Lessley v. Shope, Jr. ( 1998 )

MARY E. LESSLEY, )
)
Petitioner/Appellee, ) Appeal No.
) 01-A-01-9710-CV-00617
v. )
) Robertson Circuit
CHARLES SHOPE, JR., ) No. DR-7862
)
Respondent/Appellant. )
FILED
July 17, 1998
COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR ROBERTSON COUNTY
AT SPRINGFIELD, TENNESSEE
THE HONORABLE CAROL CATALANO, JUDGE
JOHN KNOX WALKUP
Attorney General & Reporter
SUE A. SHELDON
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 5th Avenue, North
Nashville, Tennessee 37243
ATTORNEYS FOR PETITIONER/APPELLEE
COLLIER W. GOODLETT
Assistant Public Defender
19th Judicial District
109 S. Second Street
Clarksville, Tennessee 37040
ATTORNEY FOR RESPONDENT/APPELLANT
REVERSED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This case involves an appeal from an order of the Circuit Court of
Robertson County, Tennessee, imposing a fifty dollar ($50.00) fine upon the
appellant together with a ten (10) day jail sentence for contempt of court in
failing to pay child support.
At the behest of the District Attorney's Office on July 3, 1997, Judge
Carol Catalano issued an order of attachment for the body of the appellant,
Charles Shope, Jr., reciting as follows:
You are hereby commanded to arrest the above named
Respondent and have him appear on August 20, 1997 at 1:30
P.M. before the CIRCUIT Court for ROBERTSON County,
Tennessee to answer a charge that you are in contempt of
court for failing to comply with the orders of the Court to-
wit: the payment of child support and/or failure to appear for
Court. At the above hearing, if you are found to be in
contempt of court, the District Attorney's Office will request
incarceration.
The attachment was issued pursuant to Tennessee Code Annotated
section 36-5-405(d) and bond was set in the amount of ". . . $2,500.00 cash".
Appellant was arrested on said attachment on July 14, 1997, with
hearing set for 1:30 p.m., August 20, 1997.
On July 23, 1997, appellant filed a pro se petition for a writ of habeas
corpus in the Circuit Court for Robertson County, Tennessee, asserting a right
to immediate release from confinement.
On July 25, 1997 appellant filed an affidavit of indigency before
Honorable John H. Gasaway, Jr. Judge Gasaway entered an order that same day
finding appellant indigent, appointing counsel and providing as follows:
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IN THIS CAUSE, it appearing to the court that the
Defendant is before the Court on a charge of Contempt for
failure to pay child support and
It further appearing to the Court that the defendant is
indigent and unable to employ counsel and is thereby
qualified for appointed legal counsel,
It is therefore ordered by the Court that the Public Defender,
a member of the Robertson County Bar Association is hereby
appointed to represent the siad (sic) defendant.
This order further provided in a hand written addendum from Judge
Gasaway bearing the same date:
The court further orders that the current cash bond of $2,500
be converted to a recognizance bond of $2,500. Further, the
current hearing date of August 20, 1997 at 1:30 p.m. shall
remain as set. A copy of this order shall be delivered to the
public defender and to the respondent, receipt to be
acknowledged by the respondent. Writ of habeas corpus
denied.
On August 16, 1997, still acting pro se, the appellant filed an extensive
motion to dismiss on various constitutional and statutory grounds.
The petition for contempt was heard on September 17, 1997 and an
"appearance mittimus" was issued by Judge Catalano on September 17, 1997
with a hand written notation "ten days to serve w/ credit for time served."
On September 18, 1997, the appellant, again acting pro se, filed a
notice of appeal from the judgment of September 17. On that same date he
likewise filed a notice that no transcript or stenographic record of the proceeding
of September 17, 1997 would be filed on the appeal.
On September 25, 1997 Judge Catalano entered an order approved for
entry by John H. Lynch, child support attorney for the District Attorney's Office,
which provided as follows:
This cause came on to be heard on the 17th day os (sic)
September, 1997, before the HONORABLE CAROL
CATALANO, Judge of the DOMESTIC RELATIONS
COURT, upon an Attachment, the Respondent appearing in
person. It appearing that $1,104.76 has been paid in this
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matter since the Respondent was ordered to pay $50.00 (plus
5% clerks fee), per week beginning August 20, 1991. The
arrearage now owing in this matter is $18,149.99 including
a previous judgment awarded on 6-05-96. The last payment
made was on 3-25-92.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED by the Court that the Respondent is found in
contempt and is sentenced to spend 10 days in the Robertson
County Jail. Siad (sic) sentence is to be suspended to 10
days already served. The Petitioner is awarded a judgment
for $18,149.99 (plus 5% clerks fee), the amount of back
support owing in this matter.
The Respondent shall pay $50.00 per week (plus 5%
clerks fee), and $25.00 per week (plus 5% clerks fee) on the
arrearage owing in this matter beginning 9-26-97.
