THEODIS N. THOMPSON, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PRAIRIE COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
CR-2014-25] HONORABLE TOM HUGHES, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
Theodis N. Thompson, Jr., appeals from an order of the
Prairie County Circuit Court finding him in criminal contempt
for his failure to appear at a scheduled hearing. Pursuant to
the circuit court's order, Thompson served a sentence of
twenty-four hours imprisonment. On appeal, Thompson argues
that his right to due process was violated because he was
deprived of proper notice of the criminal-contempt charge. In
response, the State responds that because Thompson has
already served his sentence of imprisonment, Thompson's
appeal is moot and we should dismiss his appeal. We reverse
facts related to this appeal stem from Thompson's
representation of defendant Michael Baker on criminal charges
in the Prairie County Circuit Court. Baker's case was
scheduled for a hearing on September 22, 2015. On August 28,
2015, Thompson sent a letter to the circuit court and
indicated that he was unable to attend that September 22,
2015 hearing because he was scheduled to attend a
continuing-legal-education course ("CLE") that day.
On September 4, 2015, the circuit court sent a letter to
Thompson acknowledging receipt of Thompson's August 28,
2015 letter. The circuit court's letter indicated that if
Thompson wished to have the September 22, 2015 hearing
continued, he should file a motion for continuance. On
September 11, 2015, Thompson filed a motion for continuance,
but the court never acted on the motion.
September 22, 2015, neither Thompson nor Baker appeared at
the hearing. Prosecutor Rebecca Reed McCoy called Thompson,
and Thompson indicated that he was attending a CLE and was
not coming to court. McCoy and Thompson rescheduled
Baker's hearing for November 17, 2015. On September 23,
2015, Thompson faxed a letter to the circuit court to confirm
that the hearing was scheduled for November 17, 2015, at 9:00
a.m. At the conclusion of the September 22, 2015 hearing, the
circuit court instructed the prosecutor to prepare an order
to show cause.
September 23, 2015, the State, by and through Deputy
Prosecutor Timothy O. Isaac, filed its petition to appear and
show cause. On September 24, 2015, the circuit court granted
the State's petition and ordered Thompson to appear and
show cause on November 17, 2015, at 9:00 a.m. The order
reflected that the notice had been served according to Rule 5
of the Arkansas Rules of Civil Procedure.
November 17, 2015, Thompson appeared for Baker's
probation-revocation hearing. The circuit court announced
that it would first hear the order to show cause. In response
to the circuit court, Thompson explained that he was there to
represent Baker at the probation-revocation hearing and
alleged that he had not received notice of the order to show
cause. The following colloquy occurred:
I just want to determine if the Order to Show Cause,
which I'm looking at now, which requested that Counsel be
cited to appear in front of this Court to show cause, if any,
why he failed to appear and represent his client, Michael
Baker, in case CR-2014-25, which case was set for hearing on
September 22, 2015. The Court having examined the docket
entries, considered the facts presented, and reviewed
correspondence with the Court and Theodis M. Thompson, Jr.,
finds that it should be and is hereby granted. And it is
hereby ordered that you are to appear at the Courthouse today
at 9:00 to show why you should not be adjudged in contempt of
court. It goes on, service may be had as provided by Rule 5
of the Arkansas Rules of Civil Procedure. And I don't see
I have a Certificate of Service that said it was placed
in first class mail on September 24, 2015.
I filed a motion -- Your Honor, I filed a Motion for a
Continuance on this matter. I just was retained on this and I
was assured by court staff that I would be able to get the
continuance. Unfortunately, an Order had not been presented
allowing my Motion for Continuance. I do believe that the
actual Motion that I filed after being retained on this
matter requesting that this matter be continued unfortunately
there wasn't ever a Motion --excuse me -- an Order
granting that Continuance.
Counsel, you do understand that filing a Motion is not
the same as being an order?
