McDonaldv.Commonwealth

Commonwealth of Kentucky Court of AppealsDec 22, 2016
NO. 2015-CA-001177-MR (Ky. Ct. App. Dec. 22, 2016)

NO. 2015-CA-001177-MR

12-22-2016

LAZARUS MCDONALD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Jason A. Hart Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW C. SELF, JUDGE
ACTION NO. 12-CR-00541 OPINION
REMANDING

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BEFORE: CLAYTON, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Lazarus McDonald appeals from Christian Circuit Court orders finding him in contempt of court.

McDonald entered guilty pleas to multiple charges under two separate criminal indictments. The charges included: eight counts of theft by unlawful taking over $500; first-degree criminal mischief; two counts of theft by deception over $500; being a first-degree persistent felony offender; and operating a motor vehicle on a suspended operator's license. In accordance with the terms of his plea agreement, McDonald was required to pay restitution in the amount of $28,750.08. McDonald planned to use his Social Security arrears to fulfill part of the restitution obligation.

When McDonald entered his guilty pleas on April 1, 2015, his attorney told the court that McDonald could pay $3,000 towards his restitution by his final sentencing date if he was granted monitored conditional release. The Commonwealth opposed the pretrial release as not being "part of the deal." The trial court agreed to pretrial release conditioned on McDonald going to the Social Security office to get documentation regarding the amount of back pay due to him and to make payment toward restitution.

When he returned to court on July 1, 2015, for his final sentencing, McDonald admitted that he had not paid anything towards restitution, but explained that he had believed the condition of his release was to provide the Commonwealth with proof that he had an income coming in, and to bring some funds to the final sentencing. He informed the court that he had five hundred dollars with him on a Social Security debit card that he could pay towards restitution. The Commonwealth argued that McDonald should be held in contempt of court because he was released in part on the understanding that he intended to make a restitution payment after receiving his Social Security arrears. Defense counsel argued that a hearing should be scheduled before a finding of contempt was made. The trial court finally stated that it would hold McDonald in contempt, but allow him to purge himself of the contempt by paying the five hundred dollars towards his restitution. McDonald agreed to this arrangement.

The court then proceeded with McDonald's sentencing. Upon discovering that the court was not granting him probation, however, McDonald advised the court that he would not abide by his agreement to remit the funds. The trial court ordered him taken to the clerk's office to provide the PIN for the debit card containing the five hundred dollars. Once at the clerk's office, he refused to provide the PIN. He was returned to the courtroom and the trial court held him in contempt for refusing to provide the PIN. His attorney asked that the contempt proceedings be passed for two weeks until he could speak with his client. The trial court agreed.

McDonald returned to court on July 15, 2015. The trial court stated that the basis for the hearing was direct contempt, on the grounds that the court had given McDonald an order, in the attorneys' presence, with which he refused to comply. McDonald continued to refuse to provide the PIN, or to answer direct questions. The trial court advised the parties that it would sua sponte grant McDonald shock probation the following month, bring him back to court and direct him to provide the PIN number to the clerk. If McDonald failed to do so, the trial court stated that it would hold him in contempt for six months. The trial court further stated that it would repeat this process indefinitely. This appeal by McDonald followed.

McDonald argues that the trial court abused its discretion by imposing contempt sanctions against him without due process and a hearing.

Criminal contempt is conduct "which amounts to an obstruction of justice, and which tends to bring the court into disrepute." . . .

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. 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.
Commonwealth. v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (citations omitted).

McDonald argues that the alleged contempt in his case was indirect because the purported payments were made (or not made) outside the trial court's presence. It is unclear to this Court how many times McDonald was found in contempt. During the July 1 hearing, it appears as though the trial court holds McDonald in contempt twice, once for not paying restitution before the sentencing hearing and again for not providing his PIN; however, at the July 15 hearing, the statements made by the trial court suggest the court was only holding him in contempt for refusing to provide his PIN.

We cannot proceed with reviewing the merits of this appeal until the trial court clarifies its orders regarding its findings of contempt. Did the court hold McDonald in contempt for not making any payments toward restitution before the sentencing hearing and for not later providing his PIN or did the court only hold him in contempt for his refusal to provide his PIN?

Because the record is not clear as to how many findings of contempt the court made, we remand this case and direct the trial court to clarify its orders.

ALL CONCUR. BRIEFS FOR APPELLANT: Jason A. Hart
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky