Randy Meador v. Commonwealth of Kentucky ( 2023 )

RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1161-MR
RANDY MEADOR APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 19-CR-00078
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND KAREM, JUDGES.
DIXON, JUDGE: Randy Meador appeals from orders revoking his probation and
sentencing him to six months’ imprisonment for contempt, entered by the
Cumberland Circuit Court on August 30, 2022, and September 7, 2022,
respectively. After careful review of the briefs, record, and law, we vacate and
remand with respect to the probation revocation and affirm regarding the order of
contempt.
PROBATION REVOCATION
A. Factual Background and Procedural History
On August 29, 2019, a grand jury of the Cumberland Circuit Court
indicted Meador for one count of theft by failure to make required disposition,1 and
for being a first-degree persistent felony offender.2 Pursuant to his agreement with
the Commonwealth, Meador later entered a guilty plea to the theft charge and to
being a second-degree persistent felony offender.3 The trial court accepted
Meador’s guilty plea and, consistent with the Commonwealth’s recommendation,
sentenced him to eight years’ imprisonment. The Commonwealth also indicated
that if Meador moved for shock probation,4 it would not oppose the motion if
Meador paid restitution. Thereafter, Meador paid restitution and moved the court
for shock probation, which it granted on December 19, 2019, probating his
sentence for five years.
1
Kentucky Revised Statutes (KRS) 514.070.
2
KRS 532.080(3).
3
KRS 532.080(2).
4
KRS 439.265.
-2-
On April 1, 2022, the Commonwealth moved to revoke Meador’s
probation. In support, it cited a March 29, 2022 “violation of supervision report”
from Probation and Parole which indicated Meador had failed to report as required;
had absconded; and since his release had received new felony charges, new felony
convictions, and a new misdemeanor conviction.
On August 30, 2022, the trial court considered the Commonwealth’s
motion and conducted a revocation hearing. Meador, who was in jail at the time,
attended by video. The probation officer who authored the “violation of
supervision report” testified that revocation was appropriate based on his report.
The officer testified that Meador was convicted of the felonies on January 3, 2022,
and the misdemeanor on October 25, 2021. On cross-examination, the officer
represented that, according to his information, the offenses occurred after Meador
was placed on probation.
Meador’s counsel declined to call any additional witnesses. During
closing argument, however, she contended that the operative dates relating to
Meador’s new offenses may have preceded the trial court’s December 19, 2019,
probation order and asked the court to consider allowing Meador to remain on
probation even though he was incarcerated. The court declined and revoked
Meador’s probation. However, it advised Meador and his counsel that if they
-3-
could provide proof of their contention, it would consider setting aside the
revocation.
On August 30, 2022, the trial court entered its order revoking
Meador’s probation, and this appeal followed.
B. Legal Analysis
On appeal, Meador argues the trial court failed to appropriately justify
its revocation order with findings consistent with KRS 439.3106(1). Meador did
not raise this argument before the trial court but now asks this Court to review for
palpable error5 pursuant to RCr6 10.26, which provides:
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
5
Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate
court will not engage in palpable error review “unless such a request is made and briefed by the
appellant.” Jenkins v. Commonwealth, 607 S.W.3d 601, 613 (Ky. 2020) (quoting Shepherd v.
Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)). The Commonwealth emphasizes that
Meador failed to make such a request in his initial brief. However, in response to the
Commonwealth, Meador effectively cured this preservation issue by making and supporting a
request for palpable error review in his reply brief. See, e.g., Hollingsworth v. Hollingsworth,
798 S.W.2d 145, 147 (Ky. 1990) (explaining that a reply brief allows an offending appellant a
second chance to comply with appellate procedural rules regarding preservation if his initial brief
fails to do so).
6
Kentucky Rules of Criminal Procedure.
