In re: A.J. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 22, 2015 Session
IN RE A.J.
Appeal from the Juvenile Court for Williamson County
No. 37304 Sharon Guffee, Judge
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No. M2014-02287-COA-R3-JV- Filed October 22, 2015
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This is the second appeal from a finding of criminal contempt. Appellant and his wife
originally filed a petition to have the Appellees‟ daughter adjudicated dependent and
neglected. The trial court entered an order, in which the parties could not contact each other
or each other‟s families. Appellant made contact with Appellees‟ daughters on multiple
occasions via text message and once in person. The Appellees filed a petition for contempt
against Appellant, and the trial court found the Appellant guilty of four counts of criminal
contempt and sentenced Appellant to the maximum punishment allowed for each contempt
conviction with the sentences to run consecutively. On the first appeal, this Court affirmed
the convictions of criminal contempt but vacated the sentence and remanded the case to the
trial court with instructions to resentence the Appellant and explain its reasons for the
sentence it imposed. On remand, the trial court found the Appellant guilty of twenty eight
counts of criminal contempt. The trial court imposed twenty-four hour sentences for each
count except one, for which the trial court imposed a five-day sentence. Appellant appeals
from the convictions, the sentence, and the trial court‟s denial of a motion to recuse.
Affirmed in part, reversed in part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is Affirmed
in Part, Reversed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER,
J., and ARNOLD GOLDIN, J., joined.
Brenda Rhoton Clark, Nashville, Tennessee, for the appellant, R.J.
Michael T. Fort and William P. Holloway, Franklin, Tennessee, for the appellees, D.J. and
W. J.
OPINION
I. Background
On October 18, 2011, R.J.1 (“Appellant”) and his wife, S.J., filed a petition in the
Juvenile Court of Williamson County to have A.J., the daughter of D.J. and W.J. (together,
“Appellees”), declared dependent and neglected. The petition alleged that A.J. constantly
engaged in self-destructive behavior, which the Appellees did nothing to prevent, and that the
living conditions in the Appellees‟ home were “intolerable.” The petition also requested that
the trial court place A.J. in R.J. and S.J.‟s custody. On October 21, 2011, the trial court held
a preliminary hearing on the matter. In an order dated October 27, 2011, the trial court
appointed a Guardian ad Litem for A.J., referred the case to the Department of Children‟s
Services for a report, and ordered that A.J. have no further contact with the Appellant and his
family. On December 14, 2011, the trial court entered an agreed order, in which the parties
agreed that the matter was “settled.” The order adjudicated A.J. dependent and neglected for
lack of proper supervision and mandated several requirements for all parties involved,
including that a “reciprocal Restraining Order is in effect that [R.J. and S.J.] and [the
Appellees], as well as their families, must not have any contact with each other. The minor
children of both families are only allowed to have contact during school.”
On June 18, 2012, the Appellees filed a petition to hold R.J. in criminal contempt of
the December 14, 2011 agreed order. Specifically, the Appellees alleged that the Appellant
had violated the “reciprocal restraining order” provision of the order on 183 separate
occasions. On October 3, 2012, the Appellees filed a petition to hold S.J. in criminal
contempt as well. On November 6, 2012, R.J. and S.J. filed separate answers to the petitions
for criminal contempt filed against them. On January 25, 2013, the trial court heard the
petitions for contempt, and, in an order dated February 6, 2013, the trial court found both R.J.
and S.J. guilty of criminal contempt.2
The trial court found the Appellant guilty of four counts of criminal contempt. The
first count arose from Appellant having contact with E.J., another of the Appellees‟
daughters, on May 28, 2012. On that date, E.J. initiated contact with Appellant via text
message because she was fighting with her boyfriend. Despite Appellant‟s awareness of the
trial court‟s no contact order, he responded to E.J.‟s text message, and the two had a
conversation regarding E.J.‟s boyfriend. Although the Appellees‟ petition for criminal
contempt alleged that each individual text message sent by Appellant during this exchange
1
In termination of parental rights cases, it is the policy of this Court to remove the names of minor children
and other parties in order to protect their identities.