I realize that, Your Honor. And I understand -- Court:
And if you're testifying - - or if you're
representing to me that someone other than I have the power
or implied they had the power to grant a continuance, I would
find that very difficult -
And, Your Honor, I'm not saying that at all. I'm
just simply saying, Your Honor, that based on my belief that
the Order will be sent -- and, Your Honor, not looking back
at the file and seeing the Order being presented, it was my
understanding that it was going to be someone --it was going
to be a continuance made, I would have asked for someone to
stand in my stead on that particular date, Your Honor, had I
known that that was not going to be given. And also to --
Well, Counsel, at this point, the Order has been served.
You are here. I intend to have a hearing on this. We can do
it today. That's the day it's scheduled for. Are you
ready to proceed, Mr. Issac?
The State is ready to proceed.
And, Mr. Thompson, you're here and it's not a
matter of if you're willing to proceed. We are
. . . And, Mr. Thompson, do you plan to testify?
No, Your Honor.
Very good. And who do you intend to call as a witness?
And, Your Honor, just to make sure, we're hearing the
matter on the Order to Show Cause, is that correct?
The Order to Show Cause -- you should have a copy of that
That's what I'm saying. I don't have a copy
of that Order. I mean, I don't have that.
Well, then there's going to have to be some
presentation to establish that you have been properly served.
I mean, if that's going to require me to testify as
far as the Order to Show Cause, then yeah, I would like to
testify. But I don't have a copy of that particular
. . . .
Let Mr. Issac respond. Mr. Issac was to serve the Notice.
The Order reflects, that was signed by the Court, that it may
be served in accordance with Rule 5 of the Arkansas Rules of
Civil Procedure. We now have Mr. Thompson alleging that he
was not served in accordance with Rule 5. If he wasn't
well he'll be re-served. If he was and there's proof
of that, the Court is going to go forward.
Well, the State just asserts that we believe we followed
the Rules of Civil Procedure since it is an already filed
case that it's part of, that first class mailing is
So you sent it by first class mail?
I did. And it's presumed to be served upon depositing
into the mail. So we believe it's seen served.
Okay. I find that it has been served as far as the Rules
of Procedure are required. And Mr. Thompson appears to be
aware of the facts surrounding the incident. So we're
going to go ahead and --
No, Your Honor. I mean, my understanding today was that
we would have our hearing scheduled for my client's plea
and arraignment regarding his revocation. I don't
understand the facts on this Order to Show Cause. I was never
given notice of this. I had no knowledge of this. And
standing here before you today saying that, you know, my
Motion for Continuance, which the Court has record of,
although an Order hadn't been entered, I wasn't aware
of this matter going forward on an Order to Show Cause. I
don't believe that I'm in violation of --
That's what we have trials for. Go forward, Mr.
Issac. And, Mr. Thompson, you may have a seat. Now, Mr.
Isaac, do you have proof of service?
I have my copy of the Certificate of Service.
It's not been filed with the Court.
It was filed on September 24, 2015.
It may show that, but it's not in the Court file. If
it is, it's not in the order it should be.
If I can approach, you can see my copy.
Yes, sir. Well, this is in the court file. . . .
. . . .
. . . Okay, here we go. I hereby certify that on
September 24, 2015 I deposited a pleading with the United
States Postal Service with first class mail postage prepared
addressed to Theodis M. Thompson, Jr., it gives the address,
and that's attached to the Petition for Order to Show
Cause. I do see that now.
conclusion of the hearing, the circuit court found Thompson
in criminal contempt of court for his failure to appear for
the September 22, 2015 hearing and sentenced him to
twenty-four hours imprisonment in the Prairie County Jail.
Thompson served his sentence of imprisonment, and thereafter,
filed a motion for new trial, which the circuit court denied
without a hearing. On December 15, 2015, Thompson filed his
notice of appeal.
appeal, Thompson argues that his right to due process was
violated because he was deprived of proper notice of the
criminal contempt charge. The standard of review in a case of
criminal contempt is well settled: an appellate court views
the record in the light most favorable to the trial
court's decision and sustains that decision if it is
supported by substantial evidence. Conlee v. Conlee,
370 Ark. 89, 257 S.W.3d 543 (2007). Substantial evidence is
evidence of a sufficient force and character to compel a
conclusion one way or another, forcing the mind to pass
beyond suspicion or conjecture. Id.; Witherspoon
v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). Where a