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. Continue reading
Tag Archives: contempt
Courts around the country have struggled to address inappropriate cell phone usage by jurors. Some judges have used their contempt powers to deal with the issue. In Oregon, a judge held a juror in contempt for texting during a trial, and the juror spent a night in jail as a result. In Florida, a judge cited a juror for contempt for using Facebook during trial. And now, the issue has cropped up here in North Carolina. Last week, Superior Court Judge Milton “Toby” Fitch held a juror in a civil case in contempt for using his cell phone to take notes about the trial, and sentenced the juror to 30 days in jail. The Wilson Times has the story here. The News and Observer has an AP story with some additional details here. Continue reading →
The murky law of contempt — particularly the distinction between civil and criminal contempt — got even more confusing last month with the Court of Appeals’ decision in Tyll v. Berry. The court said that civil contempt may include a fine, not just imprisonment, and can require the fine to be paid to a private party, not to the state. All this is new and different from what we have been teaching about the law of contempt.
Civil vs. criminal contempt
Let’s start with a refresher on the difference between criminal and civil contempt. Criminal contempt is a sanction for one of the specified acts in G.S. 5A-11, the most common being refusal to obey a court order, disrespect to the court, and failing to follow court schedules. Criminal contempt is used when the contemptuous act has already occurred, is completed, and the court wants to punish the offender. The punishment generally is limited to a $500 fine and/or jail for up to 30 days.
Civil contempt, on the other hand, is intended not to punish the offender but to force the person to comply with a court order. The only act for which civil contempt may be applied is the ongoing violation of a court order and the only sanction, we thought, was for the person to be jailed until they complied. Every civil contempt order has to include a “purge” provision, that is, a clear statement as to what the person has to do to get out of jail. If the contempt was for failure to pay child support, for example, the purge would be to catch up on payments. If the contempt was for refusal to sign over a deed, the purge would be to sign the document.
Joey Berry’s civil contempt
Joey Berry was in contempt for violating a Chapter 50C no-contact order. The district court judge ordered that Berry be locked up for contempt until he purged the contempt by paying $2,500 to the Tylls. The order also said he would be fined an additional $2,500 for each future violation of the no-contact order, apparently for as long as the no-contact order remains in effect. Although the trial court did not specify whether it was using civil or criminal contempt, the Court of Appeals treated it as civil and concluded that the $2,500 fine was lawful.
Lawyers and trial judges often fail to articulate whether they are talking about criminal or civil contempt. One might have thought that Joey Berry was being found in criminal contempt. Civil contempt is supposed to be used to make someone comply with a court order, to do something they were already ordered to do but haven’t done yet; thus it does not really work when the order being enforced forbids the person from doing something. If someone is ordered to not contact someone else, how do you lock them up until they comply by not contacting that other person? If what the court really wants to do is punish the person for disobeying the order sometime in the past, that’s criminal contempt, not civil.
Nevertheless, the Court of Appeals concluded that the trial court was holding Berry in civil contempt. It did so because the Tylls had initiated the proceeding by filing a motion under the procedures of G.S. 5A-23, the civil contempt statutes; the judge’s findings recited the statutory conditions for civil contempt (order still enforceable, willful disobedience, etc.); the judge called the $2,500 payment a “purge”; and the transcript indicated the judge was struggling to find a way to get Berry to comply with the no-contact order.
“As for contempt”
The no-contact statute, G.S. 50C-10, says that a violation is punishable as contempt but does not say whether it’s criminal or civil. In deciding that it is civil, the Court of Appeals cited G.S. 5A-25 which says that “whenever the laws of North Carolina call for proceedings as for contempt, the proceedings are those for civil contempt. . . .” (emphasis added). It appears that the court took that statute to mean that whenever another statute fails to specify whether the contempt is civil or criminal then it is civil. The statute actually is narrower than that.
The key is the term “as for contempt.” Until contempt law was recodified as Chapter 5A in 1977, “as for contempt” was the term of art for civil contempt. In other words, before Chapter 5A was enacted, “contempt” or “for contempt” meant criminal contempt and “as for contempt” meant civil contempt. All that G.S. 5A-25 says is that if there is an old statute that still uses the term “as for contempt” it means civil contempt. But G.S. 50C-10 does not use the term “as for contempt,” it simply says that violation “is punishable as contempt of court,” so it is difficult to see how G.S. 5A-25 helps in construing its meaning.
Given the appellate court’s reading of G.S. 50C-10 and G.S. 5A-25, specifically its determination that “contempt” in G.S. 50C-10 means civil contempt, it appears that criminal contempt is no longer available to punish the violation of a no-contact order.
A fine for civil contempt
More surprisingly, once the Court of Appeals decided that Berry was being held in civil contempt it approved the imposition of the $2,500 fine as a sanction. The only sanction stated in the civil contempt statute, G.S. 5A-21(b), is that the person be “imprisoned as long as the contempt continues.” In approving the use of a fine against Berry, the Court of Appeals quoted several earlier appellate opinions — Jolly v. Wright, 300 N.C. 83 (1980); Oakley v. Oakley, 165 N.C. App. 859 (2004); Reece v. Reece, 58 N.C. App. 404 (1982); Bishop v. Bishop, 90 N.C. App. 499 (1988) — all of which refer to fines for civil contempt. In none of those cases, however, did the trial court actually impose a fine.
It looks, therefore, like Tyll v. Berry is the first instance of a North Carolina appellate court approving the actual imposition of a fine for civil contempt. We have been teaching judges that fines are not allowed, that a fine is punishment and is inconsistent with the purpose of civil contempt. We’ll now tell them they have another option.
