Vondregus Bailey v. Commonwealth of Kentucky

RENDERED: JULY 29, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0039-MR
VONDREGUS BAILEY APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 19-CR-00098
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, TAYLOR, AND L. THOMPSON, JUDGES.
CALDWELL, JUDGE: Vondregus Bailey (“Bailey”) appeals his conviction for
indirect criminal contempt and sentence of ninety (90) days’ incarceration to be
served following completion of a five (5) year sentence in the underlying matter
which brought him before the court. Having reviewed the record, the briefs of the
parties, and the order of the trial court, we affirm.
FACTS
Bailey was indicted for receiving stolen property over $10,000 and
being a persistent felony offender (PFO) in the first degree in the Hardin Circuit
Court in 2019. Bailey, who is not from Kentucky, was pulled over on Interstate 65
in Elizabethtown while driving a stolen vehicle. During his trial in 2019, he
reached an agreement with the prosecution which resulted in the entry of a guilty
plea to the receiving stolen property charge and dismissal of the PFO charge. He
was sentenced to imprisonment of five (5) years. At all times, he was represented
by appointed counsel.
Bailey timely filed a pro se motion for shock probation, which was
denied on October 2, 2019. A subsequent motion for shock probation was filed by
counsel, which was denied on November 19, 2019. In response to the second
denial, Bailey filed a pro se “Motion Requesting for Clarity for Racism/Racket.”
In this “motion,” Bailey used vulgar words to refer to the judge and made
allegations of unfairness in sentencing based on his race, not his criminal history.1
The judge entered an order transferring the matter to another division and declaring
the letter to be an example of indirect criminal contempt.
1
In the document, Bailey referred to the presiding judge at the time, the Honorable Kelly Mark
Easton, as a “racist motherfucker” and “a piece of shit” and alleged, despite a decades-long
criminal history including multiple prior felony convictions in various states, that he was denied
shock probation only because of his race, and alleged white defendants were granted probation
or lower sentences than black defendants before the Hardin Circuit Court.
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An order was entered by the Second Division, which received the
case, scheduling a hearing for January 21, 2020. An evidentiary hearing was
scheduled but was delayed several times. On June 23, 2020, a hearing was held.
Bailey appeared telephonically, while his appointed counsel, the court, and
prosecutor appeared via Zoom.2 Counsel asked for a continuance of the hearing so
that Bailey might be transported as the two could not maintain confidential
communications because his client was at a county jail facility across the state, and
he was in his office in Bullitt County appearing via Zoom. The court refused such
request but allowed counsel time to file briefs on the matter. The court took
judicial notice of the letter sent by Bailey to the judge who presided over his trial
and denied him shock probation, which constituted the evidence in the matter.
Bailey never disclaimed authorship of the letter. Following the hearing, counsel
for Bailey filed a brief with the court, but the Commonwealth did not.
In November, the Second Division entered an order finding Bailey to
be guilty of indirect criminal contempt. In the order, the court formally took
judicial notice of the “motion” Bailey had filed and found that it was beyond
question that Bailey had been the author of the motion, comparing the penmanship
and form with various pro se pleadings Bailey had previously filed in the matter.
2
The hearing occurred during the novel coronavirus pandemic when the Court of Justice was
closed to in-person appearances by the Chief Justice of the Kentucky Supreme Court via
Administrative Order 2020-43.
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The court went on to find that by clear and convincing evidence the contents of
said “motion” brought the court into disrepute and such was indirect criminal
contempt. The court sentenced Bailey to ninety (90) days for indirect criminal
contempt.
The matter appeared again on the court’s docket after the entry of the
order, and it was determined that Bailey had been paroled and was no longer in the
Commonwealth. He filed a motion for belated appeal through counsel in January
of 2021, which was granted by this Court. Having reviewed the record, the briefs
of the parties, and the order of the court, we affirm.
STANDARD OF REVIEW
A trial court has broad discretion in managing the courtroom and
utilizing the tools it possesses to do so. Because indirect criminal contempt
involves the imposition of criminal penalties, on review we apply an abuse of
discretion standard. This is in accord with the review required in a typical criminal
case involving review of actions when the court has a panoply of choices in how to
proceed.
While it may well be appropriate to recognize a court’s
very broad discretion to respond as needed to the petty
sort of direct contempts that threaten the orderliness and
decorum of the court’s proceedings, it is a different
matter entirely to say that a court can impose substantial
criminal penalties for indirect contempts, with all the
stigma and other collateral consequences attending such
penalties, without being subject to the ordinary criminal-
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judgment standards of review. If the constitutional rights
the Supreme Court has held are applicable to criminal
contempt proceedings are to provide the protection they
are meant to provide, then appellate review of their
application in such proceedings must be more searching
than the highly deferential standard of review adopted by
the Court of Appeals in this case. Appellate review of
criminal contempt sanctions should be commensurate
with the review provided in regular criminal cases of a
comparable seriousness, as suggested by the penalties
imposed.
Cabinet for Health & Fam. v. J.M.G., 475 S.W.3d 600, 624 (Ky. 2015).