2
Because S.J.‟s is not a party to this appeal, we will not discuss her involvement in this case in any detail.
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constituted separate counts of contempt, the trial court considered the exchange a “continuing
event” and found Appellant guilty of one count of criminal contempt arising from the events
of May 28, 2012.
The second count of contempt arose from a second text message conversation between
Appellant and E.J. on June 1, 2012. Like the first incident, E.J. initiated contact with
Appellant via text message. E.J. contacted Appellant because her boyfriend was harming
himself, and Appellant responded to offer advice. Like the first count of contempt, the trial
court considered this conversation a “continuing event” and found Appellant guilty of one
count of criminal contempt arising out of that event.
The third count of contempt arose when Appellant sent a text message to A.J. on June
3, 2012. Appellant sent one message, to which A.J. did not respond. Appellant claimed he
sent A.J. the text message accidentally; however, the trial court found Appellant‟s testimony
was not credible and sentenced him for one count of criminal contempt based upon this
incident.
The fourth count of contempt arose from Appellant speaking directly with A.J. on
June 5, 2012. On that date, Appellant travelled to Nashville to search for A.J. after learning
she had run away from home. Appellant located A.J., and they had a conversation in
Appellant‟s car and then in an apartment that belonged to a friend of A.J.. The trial court
found that Appellant “intentionally sought out [A.J.], had an extended conversation with her,
offered her to stay at his home, if there was nowhere safe for her to go.” The trial court
found Appellant guilty of one count of criminal contempt for this incident.
The trial court sentenced Appellant to ten days in jail and a fifty dollar fine for each
count of criminal contempt. The jail sentences were to run consecutively, for an effective
sentence of forty days in jail and a two-hundred dollar fine. Appellant appealed his
convictions and sentence to this Court. See In re Anna L.J., No. M2013-00561-COA-R3-
JV, 2014 WL 1168914 (Tenn. Ct. App. Mar. 20, 2014) (“In re Anna I”). In In re Anna I,
this Court affirmed Appellant‟s convictions of criminal contempt. Id. at *5. In regard to
Appellant‟s sentence, however, we concluded that
it is not apparent from the record why the court imposed the maximum
sentence for each count of contempt. In the absence of an explanation from
the court of why it imposed the maximum sentence for each count and for the
sentences to be served consecutively, in our review we cannot afford the
sentencing decision a presumption of reasonableness or conclude that the court
did not abuse its discretion.
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Id. at *6. Rather than modify the Appellant‟s sentence, we vacated it and remanded the case
with instructions for the trial court to “state its reasons for imposing concurrent or
consecutive sentences and why the overall length of sentence (the sum of the days sentenced
for each count of contempt) was chosen.” Id.
On July 25, 2014, Appellant filed a motion to recuse Judge Sharon Guffee from the
resentencing hearing. Appellant premised his motion on an alleged ex parte conversation
that the trial judge had with A.J. and A.J.‟s attorney. On August 8, 2014, the trial court held
a hearing on both the motion for recusal and the Appellant‟s sentence in light of the mandate
from this Court. At the hearing, the trial court denied the Appellant‟s motion to recuse.
Instead of merely resentencing Appellant, however, the trial court found Appellant guilty of
twenty eight counts of criminal contempt. The trial court found Appellant guilty of: (1)
twenty counts of criminal contempt arising from the May 28, 2014 contact with E.J.; (2) six
counts of criminal contempt arising from the June 1, 2014 contact with E.J.; (3) one count
arising from the June 3, 2014 contact with A.J.; and (4) one count arising from Appellant‟s
in-person contact with A.J. on June 5, 2014. The trial court sentenced Appellant to twenty
four hours in jail for each count arising from the May 28, June 1, and June 3 incidents, with
the sentences to “all run concurrently.” The trial court concluded that the sentence for the
June 5th incident would run consecutively. The trial court also fined the Appellant fifty
dollars for each incident. On September 22, 2014, the trial court entered an order denying the
Appellant‟s motion to recuse and imposing the sentence.