The fine as a purge condition
The trial judge made payment of the $2,500 fine a purge condition. This does not fit with the idea that a purge condition has to be tied to the original order being enforced by contempt. That is, because the purpose of civil contempt is to force compliance with a court order, not punishment, a proper purge was thought to be something essential to the original order. For example, if a judge was jailing someone for civil contempt for not complying with an order to sign over a deed, the only appropriate purge condition would be to sign the deed, that’s the only act that would achieve compliance with the original order. Based on Tyll v. Berry it appears that a purge condition may be something independent of complying with the original order.
In allowing a purge condition that adds to the original court order the payment of a fine, the Court of Appeals notes that earlier decisions have allowed trial judges to add payments of attorney fees as a part of civil contempt. It is indeed correct that attorney fees have been approved as part of civil contempt in some categories of domestic cases, as an exception to the general rule that attorney fees are not allowed in contempt. Fees have been allowed in civil contempt proceedings for failure to pay child support or alimony or noncompliance with an equitable distribution order. The basis for allowing attorney fees in those kinds of cases generally has been that such fees can be awarded for the underlying action resulting in the order being enforced by contempt and, therefore, are appropriate for enforcement of the order as well. The fine allowed by Tyll v. Berry, though, does not appear to be linked to the original action in any way, apparently opening the door for a new category of sanctions.
Another unusual aspect of the $2,500 fine as a purge condition is that it continues indefinitely into the future, as long as the no-contact order is renewed. The “purge” might arise two years from now if the no-contact order has been renewed and Berry makes a prohibited contact. That sounds different than what we’ve thought a purge was.
A fine that doesn’t go to the schools
To distinguish cases holding that civil contempt may not include an award of costs or damages, the Court of Appeals made clear that the $2,500 represented a fine rather than compensation to the Tylls for any loss or injury they suffered or their costs. It is not obvious how that distinction fits under Article IX, § 7 of the State Constitution. That is the section requiring that the proceeds of all fines and forfeitures go to the public schools, and it’s been the subject of considerable litigation over the last several decades. In those cases the courts seem to have recognized a dichotomy between restitution and penalty. If the money is to be paid to a party and is intended to compensate them for a loss, it is restitution; otherwise it is a penalty and belongs to the schools.
What, though, about a “fine” that is specifically held not to be restitution, to not be for the purpose of compensating a party, but is paid to a private individual rather than to the state? This looks like a new animal and it will not be surprising to see school boards contend that the constitution requires the money to be paid to them.
All in all, then, Tyll v. Berry, is an intriguing and apparently groundbreaking decision. The case itself was remanded to district court because the judge failed to include a finding that Berry had the present ability to pay the $2,500. Regardless of what finally happens to Mr. Berry, though, the decision seems to create a new range of monetary penalties for civil contempt. Even though it appears criminal contempt will no longer be available for violations of no-contact orders, the new, expanded civil contempt option should be attractive to trial judges. If the judge had found Berry in criminal contempt for his past violation of the no-contact order, the maximum fine would have been $500 and the maximum imprisonment would have been 30 days. Instead, by using civil contempt, the judge was able to fine him $2,500 (and apparently more, if the judge had wanted) and have him imprisoned indefinitely until he paid — even though the sanction really is for a past violation of the no-contact order rather than ongoing disobedience.
(A summary of the law of contempt, not yet revised to account for Tyll v. Berry, can be found on the School of Government’s Judicial Authority and Administration website.)
Sentences for criminal contempt may be suspended. That has been understood as a matter of case law for a while, see Bishop v. Bishop, 90 N.C. App 499 (1988), and it became clear as a matter of statute for some contemnors in 2009 with the addition of G.S. 5A-12(a)(3), S.L. 2009-335. That subdivision allows a judge a term of imprisonment of up to 120 days (instead of the ordinary limit of 30 days) for a failure to pay child support, provided that the sentence is suspended.
The question is, what is the nature of that suspended sentence? Does it include the regular conditions of probation applicable by default under Article 82 of G.S. Chapter 15A? May it include supervision by a probation officer? As I sometimes put it, is probation for contempt Probation with a capital P?
I don’t think there’s a clear answer.
The contempt punishment statute doesn’t actually use the word “probation,” but it does refer to suspending a sentence. In general, North Carolina long ago moved away from the notion of a “suspended sentence without probation.” See Official Commentary to G.S. 15A-1341 (“Subsection (b) specifies both supervised an unsupervised probation. These two categories replace the present [circa 1977] probation and release on suspended sentence; in this Article unsupervised probation is the equivalent of the present release on suspended sentence without probation.”). With that in mind, the reference to a suspended sentence is pretty much the same as saying “probation.”
But even if it is, I don’t think it necessarily follows that Article 82 kicks in. To the contrary, G.S. 15A-1341(a), which sets out the scope of Article 82, says that defendants may be “placed on probation as provided by this Article ” if (a) they are being sentenced under Structured Sentencing and the grid allows for probation, or (b) they are being sentenced for impaired driving. There is no mention of contempt. If you read that statute as an inclusive list of when Article 82 applies, then it arguably does not apply in contempt cases.
On the other hand, in the absence of any particular guidance in Chapter 5A, Article 82 of Chapter 15A makes a nice gap filler. That’s the logic the court of appeals used in State v. Burns when it held that regular probation procedures apply to G.S. 90-96 probation in the absence of some provision to the contrary. 171 N.C. App. 759, 761 (2005) (“In the absence of specifically enumerated procedures, those procedures set forth in Article 82 of Chapter 15A of our General Statutes regarding probation violations should apply.”). The question has never been squarely before the appellate courts, but they haven’t had much trouble citing to Article 82 statutes when evaluating probation imposed for contempt. See, e.g., State v. Key, 182 N.C. App. 624 (2007) (citing to G.S. 15A-1343(b1)(10)); Bishop, 90 N.C. App. at 506 (1988) (citing to G.S. 15A-1343 and G.S. 15A-1342(b)).
