390 is designed specifically with this sort of contempt in mind.

Substantively, I can imagine that some may feel a tension between Burrow and cases like Blue Jeans Corp. and State v. Reaves, 142 N.C. App. 629 (2001). The Burrow court cited those cases in support of its conclusion that contempt is not a misdemeanor, and that the consecutive sentence limitations for misdemeanors therefore don’t apply. But those earlier cases arguably stand for the proposition that contempt is something less than a misdemeanor, with Blue Jeans Corp. holding that the possible punishment for contempt is short enough for it to be a “petty offense” with no jury trial right, and Reaves concluding that contempt convictions don’t count for prior record points under Structured Sentencing. In Burrow, by contrast, contempt’s non-misdemeanor status clearly wound up working to the defendant’s disadvantage.

Finally, note that contempt sentences stacked to form a total sentence in excess of 180 days could trigger a defendant’s Sixth Amendment right to a jury trial. In general we do not aggregate sentences for otherwise petty offenses when evaluating that right. See Lewis v. United States, 518 U.S. 322 (1996). But the Supreme Court has identified a special rule for certain contempt proceedings. See Codispoti v. Pennsylvania, 418 U.S. 506 (1974) (holding a defendant was entitled to a jury trial when multiple counts of contempt were adjudicated together at the conclusion of a trial, resulting in consecutive sentences totaling more than 6 months). See generally Julie Ramseur Lewis & John Rubin, N.C. Defender Manual, Vol. 2, Trial (2d ed. 2012), at § 24.1.B.  The aggregate sentence in Burrow did not exceed 180 days, but anything more could have raised a constitutional issue.

5 thoughts on “Consecutive Sentences for Criminal Contempt”

  1. I was the trial counsel for Mr. Burrow. Without warning, he digressed into his multiple soliloquy of f bombs. As he was speaking, I tried to figure what if anything I could do. When sentencing came around, I had recently downloaded the Superior Court Bench Book and there was a chapter on contempt with language wondering if multiple consecutive sentences could be imposed. So, I argued based on this notion that contempt was a class 3 misdemeanor that consecutive sentences could not be imposed. Unfortunately, Judge Stuart Albright shared the same sentiments as the Court of Apoeals.

    • It is my own ‘opinion’ that many Judicial Officials ‘create laws’ out of thin air (Lex Non Scripta). What is the ‘appropriate relief’ (remedy) if by chance my ‘opinion’ is correct?

      Many ‘non-trained’ orators (and some well trained as well (Including Judges, Legislatures, Governors, etc etc) use ‘expletives’ (Including the ‘Fbomb) in their everyday language and don’t share the ‘opinion’ that they are ‘profane’ (‘Unholy’) words.

      Average people (Untrained actors) that don’t engage in ‘politically correct’ public speeches as a way of life are prone to use such ‘strong language’ without thought when under stress. I personally am an example of such a person, and most definitely would fit into a category of ‘untrained professional orator’ (IE Not fit for ‘public (politically or religiously correct) speech’.

      I could agree that the person lost their composure, and knew or should have known that their ‘actions’ (in this case strong words) could lead to ‘negative sanctions’, but I feel the Court has gone to far.

  2. In other words a person can spend his life in prison for contempt of court without trial, representation, nor any criminal nor civil charges. That negates the whole US Constitution and the Whole North Carolina Constitution. I read in the US Constitution that any act by a person holding political position (judge) that nullifies or negates the Constitution is an act of high treason, as defined in the Constitution. It is the opinion of this writer that judges writing their own laws are committing high treason. Consecutive sentences for contempt gets around the 12 month limit; and is definitely a nullification of both Constitutions and is high treason by any judge affirming it. They should know better and should be recalled from the bench before there is no law other than the whims of those sitting on the bench.

  3. Are there any judges today that do not make up their own law, while trashing the federal and state constitutions and federal and state laws? Is there a solution when a person is unable to pay an unjust and illegal court order that is handed out apparently to obtain a failure to pay contempt of court and its open ended sentencing? NC judges have a history of making up their own laws and punishing litigants with psychotronic weapons in their courtrooms, while holding litigants in contempt who fail to appear fearing for their lives after being so subjected by a judge. Is there a legal solution to being forced out of your home under such legal threats from the court, while the results are the destruction of home and real estate and personal property in the millions of dollars; while judges sit in contempt of the laws and constitutions?


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