II. Issues
I. Whether the trial court erred when, on remand, it found Appellant guilty of
additional counts of criminal contempt.
II. Whether double jeopardy prevents the trial court from finding the Appellant guilty
of criminal contempt arising from the Appellant‟s contact with A.J. on June 5,
2011.
III. Whether the sentence imposed by the trial court was excessive.
IV. Whether the trial court erred when it denied the Appellant‟s motion to recuse.
III. Analysis
A. Counts of Criminal Contempt
Appellant contends that the trial court erred when it found him guilty of twenty eight
counts of criminal contempt. Specifically, Appellant argues that the trial court exceeded the
scope of remand when it found him guilty of twenty eight counts of criminal contempt
instead of simply resentencing him. Appellees argue that the trial court had the authority to
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resentence Appellant on more than just the original four counts of criminal contempt because
the trial court never exonerated the Appellant of the remaining counts of criminal contempt
in the original proceeding.
At the first hearing on the petition for criminal contempt, the trial court initially stated
that Appellant was guilty of twenty eight counts of criminal contempt; however, it ultimately
concluded that each incident constituted one count of criminal contempt. The four counts of
contempt were affirmed by this Court in In re Anna I. On appeal, this Court remanded to the
trial court with instructions to “state its reasons for imposing concurrent or consecutive
sentences and why the overall length of sentence (the sum of the days sentenced for each
count of contempt) was chosen.” However, at the August 8, 2014 hearing, the trial court not
only stated its reasons for sentencing, it also increased the number of counts of criminal
contempt from four to twenty eight.
We conclude that the trial court‟s imposition of additional counts of criminal contempt
violates the law of the case doctrine. The “law of the case doctrine” is “a longstanding
discretionary rule of judicial practice which is based on the common sense recognition that
issues previously litigated and decided by a court of competent jurisdiction ordinarily need
not be revisited.” Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank
Bd., 975 S.W.2d 303, 306 (Tenn. 1998). “[U]nder the law of the case doctrine, an appellate
court‟s decision on an issue of law is binding in later trials and appeals of the same case if the
facts on the second trial or appeal are substantially the same as the facts in the first trial or
appeal.” Id. “Therefore, when an initial appeal results in a remand to the trial court, the
decision of the appellate court establishes the law of the case which generally must be
followed upon remand by the trial court….” Id. “[B]y remanding a case with limiting
instructions when error exists only as to certain issues, the courts maintain the integrity of
rulings previously made.” Melton v. Melton, No. M2003-04120-COA-R10-CV, 2004 WL
63437, at *5 (Tenn. Ct. App. Jan. 13, 2004).
In In re Anna I, this Court “affirm[ed] the holding that [Appellant] was in criminal
contempt of court, vacate[d] the sentence imposed and remand[ed] the case for
resentencing.” In re Anna L.J., 2014 WL 1168914 at *11. The instructions to the trial court
on remand did not allow the trial court to re-try the question of whether Appellant was in
contempt. Rather, we remanded to the trial court only for resentencing on the four counts of
criminal contempt that were affirmed. The four counts of criminal contempt became final
once In re Anna I was decided. We conclude that the trial court exceeded the scope of our
remand in holding that the Appellant was guilty of twenty eight counts of criminal contempt.
Accordingly, we reverse the finding of twenty eight counts of contempt and reinstate the
Appellant‟s conviction of four counts of criminal contempt.
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B. Double Jeopardy
Appellant also argues that one of his convictions for contempt should be dismissed
because it violates his constitutional rights. Specifically, Appellant argues that his conviction
for contempt, arising from his in-person contact with A.J. on June 5, 2012, should be
dismissed because he has already been found guilty of a crime arising from those events and
that double jeopardy prevents him from being convicted of another crime arising from those
same events. Appellees argue that this issue is waived because Appellant did not raise this
issue in his first appeal to this Court. In the alternative, Appellees argue that constitutional
double jeopardy protections do not extend to the Appellant‟s separate convictions.