Whether a judge may order supervision by a probation officer in a contempt case is a particularly sticky question. Citing to G.S. 15A-1341(b), the court of appeals once wrote that contempt sentences may be “suspended for a term of probation, supervised or unsupervised.” Reynolds v. Reynolds, 147 N.C. App. 566, 572 (2001). That seems straightforward enough, but it wasn’t the ultimate issue in the case. Just last week in State v. Jordan the court of appeals affirmed a contempt sentence that included supervised probation, but there was no comment on that aspect of the sentence in the unpublished decision. Perhaps the best argument that supervised probation should not be ordered for contempt comes from State v. Gravette, 327 N.C. 114 (1990). In Gravette, the supreme court concluded that a judge could not—pursuant to G.S. 15A-1341 or as a matter of inherent authority—order a probation officer to supervise a pretrial defendant. To the extent that G.S. 15A-1341 makes no reference to contemnors, there is an argument that they should not be supervised either. In light of Gravette, Community Corrections disfavors supervising contemnors.
What procedures apply to violations of suspended contempt sentences? Do all the rules in G.S. 15A-1345 regarding jurisdiction and timing and bail and preliminary hearings apply? What about the Justice Reinvestment limitations on revocation authority? It’s hard to square some of those provisions with contempt because it is neither a felony nor a misdemeanor. State v. Reaves, 142 N.C. App. 629 (2001) (holding that contempt convictions do not count as prior convictions under Structured Sentencing). But even if the statutory probation violation procedures don’t apply to contempt, the constitutional due process principles on which those statutes are based surely require a similar type of notice and hearing before any suspended contempt sentence may be activated.
I realize that to this point I’ve raised more questions than answers about probation for contempt. Some issues—and some blog posts—are like that. The least I can do is conclude with a few practical thoughts.
First, given all the ambiguities set out above, a judge who wishes to suspend a contempt sentence should be clear about his or her intentions in the case. If, for example, the judge intends for the defendant to be subject to all of the regular probation conditions of G.S. 15A-1343(b), then he or she should say so. I don’t think the court should assume that they will apply by default even if not said aloud in court, as they would in an ordinary criminal case. Along the same lines, the judge would likely need to use a judgment form that lists all of the desired conditions; the conditions probably are not enforceable if the defendant does not receive them in writing. With some minor modifications, form AOC-CR-604 would probably do the trick. Finally, in light of all the ambiguities discussed above, judges and prosecutors may wish to consider a remedy other than contempt. In the child support context, a conviction for misdemeanor nonsupport under G.S. 14-322 provides a much clearer path to supervised probation—if that is the punishment the judge has in mind.
Two cases this month from the Court of Appeals, one published and one not, offer different perspectives on the meaning of an appeal for a “trial de novo” in superior court. Neither of the cases speaks directly to what a trial de novo is, but they offer an opportunity to think about the difference between an ordinary appeal and an appeal for a trial de novo. It also is an opportunity to note that lawyers and courts seem to confuse the concept of trial de novo when it comes to appeals of contempt.
To remind you, misdemeanors are first tried before a judge in district court. If the defendant is acquitted, that’s the end of the case. If convicted, the defendant may appeal to superior court for a trial de novo, this time with a jury. The state saves considerable money and time in prosecuting misdemeanor cases because the district court trial is without a jury or court reporter and most defendants accept the verdict there, while the constitutional right to a jury is preserved by the option of carrying the case to superior court.
But what exactly is a trial de novo? It doesn’t take much Latin to understand that de novo means new, so the concept is a new trial. It’s still an appeal, though, so does that limit how new the new trial is to be?
The answer is no. The most commonly stated explanation of appeal to superior court for a trial de novo is that “it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507 (1970). Or, put another way, “The judgment appealed from is completely annulled and is not thereafter available for any purpose.” Id. The appeal to superior court, unlike an appeal to the Court of Appeals or Supreme Court, is not an appeal on the record. It is not an appeal based on error in the district court; it is an appeal of right. The appeal is available even if the defendant pled guilty in district court. “It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of the District Court.” State v. Brooks, 287 N.C. 392, 405 (1975).
The United States Supreme Court has characterized the verdict in the lower court in a trial de novo system as “no more than an offer in settlement” of the state’s case. Colten v. Kentucky, 407 U.S. 104, 119 (1972). The defendant is free to either accept the offer or appeal and seek the decision of a jury in superior court. As the North Carolina Supreme Court has said:
The purpose of our de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a ‘speedy trial’ in the District Court and to offer them an opportunity to learn about the State’s case without revealing their own. In the latter sense, this procedure can be viewed as a method of ‘free’ criminal discovery.
Brooks, 287 N.C. at 406.
Because the appeal is a trial de novo and the slate is wiped clean of the district court proceedings, the superior court may impose a harsher sentence than the defendant received below. Colten v. Kentucky, supra; State v. Sparrow, supra. The defendant may not be questioned about having pled guilty in district court. State v. Overby, 4 N.C. App. 280 (1969). Nor may the defendant be asked about failing to testify in district court. State v. Ferrell, 75 N.C. App. 156 (1985). On the other hand, the state is no longer bound by a plea bargain which allowed the defendant to plead to a lesser charge in district court; it may proceed on the original charge in superior court. State v. Fox, 34 N.C. App. 576 (1977).