-4-
We consider an error palpable “only if it is clear or plain under current
law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citation
omitted). “[W]hat a palpable error analysis ‘boils down to’ is whether the
reviewing court believes there is a ‘substantial possibility’ that the result in the
case would have been different without the error.” Roberts v. Commonwealth, 410
S.W.3d 606, 610 (Ky. 2013) (citing Brewer v. Commonwealth, 206 S.W.3d 343,
349 (Ky. 2006)).
We agree that palpable error occurred. Prior to revoking probation, a
trial court must comply with KRS 439.3106 by making two additional findings:
[T]he probationer’s failure to comply with the terms of
probation constitutes “a significant risk to [his] prior
victims . . . or the community at large,” and that the
probationer “cannot be appropriately managed in the
community.”
Commonwealth v. Andrews, 448 S.W.3d 773, 777 (Ky. 2014) (quoting KRS
439.3106(1)). By requiring these two findings, “the legislature furthers the
objectives of the graduated sanctions schema to ensure that probationers are not
being incarcerated for minor probation violations.” Id. at 779 (citation omitted).
Here, the trial court did not make either of these findings in its order
of August 30, 2022. Nor, for that matter, did it otherwise articulate from the
bench, or anywhere else in the record before us, that it considered KRS 439.3106
when revoking Meador’s probation. Precedent dictates that the trial court’s failure
-5-
in this regard constitutes palpable error. See, e.g., Burnett v. Commonwealth, 538
S.W.3d 322, 324-25 (Ky. App. 2017) (palpable error in failure to make findings
under KRS 439.3106 when voiding diversion); Lainhart v. Commonwealth, 534
S.W.3d 234, 238 (Ky. App. 2017) (palpable error in failure to make findings under
KRS 439.3106 when voiding diversion); Walker v. Commonwealth, 588 S.W.3d
453, 459 (Ky. App. 2019) (palpable error in failure to make findings under KRS
439.3106 when revoking probation); Price v. Commonwealth, 534 S.W.3d 805,
806 n.1 (Ky. App. 2017) (concluding defendant’s counsel had preserved trial
court’s failure to make findings under KRS 439.3106 when voiding diversion but
stating that the lack of findings would constitute palpable error if unpreserved).
Accordingly, we vacate the trial court’s order revoking Meador’s probation and
remand for further findings in conformity with KRS 439.3106.
CONTEMPT
A. Factual Background and Procedural History
At Meador’s revocation hearing, only one witness testified – the
probation officer. Thereafter, Meador’s counsel informed the court she intended to
call no additional witnesses but wished to make a few closing arguments. Meador
then interrupted the proceedings to ask his counsel to broach the subject of his
eligibility for a substance abuse program. Counsel responded by advising it was
-6-
not in Meador’s best interest to speak and, further, the subject of his eligibility was
an argument she intended to make in closing.
The court then heard arguments from the Commonwealth and counsel.
Thereafter, the court inquired of counsel and the probation officer whether they
could confirm that Meador’s new charges predated his probation. Meador
interrupted the proceedings with another question, and the court admonished him
to put his “hand down and be quiet.” The officer testified that the dates of
Meador’s new offenses followed the date of the trial court’s probation order. The
parties briefly reasserted their closing arguments, and the court held from the
bench that Meador’s probation would be revoked.
Meador then asked to testify and to ask questions of both the
probation officer and prosecutor. The court advised he could not do so because the
hearing was over. Nevertheless, Meador proceeded to reassert much of what his
counsel had argued on his behalf – that the probation officer was incorrect and that
the new charges and convictions had occurred after the start date of his probation.
The court, Meador’s counsel, and the prosecutor assured Meador that if he later
provided proof that the probation officer was incorrect about the dates of his
conduct, the revocation could be set aside. However, Meador insisted he had
additional questions. The court instructed him to save his questions for his
attorney and again told him the hearing was over. Meador continued to interrupt
-7-
and complained that his attorney never answered her phone; whereupon the
following transpired:
COURT: We’re finished. (To counsel) You call him and
talk to him and satisfy his questions, [defense counsel].
