A.W. v. Commonwealth

Dissenting Opinion by

Justice COOPER.

Today’s majority opinion permits a trial court, under the pretext of exercising its contempt powers, to (1) increase a defendant’s punishment post hoc because the defendant -violated a condition of probation and (2) circumvent the explicit maximum sentences authorized by the Unified Judicial Code, specifically KRS 635.060. Because I believe a trial court’s contempt powers should be narrowly defined and employed only when no other remedy is available, I respectfully dissent.

In Hord v. Commonwealth, 450 S.W.2d 530 (Ky.1970), our predecessor court held that to increase a defendant’s punishment upon revocation of probation is “repugnant to the spirit, if not the letter, of the Federal and State Constitutions on [grounds of] former jeopardy, speedy trials, and due process.” Id. at 531. In this case, the juvenile court did exactly that, increasing A.W.’s potential confinement from thirty to sixty days. By labeling A.W.’s wrongdoing as “contempt of court,” instead of a “probation violation,” the juvenile court accomplished indirectly what it could not do directly. Blasi v. Blasi, 648 S.W.2d 80, 82 (Ky.1983) (Leibson, J., concurring) (“[CJourt has no power to do indirectly what it cannot do directly”). The fact that A.W. is a juvenile and not an adult is of no consequence. Juveniles are entitled to the same constitutional protections and fundamental fairness as adults. Application of Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (juvenile court delinquency “hearing must measure up to the essentials of due process and fair treatment”); W.M. v. State, 437 N.E.2d 1028, 1034 (Ind.Ct.App.1982) (juvenile court cannot use its contempt power to incarcerate a juvenile guilty only of a status offense).

Not only did the juvenile court increase the sentence for the underlying offense, it also increased the sentence beyond the maximum authorized by the General Assembly. “The power to define crimes and assign their penalties belongs to the legislative department.” Hoskins v. Maricle, 150 S.W.3d 1, 11 (Ky.2004). KRS 635.060(4) expressly sets out the options a court has in the disposition of a case dealing with a public offender between the ages of fourteen and sixteen. A court may, inter alia, order confinement, “for a period of time not to exceed forty-five (45) days,” KRS 635.060(4), and that limitation applies no matter how many offenses the child committed. Cf. Commonwealth v. W.E.B., 985 S.W.2d 344, 345 (Ky.1998) (child over sixteen years of age could be sentenced under KRS 635.060(5) to no more than ninety days confinement no matter how many offenses child committed). The statute contains no option allowing the court to increase the maximum penalty by denominating one or more offenses as “contempt of court.” See Commonwealth v. Harris, 59 S.W.3d 896, 900 (Ky.2001) (“A general rule of statutory construction provides that the enumeration of particular items excludes other items that are not specifically mentioned.”). Nevertheless, the court imposed a sixty-day sentence, thirty days in excess of that imposed for the underlying offense and fifteen days in excess of that permitted by the statute.

While this is a case of first impression in Kentucky, the overwhelming majority of jurisdictions that have considered this issue have concluded that holding a defendant in contempt of court for violating conditions of probation offends fundamental principles of. fairness. E.g., Alfred v. State, 758 P.2d 130, 132 (Alaska Ct.App.1988) (‘When a defendant violates a condition of probation, we believe that fairness requires that the court adhere to the terms of its agreement, and conduct a probation revocation hearing, not a contempt hearing.”); Jones v. United States, 560 A.2d 513, 516 (D.C.1989) (“[T]he only appropriate sanction [for a violation of probation] is a withdrawal of the previously afforded favorable treatment rather than the imposition of an additional penalty.”); Williams v. State, 72 Md.App. 233, 528 A.2d 507, 508 (1987) (“When a probationer violates, a condition of his probation, he is not subject to an additional punishment for that violation; but rather to the forfeiture of his conditional exemption from punishment for the original crime.”), superseded by statute with regard to restitution orders only as recognized by; Songer v. State, 88 Md.App. 221, 594 A.2d 621, 622 (1991); State v. Williams, 234 N.J.Super. 84, 560 A.2d 100, 104 (App.Div.1989) (“Contempt of court should not be superimposed as an additional remedy in a probation violation setting if the act that occasions the violation itself is not otherwise criminal.”).