Remember that the appeal for trial de novo to superior court is an appeal as a matter of right; it is not based on legal error in the district court. Consequently, procedural defects in the district court, even constitutional violations, are irrelevant to the new trial in superior court. Thus, for example, it does not matter whether the defendant was denied the right to introduce evidence in district court; the trial de novo provides that opportunity and preserves the defendant’s rights. State v. Williams, 41 N.C. App. 287 (1979).
Now, to this month’s two opinions from the Court of Appeals. The first, State v. Macon, is consistent with all we have just said about the meaning of a trial de novo. Macon — about which my colleague Shea Denning already has blogged for other reasons — actually was about a mistrial and whether at the new trial the judge was bound by a ruling of the judge in the first trial on jury instructions. The Court of Appeals said no, the rule about one trial judge not overruling another (discussed in excruciating detail in this bulletin), did not apply in this situation because “’the new trial is “[a] trial de novo, unaffected by rulings made therein during the [original] trial.”’” (quoting Burchette v. Lynch, 139 N.C. App. 756, 760 (2000)). That explanation of a trial de novo following a mistrial is exactly what one would expect from the case law about trial de novo on appeal to superior court.
The second Court of Appeals opinion, the unpublished one, however, is hazier on the trial de novo concept. In re Foster involved an Asheville lawyer who apparently missed all those classes on professionalism and civility and also apparently learned just enough about the First Amendment to think she could say anything she wanted anytime she wanted. She got this case started by repeatedly cursing a magistrate at the county jail, generously mixing in the f-word with other insults. The magistrate responded by summarily holding the lawyer in criminal contempt (and then overreacted by setting a $10,000 cash-only bond when the lawyer announced she was appealing the contempt).
Under the criminal contempt statutes an appeal from a magistrate is to superior court for a hearing de novo. That is, a new trial altogether. When the appeal went to superior court, however, the testimony covered the magistrate’s behavior as well as that of the lawyer, including whether the magistrate had warned the lawyer about being held in contempt and given her a chance to respond. Even when direct criminal contempt is being dealt with summarily, the judicial official has to pause, tell the defendant that contempt is on the table, and give the defendant a chance to respond why sanctions should not be imposed.
The superior court found the lawyer in contempt, but the Court of Appeals reversed. It did so because the magistrate failed to give the lawyer the opportunity to say why contempt sanctions should not be imposed. But missing from the briefs and from the opinion is discussion of why the magistrate’s handling of the contempt mattered if the lawyer got a hearing de novo in superior court. Remember, an appeal to superior court for a trial de novo is not an appeal on the record, it is not based on error by the magistrate. It is an altogether new proceeding, one purpose of which is to protect any rights denied at the original hearing. The defendant lawyer’s right to explain why contempt was not appropriate was preserved by the new hearing in superior court.
The unusual circumstances of Foster probably explain why the Court of Appeals viewed the appeal to superior court more like an appeal on the record than a de novo proceeding. Upon being held in contempt by the magistrate on Saturday evening the lawyer was taken straight to jail and could not post the $10,000 cash bond. She remained locked up until the bond was changed Monday morning by a judge. Thus, even though the subsequent contempt hearing in superior court was de novo, she already had served part of the five-day contempt sentence. Indeed, when the superior court found her in contempt the judge ordered that she be jailed for 48 hours but then gave credit for that amount of time already served.
Given those facts, it is not surprising that everyone involved in the appeal to the Court of Appeals focused on the propriety of the magistrate’s original decision on contempt rather than on the de novo aspect of the superior court proceeding. Still, the case creates some confusion about the meaning of an appeal for a trial de novo. And it reinforces my perception that lawyers handling appeals of contempt from magistrates and district court often want to argue about the procedure followed by the magistrate or district judge even though the superior court hearing is de novo. Apparently it is the immediacy of the contempt sanction, the fact that the offender may have already sat in jail for a while, that triggers the sense that one cannot really start over.
(As a footnote, a bill pending in the General Assembly would require review of the bail bond within 24 hours of the defendant being jailed for criminal contempt. The bill met the crossover deadline and remains eligible for final action this session.)
A couple of this blog’s recent Friday News Roundups have linked offbeat stories about contempt and cellphones. In the first a Michigan judge held himself in contempt and ordered a $25 fine when his cellphone rang in court. The second story was the federal Sixth Circuit upholding a 30-day contempt sentence for a courtroom spectator caught texting in federal district court. Actually it was more than that, as he later admitted to also using his phone to photograph his friend being sentenced. After all, what are friends for?
Some readers might be wondering about contempt and cellphones in North Carolina courtrooms. In the Tar Heel state you might be held in contempt if your phone goes off, though not necessarily. Here is a brief primer on contempt and some observations about cellphones.
There are two kinds of contempt, civil and criminal. Civil contempt is used only when a person is currently disobeying a court order, and its only sanction is to lock up the person until they comply with the order. The most common example is the deadbeat father not paying child support. He does not get a set sentence; he stays in jail until he pays, and he gets out just as soon as he catches up on the support.
Criminal contempt can be for any of a number of behaviors listed in the statute. The most common are disrupting or showing disrespect for the court, not following the court schedule, refusing to testify. It’s shouting at the judge, cursing, refusing to sit down, coming late to court — the stuff people usually think about when they hear the word “contempt.” Refusing to obey a court order also may be criminal contempt, just as it may be civil contempt. But it can’t be both, the judge has to choose one, either civil or criminal contempt. The difference between the two is that criminal contempt is used to punish the person for past behavior; civil contempt is used to get the person to comply. Criminal contempt carries a set punishment which can be a fine of up to $500 and/or jail for up to 30 days; civil contempt is jail until the order is complied with.