When reviewing a trial court action for an abuse of discretion, we
look toward whether the trial court’s ruling is reasonable, appropriate, and
supported by the law.
Our Supreme Court has defined abuse of discretion as
conduct by a court in acting arbitrarily, unreasonably,
unfairly, or in a manner “unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999).
Kentucky River Cmty. Care, Inc. v. Stallard, 294 S.W.3d 29, 31 (Ky. App. 2008).
ANALYSIS
A person can be held to be in either civil or criminal contempt by a
court. A review of the types of contempt and the behavior each seeks to ameliorate
or punish follows.
An explanation of a court’s contempt powers is in order.
“Contempt is the willful disobedience toward, or open
disrespect for, the rules or orders of a court.” Contempt
can be classified as civil or criminal. Civil contempt is
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when someone fails to follow a court order to do
something. That something is usually for the benefit of a
party litigant (e.g., pay child support, allow visitation, fix
something by a certain date, move a driveway, clean up a
spill, close a business by a certain hour, provide
discovery, etc.). A judge may incarcerate someone for
civil contempt in order to motivate the person to obey the
court order, but the contemptuous one is entitled to be
released upon compliance with the court’s order.
Criminal contempt, on the other hand, is when a person
disobeys a court order out of disrespect for the rules or
orders of court. A contemptuous person can be
incarcerated for criminal contempt; but unlike civil
contempt, the primary purpose of criminal contempt is to
punish the contemptuous conduct.
Criminal contempt can be either direct or indirect.
A direct contempt is committed in the presence of
the court and is an affront to the dignity of the
court. It may be punished summarily by the court,
and requires no fact-finding function, as all the
elements of the offense are matters within the
personal knowledge of the court. In re Terry, 128
U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405 (1888).
Indirect criminal contempt is committed outside
the presence of the court and requires a hearing
and the presentation of evidence to establish a
violation of the court’s order. It may be punished
only in proceedings that satisfy due process.
Cooke v. United States, 267 U.S. 517, 45 S. Ct.
390, 69 L. Ed. 767 (1925).
Gormley v. Jud. Conduct Comm’n, 332 S.W.3d 717, 725-26 (Ky. 2010) (citations
and footnotes omitted).
Bailey filed a “motion” which contained contemptuous language, so
we find that this is an example of indirect criminal contempt not committed in the
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presence of the court. We find that the hearing afforded Bailey proper due process
as he was given the chance to defend against the allegation of contempt. The fact
he may not have availed himself of that opportunity matters not and he does not
complain on appeal that his due process rights were violated.
On appeal, Bailey insists that the finding of contempt violated his
right to freedom of speech. He argues that the terms “racist motherfucker” and
“piece of shit” were not obscenity. Obscenity carries no protection as “political
speech,” while speech which is not profane is entitled to such protection.
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766, 769, 86 L. Ed.
1031 (1942). We do not have to decide whether the vulgar language employed by
Bailey constituted obscenity not entitled to First Amendment protections, because
the accusations made utilizing the profanity are not entitled to such protections.
As pointed out by the Commonwealth, it was the inclusion of
defamatory allegations of unfairness and collusion against a sitting judge which
constitutes the contempt in Bailey’s missive. Speech is “defamatory if it tends to:
‘(1) bring a person into public hatred, contempt or ridicule; (2) cause[s] him to be
shunned or avoided; or, (3) injure[s] him in his business or occupation.’” Yancey
v. Hamilton, 786 S.W.2d 854, 858 (Ky. 1989) (quoting McCall v. Courier-Journal
and Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981)). Defamatory speech is
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not protected by the First Amendment3 and if it is made with reckless disregard for
its truthfulness, is actionable.
A defamatory statement about a public figure is
actionable only if the statement is shown to have been
made with actual knowledge of its falsehood or with
reckless disregard of the truth. Sparks v. Boone, 560
S.W.2d 236, 238 (Ky. App. 1977).
Doe v. Coleman, 436 S.W.3d 207, 210 (Ky. App. 2014).
In the offending filing, Bailey accused the judge who denied him
shock probation of doing so because of his race, accusing him of treating white
defendants before his court accused of much more serious crimes more favorably
than Bailey was treated. He accused the judge of colluding with the prosecution.
Both of these baseless allegations cast the judge in a bad light. See Grant v.
Dortch, 993 S.W.2d 506, 509 (Ky. App. 1999).
The record indicates that Bailey was from Mississippi and Indiana,
having spent significant parts of his life in both states, and having spent significant
times in the correctional facilities of both locales. He was simply driving through
3
The freedom of speech has its limits; it does not embrace certain categories of
speech, including defamation, incitement, obscenity, and pornography produced
with real children. See Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 127, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991)
(KENNEDY, J., concurring).
Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403(2002).
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Kentucky on the expressway in a stolen vehicle. Bailey had no prior knowledge of
the judge and knew of him only from the time spent in the courtroom during his
trial and its pendency. Thus, he had no basis for the allegations in the “motion.”
The bare defamatory allegations, peppered as they were with obscenity, were
contemptuous of the court.
CONCLUSION
The order of the Second Division so finding and sentencing Bailey to
ninety (90) days’ imprisonment for such is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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