The rule has been premised on several well-reasoned bases, some courts stressing the purpose of probation with others utilizing a contract-type rationale. In Williams v. State, the court noted that probation was not a penalty but a conditional exemption from punishment with an eye toward rehabilitation. 528 A.2d at 508.

Probation ... permits a court, in its discretion, to suspend what would be the normal penalty for violation of the criminal law in favor of conditions which, if performed, tend to promote the rehabilitation of the criminal as well as the welfare of society-[T]he criminal defendant is given a second chance — an opportunity to show that by performing the conditions of probation he can function as a law-abiding and useful member of society....

If, however, the defendant fails to perform the conditions of probation he may forfeit the benefits of probation. In such a case ... the original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously afforded the defendant.

Id. (emphasis added) (internal citations and quotations omitted). Rehabilitation is also a primary objective of the juvenile justice system. KRS 600.010(2)(e) (“KRS Chapter 685 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation.”); See also KRS 605.100; Gault, 387 U.S. at 15-16, 87 S.Ct. at 1437 (explaining the underlying theory behind the juvenile justice system: “The idea of crime and punishment was to be abandoned. The child was to be ‘treated’ and ‘rehabilitated’ and the procedures ... were to be ‘clinical’ rather than punitive.”). Thus, the principle that “the original sentence is the only true punishment” for a probation violation applies even more so to a juvenile.

This rule can also be soundly based on a contract-type rationale. The court in Williams also articulated that “[bjecause probation involves a conditional exemption from punishment, rather than a part of the penalty, a court may condition probation upon acts or omissions which it otherwise lacks the authority to impose.” 528 A.2d at 508. In this case the trial court relinquished its authority to immediately impose the thirty-day sentence of confinement in exchange for A.W.’s agreement to accept substantial restrictions on her liberty, i.e., not to violate a court-imposed curfew or to fight with her siblings. As such, probation agreements are in effect a “bargain ... whereby [the convicted individual] is in essence told that if he complies with the requirements of probation, he may become reinstated as a law-abiding member of society.” People v. Chandler, 203 Cal.App.3d 782, 250 Cal.Rptr. 730, 733 (1988). As part of the bargain the defendant is informed that if he or she fails to comply with the requirements of probation, the favorable treatment previously afforded will be withdrawn and the punishment previously withheld will be imposed. Id. To allow a court to subsequently impose a greater sentence than was originally imposed effectively permits the court to secure an agreement on false pretenses. Alfred, 758 P.2d at 132 (“fairness requires that the court adhere to the terms of its agreement, and conduct a probation revocation hearing, not a contempt hearing”).

The majority opinion does not dispute that an adult cannot be held in contempt of court for violating a condition of probation, noting that the cases cited by Appellant are “well reasoned decisions.” Ante, at 6. Instead, the majority distinguishes this case based on the fact that it involves a juvenile and a “very specific Kentucky Juvenile Justice Code ... which ... is replete with references to, and authority for, the appropriate use of the court’s inherent contempt powers .... ” Ante, at 6 (emphasis added). The issue, of course, is whether it is appropriate upon a probation violation to use the court’s inherent contempt powers to substitute a new and greater punishment for the punishment that was probated.