The ringing cellphone in court, or texting or taking photos, would be criminal contempt, not civil. Contempt is being used to punish the person for something they’ve already done wrong, not to get them to obey a court order. The ringing phone could be contemptuous either because it disrupts the court or because it is disobedience of a court order to not bring a phone into the courtroom or to turn it off. Using a phone to take photographs or record what’s happening in court also would violate the rules about cameras in the courtroom.
Before using criminal contempt, the first question a judge would need to ask is whether a warning is required. Some behavior, like shouting and cursing, is inherently contemptuous and needs no warning from the judge. Everyone knows it is wrong and it may be punished the first time a person does it. For much other conduct, though, a newcomer to court might not know the rules. So, before someone can be held in contempt for that revealing dress or reading a newspaper, they have to be warned.
Given the unfortunate world in which we live in which loudmouths feel free to talk on their phones everywhere, not everyone will know that a cellphone is not allowed in court. And they may not know the rules for that particular courtroom because practices on cellphones vary from judge to judge. Some allow no electronic devices in court at all; others say it’s okay but they have to be turned off; some allow texting while others do not. Consequently, before someone can be held in contempt for cellphone use in the courtroom they have to be told it is wrong. Usually that is accomplished by a sign prominently displayed at the entrance to the courtroom or by an announcement by the bailiff.
The next question a judge would need to ask about criminal contempt is whether the act was willful. An action cannot be criminal contempt unless it is done willfully, and the court has to find the willfulness beyond a reasonable doubt. If the cellphone owner thought it was turned off, is surprised when it rings, then the act is not willful and contempt is not appropriate.
That is what happened in State v. Phair, 193 N.C. App. 591 (2008). During a criminal trial in Lee County a lawyer’s cellphone started ringing. A notice on the courtroom door and an announcement by the bailiff had said to turn off cellphones. The ringing phone interrupted the trial and the judge found the lawyer in criminal contempt. The evidence, though, was that the lawyer thought she had turned off her phone and was apologetic when it happened. As the Court of Appeals said, “Although defendant admits that she knew from years of practicing law the she should turn her cell phone off while court is in session, it seems clear that defendant merely made a mistake in not turning her cell phone off before entering the courtroom.” Based on that record, the Court of Appeals reversed the contempt, saying the act was not willful.
The other point to keep in mind about criminal contempt is the difference between direct and indirect contempt. Almost always a cellphone violation in the courtroom will be direct criminal contempt. Direct criminal contempt is contempt that occurs in the judge’s presence, in the judge’s sight or hearing. When contempt is direct, the judge may act summarily to punish the offender right then and there. There is no need to issue a show cause order and schedule a hearing because the judge already has witnessed the conduct and does not need to hear from witnesses, as would be the case if the contempt was indirect, not in the judge’s presence.
What trips up judges sometimes is that the offender has to be given a chance to be heard even when it is direct criminal contempt. Although no witnesses are needed, both the contempt statute and due process require that the judge tell the cellphone user that the judge is considering contempt and give the user a chance to explain why contempt is not appropriate. In State v. Randell, 152 N.C. App. 469 (2002), for example, the Court of Appeals reversed the direct criminal contempt conviction of a spectator for refusing to stand at the call of the bailiff, because the judge failed to give the person a chance to explain.
A Winston-Salem police officer drew attention several months ago when he attempted to text a message to the prosecutor while on the stand testifying. A local newspaper columnist took the judge to task for not immediately confiscating the phone and holding the cop in contempt, as you can read here. Newspaper columnists generally are not experts on contempt, though, and this one was wrong in thinking the judge could act on the spot. Although the officer was texting while on the stand, the judge did not see it and did not learn about it until told later. Thus the texting was not in the judge’s sight or hearing and he could not use the summary procedure available for direct contempt, he had to issue a show cause order and schedule a hearing as in any other case of indirect criminal contempt. The key was that the judge needed witnesses to testify to what happened.
The punishment for criminal contempt is censure (rarely used), a fine or up to $500 or jail for up to 30 days, or any combination of those. Typically judges have the bailiff take the offending cellphone and hold it for a while. That is probably okay as part of the court’s authority to stop the interruption of the proceeding and bring the contempt to an end. But the phone ought to be returned to the owner when court is over, if not earlier, unless it is the very rare case where the cellphone is needed as evidence of the contempt. There is no statutory authority for forfeiture of the phone and the sheriff won’t be able to figure out how to dispose of it if ordered to keep it. Although it is clearly wrong and beyond their authority, there still are a few judges who will order the cellphone held until the owner contributes $50 or so to a local charity.
In sum, a ringing cellphone — or texting or taking photographs — is not automatically contempt, but can be criminal contempt if proper warning has been given. The violation has to be willful and the judge may punish the person on the spot if the judge saw or heard the phone. Still, the person has to first be given a chance to explain. The maximum punishment is $500 and 30 days in jail, but the offense seldom would seem to justify anything more than a minimal fine.
As I traveled around the state teaching about the Justice Reinvestment Act, I had lots of discussions about the various types of confinement that can now be ordered in response to a probation violation (splits, dips, dunks, and so forth—they’re all catalogued here). That conversation almost always included a discussion of jail credit. The general rule that I passed along is that a probationer who ultimately gets revoked is entitled to credit against his or her suspended sentence for any prior time spent confined in response to a violation, regardless of the precise basis for that confinement. At almost every session, someone would ask if that rule included contempt ordered under G.S. 15A-1344(e1)? It does.
