Denny Holliday v. Commonwealth of Kentucky ( 2023 )

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1355-MR
DENNY HOLLIDAY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 21-CR-01270
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
KAREM, JUDGE: Denny Holliday appeals from the Fayette Circuit Court twice
finding him to be in indirect criminal contempt of court. We affirm as to the first
conviction because Holliday did not timely appeal from that judgment but vacate
and remand the second conviction with instructions to hold an evidentiary hearing.
In December 2021, Holliday was indicted for, among other things,
assault in the fourth degree (third or greater offense within five years) and being a
persistent felony offender in the second degree. At all times relevant to this
Opinion, Holliday was in custody pursuant to those charges.
Holliday entered a not guilty plea in early February 2022 but did not
appear at the next proceeding, a status hearing held in early March 2022. The
recording of that hearing before us is incomplete as it does not show the trial court
calling Holliday’s case; instead, the recording begins with the court saying, “you
know.” Video, 3/4/22 at 3:08:55. Holliday’s counsel then apologizes for the
“waste of time” due to Holliday’s nonappearance, to which the court responded,
“Mr. Holliday just didn’t feel like it today.” Id. at 3:09:00 et seq. Without a
complete video record, it is impossible to discern why the court believed
Holliday’s absence was due to a nonchalant attitude rather than some other
unobjectionable explanation.
Holliday appeared at the next status hearing, held two weeks later.
However, his attorney was absent, due to illness. One week later, at another status
hearing, Holliday and his attorney each were present. The court thanked Holliday
for appearing. Video, 3/25/22 at 1:48:48.
The next proceeding was held in late April 2022. Holliday was
present. At the next hearing, held in mid-May 2022, Holliday appeared but his
counsel did not – again due to illness.
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One week later, May 20, 2022, Holliday failed to appear at a status
hearing. Again, the video begins after the hearing had already commenced.
Holliday’s counsel is recorded mid-sentence saying, “and that’s the first time that’s
happened.” Video, 5/20/22 at 3:42:35. The judge orally stated that she was going
to give Holliday a “warning” that he “may” be held in contempt if he failed to
appear for the next proceeding, scheduled for June 3, 2022. Id. at 3:42:58 et seq.
The court issued an order which similarly provided that Holliday’s “personal
appearance in Court is mandatory. Failure To Appear could result in Contempt.”
Trial Court Record (“R.”) at 39.
Holliday appeared for the June 3 status hearing. He decried the
supposed dearth of communication with his appointed counsel. The court stated
that it would contact Holliday’s counsel’s supervisor.
On June 10, 2022, Holliday again failed to appear at a status hearing.
Once again, the video record appears to be incomplete as it abruptly begins with
the court questioning whether Holliday’s case had been assigned to the attorney
representing him that day. As it turns out, that attorney was stand-in counsel.
It is difficult to understand every word spoken at this hearing with
reliable precision due to some crosstalk. However, it is clear that the court asked if
it was correct that Holliday had “refused” to attend the hearing. Video, 6/10/22 at
1:29:08 et seq. Some unidentified person responded that Holliday had “refused to
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come.” Id. at 1:29:23. The court then immediately stated that it had warned
Holliday about not appearing (technically, of course, the oral warning was only
that Holliday would be held in contempt if he did not appear at the next hearing –
which he did) and thus was holding him in contempt and sentencing him to ninety
days. No sworn testimony was taken. Holliday’s stand-in counsel did not object,
nor ask for a hearing.
The court issued a brief order memorializing the oral contempt
finding, stating that Holliday “intentionally failed to attend Court” and thus was
found to be in contempt and sentenced to 90 days in jail. R. at 44. That order does
not contain finality language. The court also issued a commitment order, which
contains a handwritten notation at the bottom stating “Held in contempt[.] 90 days
to serve[.]” R. at 43. Holliday did not file a motion to alter, amend, or vacate that
judgment, nor did he file an appeal.
The next proceeding was a status hearing held in late August 2022.
Holliday did not appear. His counsel asked the court for mercy to avoid another
contempt charge and said Holliday had significant mental health concerns. The
court merely responded that the next hearing would be held on October 7, 2022.
Holliday was not present for that October 7 status conference. The
video record again appears incomplete as it begins with the court saying it would
“note that he [presumably Holliday] originally had asked for a speedy trial.”
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Video, 10/7/22 at 2:47:57. Someone off camera, perhaps the Commonwealth
attorney, soon thereafter states that Holliday had “refused to come [to] the last two
court appearances[,]” to which the trial court responded “correct.” The court then
said “alright, I’ll hold him in contempt.”
Holliday’s counsel responded by asking for a “formal contempt
hearing,” asserting “with the way the staffing is at the jail I think sometimes when
it says refused it doesn’t really mean they refused.” Although counsel’s language
was imprecise, the gist is clear: Holliday’s failure to appear could have been
attributable to a mix-up or omission by jail personnel. The trial court immediately
responded “denied.”
Holliday’s counsel then reminded the court that Holliday had a due
process right to a formal contempt hearing, to which the court responded “Ok. If
you tell me that he’s going to come, and you want to schedule a hearing, I’d be
glad to.” Holliday’s counsel replied, “I obviously can’t guarantee that, your honor,
but he does have rights.” The court said it would “be glad as soon as he comes and
tells me he wants to exercise them.” The court set a January 2023 status hearing
and, despite having just denied the request for a contempt hearing, incongruously
said counsel could “just let me know” if Holliday wanted a contempt hearing.
Video, 10/7/22 between about 2:48:20 and 2:49:19.
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The court issued two orders memorializing the October 7 hearing.
First, it issued a commitment order which, like its June 2022 predecessor, contains
this handwritten notation at the bottom: “Held in contempt[.] Serve 90 days[.]”
R. at 48. Next, the court issued an order which provides in its entirety:
The Court previously advised the Defendant that
he could be held in contempt for failing to attend Court.
The Court finds that the Defendant intentionally failed to
attend Court on June 10, 2022. Therefore, the Court
finds the Defendant in contempt and orders that he serve
90 days.
This matter shall be set for a Status Hearing on
January 13, 2023 at 1:00 p.m.
IT IS FURTHER ORDERED that the Defendant’s
Motion through Counsel for a Hearing for Contempt
charge is DENIED.
R. at 49. Holliday did not again request a hearing. Instead, he filed this appeal.
Before we begin our merits analysis, we note that this appeal is not
moot, even though Holliday has completed serving both ninety-day contempt
sentences. “The general rule is, and has long been, that where, pending an appeal,
an event occurs which makes a determination of the question unnecessary or which
would render the judgment that might be pronounced ineffectual, the appeal should
be dismissed.” Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (internal
quotation marks and citations omitted). However, “the expiration of a criminal
sentence has been held not to moot an appeal from the judgment of conviction,
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because there remain consequences of the conviction (such as the loss of various
civil rights) deemed sufficient to keep alive the appellant’s personal stake in the
outcome of the appeal.” Id. That collateral consequences exception means this
appeal is not moot even though Holliday has served his contempt sentences.
The Commonwealth asserts that Holliday waited too long to appeal
from the June contempt conviction. We agree. However, we also agree with
Holliday that he has timely appealed the October contempt conviction. In other
words, though not expressly framed as such by the parties, our review of the record
plainly shows that the trial court held Holliday in contempt twice, once in June and
a second time in October. That conclusion is based on two main factors.
First, the trial court used present tense language both times.
Specifically, the court in October did not say that it “had” found Holliday in
contempt in June; instead, after someone noted that Holliday had refused to appear
the court said, “alright, I’ll hold him in contempt.” Video, 10/7/22 at 2:48:27.
Because the record does not show that Holliday had sought any relief from the
June contempt conviction, there was no logical reason for the trial court to have
revisited its having held Holliday in contempt in June. Instead, the logical reason
for the court to have been discussing contempt was because it again found
Holliday’s absence to be contumacious.
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Second, the court issued an accompanying commitment order in both
June and October. There was no point in issuing a redundant, second commitment
order in October if the court intended only to reaffirm that it had found Holliday in
contempt in June, especially since by that point Holliday had already served the
ninety-day sentence imposed in June.