“Generally, issues not raised at trial may not be raised for the first time on appeal.” In
re Valle, 31 S.W.3d 566, 571 (Tenn. Ct. App. 2000). Appellant did not raise a double
jeopardy argument during the remand hearing. Furthermore, Appellant‟s convictions for
criminal contempt were affirmed in In re Anna I. The only issue on remand was the
Appellant‟s sentence. Although the trial court erred in finding Appellant guilty of extra
counts of contempt on remand, the trial court‟s error does not expand the scope of this appeal
to allow Appellant to raise new defenses to his convictions or to raise issues not raised earlier
at the trial level. Accordingly, this issue is waived.
C. Sentence
Appellant challenges the trial court‟s imposition of twenty four hours in jail for each
count of contempt arising from the incidents on May 28, June 1, and June 3. Appellant also
challenges the trial court‟s decision to run his five-day sentence arising from the June 5, 2012
incident consecutively. Appellant argues his sentence is excessive, and the trial court abused
its discretion by imposing consecutive sentences. Appellees argue that the sentence imposed
was within the discretion of the trial court and was not excessive.
“The standard we apply in reviewing sentencing decisions, including the
determination to impose consecutive sentences, is abuse of discretion, accompanied by a
presumption of reasonableness.” In re Anna L.J., 2014 WL 1168914, at *5 (citing State v.
Bise, 380 S.W.3d 682 (Tenn. 2012)). When sentencing for multiple contempt counts, a court
may consider the factors in Tennessee Code Annotated Section 40-35-115(b) to determine
whether the sentences should run concurrently or consecutively. See In re Sneed, 302
S.W.3d 825, 828 (Tenn. 2010). “However, not every contemptuous act, or combination of
contemptuous acts, justifies the imposition of a maximum sentence, particularly when
consecutive sentencing is in play.” Simpkins v. Simpkins, 374 S.W.3d 413, 422 (Tenn. Ct.
App. 2012). “[T]here is a presumption in favor of concurrent sentencing as distinguished
from consecutive sentencing.” Id. at 424 (citing State v. Taylor, 739 S.W.2d 227, 230 (Tenn.
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1987)). The overall length of a sentence must be “justly deserved in relation to the
seriousness of the offense[s].” Tenn. Code Ann. § 40-35-102(1). See also In re Sneed, 302
S.W.3d at 828. The sentence should also be “no greater than that deserved for the offense
committed.” Tenn. Code Ann. § 40-35-103(2). See also In re Sneed, 302 S.W.3d at 829.
When reviewing a sentence for contempt, we review whether the sentence for each
count of contempt is appropriate, and then determine whether consecutive or concurrent
sentencing is appropriate. See In re Sneed, 302 S.W.3d at 828. Tennessee Code Annotated
Section 29-9-103(b) authorizes a sentence of up to ten days for each count of contempt.
Given the nature of the text conversations between Appellant and the Appellees‟ daughters,
we conclude that a twenty-four hour sentence with regard to the first three counts of
contempt was appropriate. In regard to the fourth count, the trial court found Appellant‟s in-
person contact with A.J., on June 5, 2011, to be the “most egregious” and “most intentional”
of all of the contemptuous acts. We agree with the trial court that Appellant‟s actions in
searching for A.J. in flagrant disregard of the no contact order was more egregious than the
other contemptuous actions. Accordingly, we conclude that the trial court did not abuse its
discretion in sentencing Appellant to five days for this act. We also conclude that the trial
court did not abuse its discretion when assessing a fifty dollar fine for each incident.