Under G.S. 15A-1344(e1) the court may, in response to a willful violation of probation, hold a defendant in criminal contempt as provided in Article 1 of Chapter 5A of the General Statutes. Looking at Article 1 of Chapter 5A, the maximum period of imprisonment that may be ordered for the contempt is 30 days. G.S. 5A-12. Under G.S. 5A-15, the judge must hold a plenary hearing on the violation to determine whether the defendant is guilty or not guilty of the alleged violation, based on facts established beyond a reasonable doubt. In that sense the contempt hearing is more formal and demanding than a typical probation violation hearing, where the facts need only be shown to the judge’s reasonable satisfaction. State v. White, 129 N.C. App. 52 (1998). The contempt punishment is in lieu of revocation and does not revoke the probation.
On the question of whether a probationer gets credit against his or her suspended sentence for any time spent imprisoned for contempt, the leading case is State v. Belcher, 173 N.C. App. 620 (2005). In Belcher, a felony probationer was held in contempt for a series of violations and ordered to serve 30 days in jail. She was later revoked for subsequent violations. At her violation hearing the court refused to allow credit against the defendant’s 8-month sentence. On appeal the defendant argued that she was entitled to credit for the contempt imprisonment under G.S. 15-196.1.
The court of appeals agreed. The court cited to State v. Farris, 336 N.C. 552 (1994), in which the supreme court held that, upon revocation of probation, a defendant is entitled to any time served pursuant to a split sentence. Belcher never explicitly reasons through any argument that contempt confinement might be governed by a different rule—but that’s because the issue wasn’t really contested. The defendant argued in her brief that “[c]learly, there is no rational distinction between time served as a condition of special probation because of a willful violation of probation and time served when held in contempt because of a willful violation of probation. The label that a trial judge chooses to put on the ‘taste of incarceration’ he gives a defendant in response to a willful violation of probation cannot arbitrarily dictate whether the defendant receive [sic] jail credit for the time served if his probation is ultimately revoked.” Defendant-Appellant’s brief at 9. The State essentially agreed, noting that although this case involved contempt and not special probation, “the rationale set forth in Farris . . . would appear to dictate that credit be given for anything relating to confinement and the State is unable to distinguish the instant fact situation in a meaningful way.” Brief for the State at 5. Absent any real dispute, the court of appeals remanded the case for award of the 30 days of credit.
There may have been some basis for a meaningful distinction. The probation-contempt provision was first added to the law in 1993 as G.S. 15A-1344(g). As originally enacted, the provision explicitly provided that a “person imprisoned under this subsection for contempt shall be given day-for-day credit on any sentence of imprisonment for the underlying offense, if the offender’s probation is subsequently revoked.” That provision was repealed the following year and replaced by G.S. 15A-1344(e1), which was (and still is) silent on the issue of credit. S.L. 1994 (extra session), Ch. 19. The shift from subsection (g) to subsection (e1) probably indicated a legislative intent to eliminate the credit provision—a move perhaps designed to give courts and probation officers a little more leverage over defendants with short suspended sentences under then-new Structured Sentencing. Counting the time for credit arguably frustrates that purpose.
Moreover, it wouldn’t be out of line with our standard thinking about contempt punishment to construe it as a separate “sentence” within the language of G.S. 15-196.1. Criminal contempt is, after all, its own quasi-criminal thing—proved beyond a reasonable doubt even in the context of a probation violation—aimed more at vindicating the authority of the court than punishing the defendant for the underlying crime for which he or she is on probation. See North Carolina v. Carr 264 F. Supp. 75, 79 (W.D.N.C. 1967) (noting that contempt proceedings are “brought to vindicate the dignity and authority of the court” and are considered “criminal in their nature and are generally governed by the rules applicable to criminal cases”). But the court of appeals did not go down that path in Belcher, and the rule is that contempt time counts for credit against any later-activated sentence.
A different rule applies for contempt confinement ordered by the Post-Release Supervision and Parole Commission under G.S. 15A-1368.2(b). Under that law, discussed here, contempt confinement ordered by the Commission for a sex offender who refuses to accept or comply with post-release supervision does not, notwithstanding any other provision of law, count for credit for time served against the underlying sentence.
A frequently asked question of late is whether a judge may still impose special probation (a split sentence) in a probation case. Apparently the question arises out of a sense that the new forms of confinement created by the Justice Reinvestment Act—short term confinement for 2–3 days (“quick dips”) and confinement in response to violation (CRV, or “dunks”)—are now the only proper form of probationary confinement.
Reports of the death of the split sentence are exaggerated. The new types of JRA confinement are certainly similar to a split sentence, but they are statutorily distinct and did not replace it. The statutes authorizing special probation, G.S. 15A-1351(a) for splits imposed at sentencing and G.S. 15A-1344(e) for splits imposed as a modification of probation, were not repealed or amended by the JRA.
Even if the split sentence laws are still on the books, I can think of reasons they might be used less frequently now. First, for offenses committed on or after December 1, 2011, the judge is not required to impose any particular conditions of probation to make the sentence intermediate as required by an “I” block on the sentencing grid. My sense is that under prior law, when the judge was required to impose one of the six intermediate conditions to make a sentence intermediate, a short split sentence (perhaps to time already served) was often the intermediate condition of choice. With that requirement gone, I suspect the number of splits may go down.
Second, CRV may be preferable to a split sentence (at least from the State’s point of view, generally speaking) because only receipt of two CRV periods qualifies a person for revocation based on an additional technical violation. A prior violation responded to with a split sentence does not count as a CRV “strike” setting a defendant up for eventual revocation. There may therefore be times when the prosecutor is inclined to ask for and the judge is inclined to impose CRV—even when 90 days might be a longer confinement period than anyone thinks is necessary.