Okay?
COUNSEL: Yes, Your Honor.
COURT: Thank you very much. Let’s go to –
MEADOR: Fuck him.
COURT: What did you say? You’re held in – hey, sir –
wait just a second there. He’s held in contempt for six
months. Put those headphones back on him. Put those
headphones back on him.
OFFICER: (From the video feed) Your honor?
COURT: Yes?
OFFICER: You are not through with him?
COURT: No, I just, I just sentenced him to six months
for what he said. Just tell him he’s sentenced for six
months for contempt.
OFFICER: Alright. Randy, you’ve been sentenced for
six months for contempt for what you just did.
COURT: Okay. Thank you very much.
B. Legal Analysis
We begin our analysis with a qualification. The hearing footage did
not capture Meador’s video feed from the jail; his offending language was faint;
-8-
and the trial court noted in its contempt order only that “[a]t the conclusion of the
hearing, the Defendant had an outburst and used profanity directed at the Court.”
Accordingly, while we agree with the Commonwealth’s interpretation of what
Meador said, it is possible that what Meador represents, as set forth in his appellate
brief, is also correct – that what he stated was “to the effect of ‘That’s fucked
up[,]’” and that his statement was not a slight against the presiding judge but his
critique of the court’s refusal to allow him to continue asking questions.
Meador now argues the court’s decision to sentence him to a term of
six months’ imprisonment must be either vacated or reversed. First, he suggests
that because the trial court did not specify in its order what his offending language
was, it may not have understood what he said, and if it did not understand what he
said, it could not have properly found him in contempt.
As set forth in its order, however, the trial court understood what
Meador said to be “profanity directed at the Court.” For purposes of contempt,
that is enough. If Meador wished for the court to make more detailed findings
about his profanity, the onus was upon him to bring it “to the attention of the trial
court by a written request for a finding on that issue or by a motion pursuant to
Rule 52.02.” CR7 52.04. Meador failed to do so and, therefore, cannot complain
about the lack of any such findings now. Id.7
Kentucky Rules of Civil Procedure.
-9-
Second, while he was held in criminal contempt, Meador suggests that
his contempt may have been indirect as opposed to direct criminal contempt
because he was not personally present in the courtroom, and because it could be
reasonably inferred that he made his offending comment as he was walking away
from the video equipment. Therefore, he asserts his sentence should be vacated
because indirect criminal contempt requires at least a due process hearing, which
did not occur. We disagree.
To be sure, Meador is correct in his assessment of the due process
requirements associated with indirect criminal contempt:
An individual who has committed indirect criminal
contempt may be punished only in proceedings that
satisfy due process. A court may not impose a fine
greater than $500.00 and/or incarceration for more than
six months except upon the unanimous verdict of a jury
finding the individual guilty of contempt beyond a
reasonable doubt.
Newsome v. Commonwealth, 35 S.W.3d 836, 839-840 (Ky. App. 2001) (citations
and footnotes omitted). That said, Meador was still in the presence of the court
when he made his offending statement, the court clearly heard him make it, and his
profane comment was undisputedly directed at the court. That is enough for
purposes of direct criminal contempt, which the court was at liberty to punish
summarily absent any fact-finding. Without question, all the elements of Meador’s
-10-
offense were within the personal knowledge of the court. See Newsome, 35
S.W.3d at 839 (defining “direct” criminal contempt).
Third, while acknowledging that contempt matters are within the trial
court’s discretion, Meador argues the court abused its discretion. In sum, he
believes that his six-month term of imprisonment for contempt is unfair and unduly
harsh because he did not physically injure anyone, and in his view, the court was
overly sensitive. He adds that “one man’s vulgarity is another’s lyric.” We
disagree.