Having determined that the trial court did not abuse its discretion in its sentencing for
each count, we must also determine whether the trial court abused its discretion in imposing
consecutive sentences. On remand, the trial court stated that sentences arising from the May
28, June 1, and June 3 incidents “will all run concurrently.” Based upon the egregious and
intentional nature of Appellant‟s in-person contact with A.J., the trial court imposed the five-
day sentence for this count to run consecutively to the other counts; this resulted in a total
effective sentence of six days. In creating a consecutive sentence, the trial court relied on the
statutory criteria set out at Tennessee Code Annotated Section 40-35-115(b)(7) that
consecutive sentences may be imposed when a defendant is found guilty of contempt.
This Court has previously upheld consecutive sentencing when the only statutory
factor present in the case was that the defendant had been sentenced for contempt. See
Simpkins, 374 S.W.3d at 425-26. From the record, it appears that Appellant and the
Appellant‟s family have been involved with the Appellees‟ and their family for some time.
The trial court‟s no contact order was put in place to prevent further issues arising between
the two families. We understand why Appellant would have responded to the text messages
he received from E.J.; however, we must agree with the trial court that Appellant‟s searching
for A.J. was both blatant and egregious. From the totality of the circumstances, we conclude
that the sentence imposed, including the five-day consecutive sentence, is “justly deserved”
but no greater than the offense warrants. Accordingly, we affirm the trial court‟s imposition
of concurrent sentences of 24 hours in jail for each count of contempt arising from the May
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28, June 1, and June 3 incidents. We also affirm the imposition of a consecutive, five-day
sentence for the contempt arising from the Appellant‟s in-person contact with A.J. on June 5
and the imposition of a fifty-dollar fine for each incident. Having affirmed the trial court‟s
imposition of these sentences, we apply them to the four counts of contempt that we are
reinstating, resulting in an effective sentence of six days in jail and a $200 fine.
D. Motion to Recuse
Appellant also contends that the trial judge should have recused herself from the
proceedings due to an ex parte conversation between the trial judge and A.J. Appellant relies
on a statement made by W.J. in a November 7, 2011 interview, which was conducted by a
detective of the Williamson County Sheriff‟s Office, for the proposition that the trial judge
conducted an ex parte conversation with the Appellees, A.J., and their lawyer. Appellant
argues that, at the very least, the meeting gives the appearance of impropriety, and, therefore,
the trial judge should have recused herself. Appellees argue that evidence presented at the
hearing demonstrates that an ex parte meeting did not occur, and the trial judge correctly
denied the motion.
We review the trial court‟s ruling on the motion for recusal under a de novo standard
of review with no presumption of correctness. Tenn. Sup. Ct. R. 10B, § 2.01.3 Tennessee
Supreme Court Rule 10, Code of Judicial Conduct Rule 2.11, states that “[a] judge shall
disqualify himself or herself in any proceeding in which the judge‟s impartiality might
reasonably be questioned[.]” “„The right to a fair trial before an impartial tribunal is a
fundamental constitutional right[,]‟” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)), and it remains “important to
preserve the public‟s confidence in a neutral and impartial judiciary.” Id. As we have
emphasized, “the preservation of the public‟s confidence in judicial neutrality requires not
only that the judge be impartial in fact, but also that the judge be perceived to be impartial.”
Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) (citations omitted). The party
seeking recusal bears the burden of proof, and “any alleged bias must arise from extrajudicial
sources and not from events or observations during litigation of a case.” McKenzie v.
McKenzie, No. M2014–00010–COA–T10B–CV, 2014 WL 575908, at *3 (Tenn. Ct. App.
Feb. 11, 2014).
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Prior to the adoption of Tenn. S. Ct. R. 10B, appellate courts reviewed recusal decisions under an abuse of
discretion standard. State v. Hester, 324 S.W.3d 1, 72–73 (Tenn. 2010); Bailey v. Blount County Bd. of
Educ., 303 S.W.3d 216, 239-40 (Tenn. 2010); State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995) (“A motion
for recusal based upon the alleged bias or prejudice of the trial judge addresses itself to the sound discretion of
the trial court and will not be reversed on appeal unless clear abuse appears on the face of the record”).