But I don’t expect split sentences to go the way of the dinosaur any time soon. The court can do certain things with a split sentence that it cannot do with CRV. First, in felony cases, CRV is a bit of a blunt instrument: a felony CRV period must be 90 days, no more and no less (unless the defendant has less time than that remaining on his or her suspended sentence). A split sentence, on the other hand, may be as short as the court would like. Second, split sentences may be served in noncontinuous periods, like weekends—a popular way to allow defendants to keep a job or care for family. By contrast there is no statutory provision allowing CRV to be served in noncontinuous periods. And in the absence of such a provision, I tend to think CRV periods must be served continuously. See State v. Miller, 205 N.C. App. 291 (2009) (discussed here, holding that a judge lacks authority to allow a defendant to serve an active sentence on weekends in a Structured Sentencing case). Finally, a judge has more flexibility in terms of place of confinement with a split sentence. Under G.S. 15A-1351(a) and -1344(e), a split sentence for a may be served in prison, the local jail, or a designated treatment facility. The place of confinement for CRV, meanwhile, is dictated by where the defendant would have served an active sentence. G.S. 15A-1344(d2). Thus, felony CRV periods must be served in prison (DAC will send them to Dan River, Greene, Odom, Tyrrell, Western Youth Institution, or Fountain Correctional, depending on the defendant’s sex, age, and geographical location), and some misdemeanor CRVs should be ordered into the Statewide Misdemeanor Confinement Program. (I heard from some sheriffs this week that a fair number of felony CRVs are being served in their jails at county expense. As I read the law that should not happen.)
Another form of non-CRV confinement that may still be ordered after the JRA is contempt under G.S. 15A-1344(e1). That law says the court may hold an offender in criminal contempt for a willful probation violation, allowing up to 30 days of imprisonment for the violation. It should be noted, however, that any imprisonment ordered as punishment for the contempt counts against the defendant’s suspended sentence. State v. Belcher, 173 N.C. App. 620 (2005). I may write more about that law soon. It has an interesting legislative history.
So, CRV has not cornered the market on post-JRA probationary confinement. Other options are alive and well, but the calculus for determining which may be best in a particular case has changed. After more time has passed I’ll be interested to review some statistics to get a sense of how things are playing out. In the meantime, I’d love to hear from you about what is going on in practice.
I mentioned in my previous post that the Justice Reinvestment Act (JRA) is not the only new legislation that impacts post-release supervision (PRS). This post looks at S.L. 2011-307, which changes the way PRS applies to sex offenders. (I also mentioned that I would talk about post-release supervision for certain impaired drivers under Laura’s Law, but it turned out that I had so much to say about sex offenders that I decided to leave that for another day.)
Under existing law, the period of post-release supervision in the community is 5 years for Class B1–E offenders imprisoned for a crime that requires sex offender registration. But those offenders face only 9 months of active time if their PRS is revoked—only 9 additional months are built into their active sentences, and they are released from prison 9 months before attaining their maximum. Faced with a choice between 5 years of supervision in the community and 9 months in prison, some offenders opt for the latter. Under G.S. 15A-1368.2(b) a person technically cannot refuse PRS, but some offenders get around that by violating their conditions of supervision on purpose.
To put a stop to that, S.L. 2011-307 amends G.S. 15A-1340.17(f) to provide that for sex offenders convicted of Class B1–E felonies, the maximum sentence is 120 percent of the minimum, rounded to the next highest month, plus 60 additional months. The law then makes a parallel change to G.S. 15A-1368.2(a) to provide that those offenders will be released from prison onto PRS 60 months before attaining their maximum, less earned time. Thus, if they violate PRS, they can be returned to prison for the remaining 60 months—making it far less appealing to serve the prison time in lieu of community supervision.
That change does not apply to Class F–I felons convicted of reportable crimes—even though they will be subject to PRS pursuant to the JRA and will have 5-years of supervised release under existing G.S. 15A-1368.2(c). Even those offenders, though, will have an incentive to complete their PRS in the community under S.L. 2011-307. The new law provides that willful refusal to accept or comply with the terms of PRS is punishable as criminal contempt of court, with the Parole Commission empowered to act as a judicial official would under Chapter 5A. That would appear to mean that the Parole Commission could, after holding a plenary contempt proceeding under G.S. 5A-15 and finding beyond a reasonable doubt that an offender willfully refused to accept or comply with PRS, punish a person by up to 30 days imprisonment under G.S. 5A-12. The amended statute says that notwithstanding any other provision of law, any punishment for that contempt does not count for credit for time served against the underlying sentence. That may conflict with State v. Belcher, 173 N.C. App. 620 (2005), which held that a revoked probationer was entitled to credit for time spent jailed for contempt under G.S. 15A-1344(e1).
The new law also provides that any time spent imprisoned “due to the prisoner’s resistance to . . . release” must “toll the running of the period of supervised release.” “Tolling” in this context appears to mean that the offender’s period of PRS will be right there waiting for him when he gets released from prison, with no time having ticked off the supervision period in the interim—a further disincentive to any attempt to refuse PRS. The inclusion of a tolling provision in this law makes me wonder if a regular (that is, non–sex offender) offender’s period of supervision is tolled when he or she gets imprisoned in response to a non–new crime, non-absconding violation of PRS.