We are aware that the court’s October contempt order curiously
references Holliday refusing to appear in June. However, the reference to Holliday
having failed to appear in June cannot be reconciled with the otherwise
overwhelming circumstantial evidence indicating that the court had convicted
Holliday of contempt afresh in October. In fact, the order uses present tense
language (“the Court finds the Defendant in contempt”), instead of the past-tense
language which would be expected if the court had been referring to it already
having found Holliday in contempt in June. Thus, we regard the reference to
Holliday’s nonappearance in June in the October order as a mere “cut and paste”
type of scrivener’s error.
As to the June conviction, an appeal from a final judgment must be
filed within thirty days after the entry of a final judgment. Kentucky Rule of
Criminal Procedure (RCr) 12.04(3). See also Kentucky Rule of Appellate
Procedure (RAP) 3(A)(1) (effective Jan. 1, 2023). Holliday did not appeal the
June contempt finding within the allotted thirty days. Of course, the thirty-day
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appellate clock may be paused by the timely filing of a motion for a new trial or a
motion to alter, amend, or vacate. See, e.g., RAP 3(E). But Holliday did not file
any such clock-stopping motion. In fact, Holliday did nothing to timely contest the
June contempt finding.
Moreover, the June contempt order was inherently final and
appealable, even though it did not contain finality language, because it wholly
resolved that contempt episode. The June order, along with the court’s oral
pronouncements, found Holliday guilty of contempt and imposed sanctions for that
misconduct. Nothing further was required for that conviction to be final and
appealable, Holliday’s arguments to the contrary notwithstanding.
We dismiss appeals which were not timely filed. See, e.g., Anglin v.
Justice & Public Safety Cabinet, 480 S.W.3d 291 (Ky. App. 2015); RAP 2(A)(3).
This appeal was timely filed as to the October contempt conviction but untimely as
to the June contempt conviction. Thus, even though the court erred by not holding
an evidentiary hearing in June, we reluctantly agree with the Commonwealth that
we may not disturb the June conviction because Holliday did not timely appeal
from it.
The October contempt finding is a different matter. Holliday timely
asked for a contempt hearing. Unfortunately, the court immediately denied that
request. The issue was thus preserved, even though the court oddly later invited
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counsel to again request the very hearing which the court had already emphatically
declined to hold. Our focus, therefore, for the remainder of this Opinion will be on
the October contempt conviction.
We must now ascertain whether Holliday was held in civil or criminal
contempt. “Generally, sanctions imposed to benefit an adverse party . . . are
deemed civil . . . . Punitive sanctions, however – unconditional sanctions not
subject to purgation through compliance with an order and imposed principally if
not purely to vindicate the authority of the court – are deemed criminal.” Cabinet
for Health and Family Services v. J.M.G., 475 S.W.3d 600, 611 (Ky. 2015)
(paragraph break omitted). Here, it is plain that the sanctions were entirely
punitive, so the court held Holliday in criminal contempt.
Having determined the contempt was criminal, we now must
determine whether it was direct or indirect. “A contempt occurring in the presence
of the court is direct contempt, while a contempt committed outside the presence of
the court is indirect contempt.” Riley v. Gibson, 338 S.W.3d 230, 237 (Ky. 2011)
(citation omitted). That distinction is important for two reasons. First, the trial
court may summarily adjudge direct, petty contempts but “as the alleged contempt
becomes more serious or less direct, the United States Constitution’s Due Process
Clauses require criminal contempt procedures . . . more in accord with the
procedural safeguards constitutionally guaranteed for ordinary criminal trials.”
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J.M.G., 475 S.W.3d at 615. In other words, direct criminal contempt occurring in
the presence of the court “may be punished summarily by the court.” C.S. v.
Commonwealth, 559 S.W.3d 857, 865 (Ky. App. 2018). However, indirect
criminal contempt “may be imposed only after proceedings that comport with due
process.” Id. (internal quotation marks and citations omitted).