Respondent is to pay a $50.00 fine plus any Court costs in
this matter by 10-17-97.
Appellant had filed his pro se notice of appeal to the Court of Criminal
Appeals. On October 28, 1997 that court acknowledged that it was without
jurisdiction to consider the appeal under Tennessee Code Annotated § 16-5-108
and transferred the case to this court pursuant to Tenn. R. App. P. 17.
On December 3, 1997, this court ordered that the trial judge certify the
following question for review, "whether the appellant was represented by
counsel or whether he executed a written waiver of his right to the aid of counsel
after being advised in open court of said right."
On December 10, 1997 Judge Catalano responded to this court's order
by certifying, "that the record is silent as to whether the appellant was
represented by counsel and that there is no written waiver of the appellant's right
to the aid of counsel."
On December 11, 1997, an order was entered in this court extending the
time for the filing of the appellant's brief through January 12, 1998. On January
22, 1998, public defender Michael R. Jones was granted thirty (30) days within
which to file a brief on behalf of the appellant. On January 23, 1998, Sue A.
Sheldon on behalf of the Attorney General of Tennessee filed a notice of
appearance before this court. On April 22, 1998, Honorable Collier W. Goodlett,
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Assistant Public Defender, filed a brief in this case on behalf of the appellant and
therein waived oral argument. On May 22, 1998, Honorable Sue A. Sheldon on
behalf of the Attorney General of Tennessee filed a brief of the appellee also
waiving oral argument.
Such is the state of the record before this court.
Appellant asserts in part the following:
ASSIGNMENT OF ERROR NUMBER ONE: THAT
THE CHANCERY COURT, AFTER HAVING
APPOINTED COUNSEL TO REPRESENT THE
RESPONDENT, ERRED IN PROCEEDING WITHOUT
COUNSEL PRESENT FOR THE RESPONDENT.
ASSIGNMENT OF ERROR NUMBER TWO: THAT
THE CHANCERY COURT AFTER HAVING APPOINTED
COUNSEL TO REPRESENT THE RESPONDENT ERRED
IN SENTENCING THE RESPON D E NT TO
INCARCERATION WHEN COUNSEL FAILED TO
APPEAR TO REPRESENT THE RESPONDENT AND THE
RESPONDENT HAVING NOT WAIVED HIS RIGHT TO
COUNSEL.
Counsel thereupon briefs extensively and convincingly these issues
acknowledging his debt to academic sources. Says counsel:
We have all drunk from wells we did not dig. Anon.
Counsel has drunk deeply and shamelessly from the
following wells: 30 Wm. & Mary L. Rev. 627, Spring, 1989,
THE RIGHT TO APPOINTED COUNSEL FOR INDIGENT
CIVIL LITIGANTS: THE DEMANDS OF DUE PROCESS,
William L. Dick, Jr.; 50 U. Chi. L. Rev. 326, Winter, 1983,
THE INDIGENT DEFENDANT'S RIGHT TO COURT-
APPOINTED COUNSEL IN CIVIL CONTEMPT
PROCEEDINGS FOR NONPAYMENT OF CHILD
SUPPORT, Robert Monk; 9 St. Thomas L. Rev. 767, Spring
1997, INDIGENT CONTEMNORS BEWARE: IN
FLORIDA, YOU MAY BE INCARCERATED WITHOUT
BEING APPOINTED COUNSEL!, Neal G. Bourda; 14 N.M.
L. Rev. 275, Spring, 1984, FATHERS BEHIND BARS:
THE RIGHT TO COUNSEL IN CIVIL CONTEMPT
PROCEEDINGS, Michele Hermann and Shannon Donahue.
In brief before this court the state concedes and this court agrees that
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the contempt charged in this case was criminal contempt and that the trial court
having appointed counsel for the defendant could not then proceed to try the
merits of the criminal contempt petition in the absence of appointed counsel and
without a waiver by the appellant of his right to counsel. Rule 13 Tenn. Sup. Ct.
Rules; Storey v. Storey, 835 S.W.2d 593 (Tenn. App. 1992).
Appellant asserts three other issues on appeal; in view of our reversal
on other grounds we find consideration of these issues to be unnecessary.
This court does not attempt in this case to determine the parameters
within which indigent defendants are entitled to appointed counsel in civil or
criminal contempt cases based upon failure to pay child support. We only
determine that in this case, where the trial court has found indigency and
appointed counsel, that it is improper to proceed with the merits of criminal
contempt in the absence of that appointed counsel, without first securing a
knowing waiver from the appellant of his right to be so represented.
The judgment of the trial court finding the appellant in criminal
contempt and sentencing him to incarceration for a fixed period of time is
reversed, and the cause is remanded to the trial court for further proceedings not
inconsistent with this opinion. Costs of this appeal are assessed against the
appellee.
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WILLIAM B. CAIN, JUDGE
CONCUR:
__________________________________
BEN H. CANTRELL, JUDGE
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__________________________________
WILLIAM C. KOCH, JR., JUDGE
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