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“Generally, an ex parte communication requires recusal only where it creates an
appearance of partiality or prejudice against a party so as to call into question the integrity of
the judicial process.” Runyon v. Runyon, No. W2013-02651-COA-T10B, 2014 WL
1285729 (Tenn. Ct. App. March 31, 2014) (citing Johnson v. Johnson, No. M2002-00354-
COA-R3-CV, 2003 WL 61249, at *4-5 (Tenn. Ct. App. Jan. 9, 2003)). Even when a judge
sincerely believes that she can preside over a matter in a fair and impartial manner, recusal is
nonetheless required where a reasonable person “„in the judge‟s position, knowing all of the
facts known to the judge, would find a reasonable basis for questioning the judge‟s
impartiality.‟” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564˗65 (Tenn. 2001) (quoting
Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). “It is an objective test
designed to avoid actual bias and the appearance of bias, „since the appearance of bias is as
injurious to the integrity of the judicial system as actual bias.‟” Shelby County Gov’t v. City
of Memphis, No. W2014-02197-COA-T10B-CV, 2015 WL 127895, at *4 (Tenn. Ct. App.
Jan. 8, 2015) (citation omitted). In examining requests for recusals based on bias, it is
important to keep in mind the fundamental protections that the rules of recusal are intended
to provide. The law on judicial bias is intended “to guard against the prejudgment of the
rights of litigants and to avoid situations in which the litigants might have cause to conclude
that the court had reached a prejudged conclusion because of interest, partiality, or favor.”4
Bean, 280 S.W.3d at 803 (citation omitted).
At the resentencing hearing, Appellant offered a transcript of the November 7, 2011
interview to demonstrate the trial judge‟s ex parte communication. In the interview, W.J.
stated that “Bob Plummer said, there‟s no way she‟ll be taken out of your home. Deputy
Luttrell said, no judge in this state – and actually, she went in and had a private meeting with
a judge, our lawyer, and [A.J.]. And she told [A.J.], you won‟t be removed from your home.”
Appellant‟s motion argued that, in this interview, W.J. was stating that the trial judge was
the one who told A.J., in the presence of only A.J. and A.J.‟s attorney, that A.J. would not be
removed from her home. At the hearing, however, W.J. testified that it was not the trial
judge who made the statement “you won‟t be removed from your home,” but rather a deputy.
W.J. also testified that on the day the supposed ex parte communication took place, she
recalled that both the Appellant‟s lawyer and the Appellees‟ lawyer had a meeting with the
trial judge.
During the hearing, Appellant‟s counsel admitted that she took part in a meeting with
Appellees‟ counsel, A.J., and the trial judge, wherein the trial judge inquired of A.J. whether
she felt safe and if she had been abused. Appellant‟s counsel admitted at the hearing that this
4
The Constitutional provision, Article VI, Section 11 of the Tennessee Constitution, provides
that “[n]o Judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event
of which he may be interested....”
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meeting did not constitute an ex parte communication. We do not find any evidence in the
record that Appellant presented any other proof of an ex parte communication. Because the
only evidence regarding an ex parte communication was specifically refuted by a witness, the
trial judge had no recollection of such a meeting, and Appellant‟s counsel admitted that the
meeting, to which that interview referred, was not an ex parte communication, there was no
abuse of discretion in denying recusal. Accordingly, we affirm the trial court‟s denial of the
motion to recuse.
V. Conclusion
For the foregoing reasons, we reverse the trial court‟s finding of twenty eight counts
of contempt. We affirm the sentence imposed by the trial court and its denial of the motion
to recuse. We remand the case with instructions for the trial court to reinstate the Appellant‟s
original conviction of four counts of criminal contempt and for any further proceedings that
may be necessary and are consistent with this opinion. Costs of this appeal are taxed one-
half to the Appellant, R.J., and his surety, and one-half to the Appellees, D.J. and W.J., for all
of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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