KRS 600.060 simply states: “Notwithstanding any other provision of KRS Chapter 600 to 645, the inherent contempt power of the court shall not be diminished.” This provision is but a recognition by the General Assembly that it has no power to diminish the authority of the courts over judicial matters such as contempt. “The general rule is that any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.” Arnett v. Meade, 462 S.W.2d 940, 946 (Ky.1971). See also Woods v. Commonwealth, 712 S.W.2d 363, 365 (Ky.App.1986) (striking down legislation as overly restrictive of judicial contempt powers). The recitation of language in the Unified Juvenile Code, therefore, does nothing more than acknowledge that the General Assembly did not intend to limit the inherent contempt power of a juvenile court. It should not be construed as legislative encouragement of a court to abuse that power merely because the subject of that abuse happens to be a child. Cf. Gault, 387 U.S. at 13, 87 S.Ct. at 1436 (“[Njeither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”).

To understand when a court should use its contempt powers, it is necessary to understand the nature of contempt. Contempt falls into two categories: civil and criminal. Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206, 208 (1911). “It is not the. fact of punishment but rather its character and purpose, that often serve to distinguish between the two classes of cases.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). Civil contempt is intended to coerce, rather than punish. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). In Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996), we held:

Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant. Examples are the willful failure to pay child support as ordered, or to testily as ordered. While one may be sentenced to jail for civil contempt, it is said that the contemptuous one carries the keys to the jail in his pocket, because he is entitled to immediate release upon his obedience to the court’s order.

Id. at 808. A criminal contempt order, on the other hand, is designed to punish. Burge, 947 S.W.2d at 808.

It seeks to punish conduct which has already occurred rather than to compel a course of action. It is the purpose of the punishment (rather than the fact of punishment per se) that distinguishes civil from criminal contempt. If the court’s purpose is to punish, the sanction is criminal contempt. If the court’s purpose . is to goad one into action or to compel a course of conduct, the sanction is civil contempt.

Commonwealth ex rel. Bailey v. Bailey, 970 S.W.2d 818, 820 (Ky.App.1998). Criminal contempt is conduct “which amounts to an obstruction of justice, and which tends to bring the court into disrepute.” Gordon, 133 S.W. at 208.

It includes those acts done in disrespect of the court or its processes or which obstruct the administration of justice or tend to bring the court into disrepute. It covers not only acts which directly and openly insult or resist the powers of the court or the persons of judges, but to consequential, indirect, and constructive contempts which obstruct the process, degrade the authority, and contaminate the purity of the court.

Mitchell v. Commonwealth, 206 Ky. 634, 268 S.W. 313, 313 (1925).

The contempt order issued against A.W. was not issued “to persuade a contemnor to do what the law requires.” Majority opinion, ante, at 6. It was issued to punish A.W. for violating her probation. A.W. did not “hold the keys to the jail in her pocket,” for she could not undo her curfew violation as one can be coerced to testify or to surrender child support payments. The order was clearly one for criminal contempt.

A court’s contempt power “is sparingly to be used.” Gompers, 221 U.S. at 450, 31 S.Ct. at 501. “[Ojnly the least possible power adequate to the end proposed should be used in contempt cases.” United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975) (internal citations and quotations omitted); see also, Young v. United States ex rel. Vuitton et. Fils S.A., 481 U.S. 787, 800, 107 S.Ct. 2124, 2134, 95 L.Ed.2d 740 (1987). These principles oí restraint exist to “ensured that the court will exercise its inherent power of self-protection only as a last resort.” Young, 481 U.S. at 801, 107 S.Ct. at 2134. Certainly, it should not be used as a pretext to increase punishment beyond that authorized by the legislature for criminal conduct — especially when the offender is a child.

The act for which A.W. was punished was not one that obstructed justice, insulted the court, degraded its authority, or tended to bring the court in disrepute or contaminate its purity. She simply violated a condition of her probation. This curfew violation did not threaten the juvenile court’s authority, for the court had available the appropriate legal remedy for a probation violation, ie., revocation of probation and application of the underlying penalty. Clearly, the juvenile court did not exercise proper restraint in the use of its contempt powers. Just as obviously, the court exceeded its authority by imposing a punishment that exceeded both that which had been previously imposed for the underlying offense and that which has been authorized by the legislature.

Accordingly, I dissent.

KELLER, J., joins this dissenting opinion.