A court not only has the right but also the duty to protect its authority
and dignity against contemptuous conduct. Meyers v. Petrie, 233 S.W.3d 212, 216
(Ky. App. 2007) (citation omitted). When a court exercises its contempt powers, it
has nearly unlimited discretion. Smith v. City of Loyall, 702 S.W.2d 838, 839 (Ky.
App. 1986). Consequently, we will not disturb a court’s decision regarding
contempt absent an abuse of discretion. “The test for abuse of discretion is
whether the trial [court’s] decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
Herein, neither stating “fuck him” nor “that’s fucked up” could
reasonably be construed as Meador attempting to impress the court with his lyrical
stylings. Meador’s multiple interjections that ultimately culminated with his final
-11-
explicit outburst interrupted the orderliness and decorum of the proceedings,
willfully violated the orders of the court to remain quiet, and impugned the court’s
dignity.
It is irrelevant that Meador did not physically injure anyone. Physical
injury is neither a prerequisite to a contempt finding nor a sentence of
imprisonment for contempt.8 Meador fails to cite any authority indicating that a
six-month sentence for contempt in this type of circumstance qualifies as an abuse
of discretion. To the contrary, in Meskimen v. Commonwealth, 435 S.W.3d 526(Ky. 2013), our Supreme Court affirmed a six-month sentence for direct criminal
contempt where the evidence demonstrated the appellant “commit[ed] acts of
direct contempt when he resisted coming back into the courtroom upon the judge’s
request and furthermore, when he cursed at the judge upon returning to the
courtroom.” Id. at 537. In West v. Commonwealth,9 the Supreme Court of
Kentucky also affirmed a trial court’s decision to sentence an appellant to a 179-
day sentence and a 180-day sentence stemming from the following facts:
At the conclusion of the final sentencing hearing,
Appellant disrespectfully stated to the trial court, “I’ll see
you when the Court of Appeals overturns this.” The trial
court responded to this brash and indecorous discourtesy
8
A six-month term of imprisonment is the maximum a trial court is authorized to sentence for
direct contempt. Newsome, 35 S.W.3d at 840.
9
West v. Commonwealth, No. 2011-SC-000629-MR, 2013 WL 3155835 (Ky. Jun. 20, 2013)
(unpublished). An unpublished opinion may be considered as permitted by Kentucky Rules of
Appellate Procedure (RAP) 41.
-12-
by holding him in contempt and imposing a 179-day
contempt sentence. Appellant arrogantly responded by
saying, “Make it 180.” For this, the trial court held him
in contempt for a second time, and imposed an additional
179-day sentence, to be served concurrently with the
first. As Appellant was being escorted from the
courtroom he continued to act disrespectfully and stated
back, “OK, see you.”
Id. at *8. In affirming the appellant’s contempt sentences, the court explained:
The trial court found Appellant’s conduct to be “unruly
and argumentative,” an assessment with which we agree.
It is not the content of Appellant’s remarks that merited
the court’s contempt, but the obviously disrespectful and
indecorous means he chose to express it. His attitude
challenged the trial judge’s position of authority in the
courtroom. Whether Appellant was sufficiently
impertinent to deserve two 179-day jail sentences was a
matter open to the trial court’s sound discretion and we
are persuaded that the exercise of that discretion was not
abused. Therefore, we affirm the judgment of the trial
court finding Appellant in contempt and we affirm the
sentence thereby imposed.
Id. at *9.
In the instant matter, we similarly hold that whether Meador was
sufficiently disrespectful to deserve a six-month jail sentence was a matter subject
to the trial court’s sound discretion and that the exercise of that discretion was not
abused. Consequently, we affirm the order of the Cumberland Circuit Court
holding Meador in contempt and affirm the sentence thereby imposed.
-13-
CONCLUSION
Therefore, and for the forgoing reasons, we AFFIRM IN PART,
VACATE IN PART, AND REMAND for further proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jared Travis Bewley Daniel J. Cameron
Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
-14-