In short, “indirect contempt – that is, contempt occurring out of Court
or not immediately apparent to the Court – requires an evidentiary hearing.
Summary adjudication of indirect contempt is prohibited.” Cabinet for Health and
Family Services v. R.C., 661 S.W.3d 305, 315 (Ky. App. 2023) (citations omitted).
Second, the nature of our review depends on whether the contempt is
direct or indirect. Specifically, our Supreme Court has held that a trial court has
“very broad discretion to respond as needed to . . . direct contempts” but appellate
review of indirect criminal contempt sanctions must be “searching” and
“commensurate with the review provided in regular criminal cases of a comparable
seriousness . . . .” J.M.G., 475 S.W.3d at 624.
It was obviously immediately apparent to the trial court that Holliday
was not present. Nonetheless, the contempt here is indirect because Holliday’s
failure to appear, by itself, was insufficient to constitute contempt.
Our Supreme Court has defined contempt as “the willful disobedience
toward, or open disrespect for, the rules or orders of a court” and willfulness
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“means with intent or intention.” Poindexter v. Commonwealth, 389 S.W.3d 112,
117 (Ky. 2012) (internal quotation marks and citations omitted). In other words,
criminal contempt must be based on willful disobedience, and so it was incumbent
upon the court to ensure that Holliday intentionally failed to appear. Of course,
there are possible benign, non-contumacious reasons for Holliday’s failure to
appear. For example, he could have been ill or, as his counsel posited, jail
personnel could have simply failed to bring him to the courthouse.
The possibility that Holliday did not intentionally fail to appear,
although perhaps not the most likely explanation since he failed to appear multiple
times prior, is why these contempt findings must be classified as indirect.
Holliday’s absences were wholly within the court’s sensory perception, but the
underlying reasons for them were not. In other words, the court held that
Holliday’s absences were intentional, but there is absolutely no sworn testimony to
support that conclusion.
We have held in analogous circumstances that contempt stemming
from an attorney’s failure to appear in court would be indirect because the court
“could not arbitrarily assume the existence of the culpable mens rea necessary to
constitute contempt. The court could not have known why the attorney was absent
from the proceedings until after he had had an opportunity to explain his conduct.”
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Commonwealth v. Pace, 15 S.W.3d 393, 396 (Ky. App. 2000). The same logic and
rationale apply here.
We have forcefully held that indirect criminal contempt must be
resolved by “an evidentiary hearing[,]” not a “[s]ummary adjudication . . . .” R.C.,
661 S.W.3d at 315. Of course, there was courtroom chatter to the general effect
that Holliday had simply refused to appear. But that chatter was unsworn, and
Holliday was offered no opportunity to present, or cross-examine, witnesses.
Stray, unsworn comments such as those apparently relied upon by the trial court
here, are not an acceptable substitute for a constitutionally mandated evidentiary
hearing. Moreover, we utterly reject the Commonwealth’s unsound argument that
the trial court somehow satisfied the evidentiary hearing requirement by setting a
status hearing to be held in January 2023.
In sum, the trial court erred by adjudging Holliday to be in indirect
criminal contempt without first holding an evidentiary hearing.1 Therefore, we
1
The trial court’s statement that it would hold a hearing only if Holliday’s counsel guaranteed
Holliday’s appearance was improper. First, Holliday had a constitutional right to an evidentiary
hearing before being convicted of indirect criminal contempt. Second, Holliday’s counsel
responded appropriately when she said that she could not personally guarantee Holliday’s
attendance. As an officer of the court, counsel could not make such a guarantee. As Holliday
notes in his brief, the proper procedure was for the court to schedule a hearing and, if Holliday
intentionally failed to appear, the court could then have concluded he had waived his right to a
hearing. Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001) (noting that criminal
defendants may generally waive even basic rights).
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vacate the October contempt conviction and remand for an evidentiary hearing
focused on whether Holliday’s failure to appear was willful.
For the foregoing reasons, the Fayette Circuit Court is affirmed as to
the June contempt finding but the October contempt finding is vacated and
remanded with instructions to conduct an evidentiary hearing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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