The law amends G.S. 15A-1354(b)(1) to subtract duplicate 60-month periods built into the aggregate maximum sentence for anyone sentenced for multiple reportable Class B1–E crimes. The amended law does not, however, reflect the changes made by the JRA regarding the subtraction of “second and subsequent” 9-month and 12-month duplicate PRS time out of the aggregate maximum. Read together, I think the changes probably accomplish the goal of having the offender serve a single PRS term of the appropriate length for whichever sentence requires the longest period of supervision (assuming that was, in fact, the goal), but it’s not clear.
When sentencing a Class B1–E sex offender, the court will need to add 48 months onto the maximum sentence set out on the back of the post–December 1, 2011 sentencing grid (the number on the chart will be 120% of the minimum plus 12 months, so an additional 48 months will need to be tacked on to get to 60). For sentencing geeks like me, the mere thought of adding time to maximum sentences sets off alarm bells: could this be an issue under Blakely v. Washington, 542 U.S. 296 (2004)? In general I don’t think it is. Sex offender registration typically flows directly from a conviction, and so no additional factual findings (that might trigger the Blakely rule requiring an admission by the defendant or proof to a jury beyond a reasonable doubt) would be required by a judge. A few offenses, however, are only reportable if additional facts beyond those inherent in the conviction itself are true. Kidnapping, for example, is only reportable if committed against a minor. G.S. 14-208.6(1m). It’s not a problem under Blakely for the court to make that factual finding for sex offender registration purposes because registration itself is not a criminal punishment. But to the extent that 48 months of additional imprisonment are at stake, it seems that Blakely might come into play.
The portion of the new law adding 60 months to the maximum sentences for Class B1-E sex offenders is effective December 1, 2011 and applicable to offenses committed on or after that date. The contempt provisions came into effect June 27, 2011, and apply to willful refusals to accept or comply with post-release supervision on or after that date.
Over the past few months I’ve been getting some really interesting questions about contempt. Disclaimer: The real experts on our faculty when it comes to contempt are John Saxon (who has a really fantastic publication on this subject), Michael Crowell, and Cheryl Howell—I’m just dabbling here. But there’s a connection to my field (sentencing), in that many of the questions I’m getting relate to the permissible punishment for criminal contempt.
Is criminal contempt a crime? At different times our courts have said different things. At various times they’ve called it “sui generis,” “quasi-criminal,” “criminal in nature,” and the more all-purpose “punitive.” But occasionally they put it to a finer point, writing (albeit in dicta) that “criminal contempts are crimes,” 313 N.C. 432 (1985), and “[c]riminal contempt is a crime,” 187 N.C. App. 55 (2007). Nowhere in Chapter 5A (the contempt chapter) does the General Assembly use the term “conviction” as applied to contempt, and we know from State v. Reaves, 142 N.C. App. 629 (2001), that contempt adjudications do not count as convictions for prior record level purposes in the sentencing of a later crime. There is no right to counsel at direct criminal contempt proceedings, and likewise no right to a jury trial for contempt, a “petty offense” (unless, perhaps, the sentence exceeds six months, Bloom v. Illinois, 391 U.S. 194 (1968)).
What difference does it make? Well, first of all I had to justify to Jeff that this post belonged on the North Carolina Criminal Law blog at all. Second, what criminal contempt is arguably has a bearing on how it can be punished.
Under G.S. 5A-12, contempt can be punished by censure, imprisonment of up to 30 days (or more in the case of certain refusals to testify and failures to comply with nontestimonial identification orders), by a fine not to exceed $500, or any combination of the three. Though Chapter 5A doesn’t expressly say so, contempt sentences can be suspended with probation, Bishop v. Bishop, 90 N.C. App. 499 (1988), and—in what is apparently a common practice around the state—multiple contempt sentences can be run consecutively. Our courts have never expressly approved the latter practice, but the United States Supreme Court recently reminded us in Oregon v. Ice that “firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of the sentencing judge.” There have been North Carolina cases involving boxcar contempt sentences, but they were resolved on other grounds, eliminating the need to address the stacking. State v. James, 159 N.C. App. 229 (2003) (unpublished) (three consecutive 30-day terms ordered in response to a volley of obscenities lobbed at the judge); Disciplinary Hearing Commission v. Frazier, 354 N.C. 555 (2001) (sixteen (!) consecutive 30-day sentences for unauthorized practice of law). There are related questions about whether separate counts are really based on independent acts (can each profanity net you 30 days in jail? each missed child support payment? each day you didn’t pay?), but I’ll set those aside for now.
The argument that contempt sentences should not be run consecutive would go something like this. Under G.S. 14-1, felonies are defined a particular way and any other crime that doesn’t fall within that definition is a misdemeanor. Contempt does not fall within the felony definition, so, the argument goes, it’s a misdemeanor. Under G.S. 14-3(a)(2), unclassified misdemeanors with a maximum punishment of 30 days or less are Class 3 misdemeanors. Under G.S. 15A-1340.22, consecutive sentences may not be imposed if all convictions are for Class 3 misdemeanors. Thus, consecutive sentences should not be imposed for contempt. The argument is compelling as a matter of proportionality—to the extent that contempt is similar to a Class 3 misdemeanor, it makes sense that it ought to be treated in roughly the same way. It’s difficult, however, to graft Structured Sentencing’s rules onto contempt, which has its own, self-contained punishment provisions in G.S. 5A-12. The greater weight of cases seems to support the sui generis approach, with contempt as neither felony nor misdemeanor. A similar issue arises when fines are ordered for contempt—if the contemnor doesn’t pay, do the rules for Fines in Article 84 of Chapter 15A kick in? It’s not a perfect fit.
As always, I welcome your thoughts on what goes on in practice.