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Thompson v. State

Supreme Court of Arkansas

November 10, 2016

THEODIS N. THOMPSON, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PRAIRIE COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. CR-2014-25] HONORABLE TOM HUGHES, JUDGE

         REVERSED AND DISMISSED.

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, Associate Justice

         Attorney 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 and dismiss.

         The 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.

         On 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.

         On 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.

         On 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:

The Court:

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 service.

Prosecutor Issac:

I have a Certificate of Service that said it was placed in first class mail on September 24, 2015.

Thompson:

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.

The Court:

Counsel, you do understand that filing a Motion is not the same as being an order?

Thompson:

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 -

Thompson:

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 --

The Court:

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?

Prosecutor Issac:

The State is ready to proceed.

The Court:

And, Mr. Thompson, you're here and it's not a matter of if you're willing to proceed. We are proceeding.

Thompson:

Okay.

The Court:

. . . And, Mr. Thompson, do you plan to testify?

Thompson:

No, Your Honor.

The Court:

Very good. And who do you intend to call as a witness?

Thompson:

And, Your Honor, just to make sure, we're hearing the matter on the Order to Show Cause, is that correct?

The Court:

Yes, sir.

Thompson:

Okay.

The Court:

The Order to Show Cause -- you should have a copy of that Order.

Thompson:

That's what I'm saying. I don't have a copy of that Order. I mean, I don't have that.

The Court:

Well, then there's going to have to be some presentation to establish that you have been properly served.

Thompson:

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 order.

. . . .

The Court:

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.

Prosecutor Issac:

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 sufficient.

The Court:

So you sent it by first class mail?

Prosecutor Issac:

I did. And it's presumed to be served upon depositing into the mail. So we believe it's seen served.

The Court:

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 --

Thompson:

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 --

The Court:

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?

Prosecutor Issac:

I have my copy of the Certificate of Service.

The Court:

It's not been filed with the Court.

Prosecutor Issac:

It was filed on September 24, 2015.

The Court:

It may show that, but it's not in the Court file. If it is, it's not in the order it should be.

Prosecutor Issac:

If I can approach, you can see my copy.

The Court:

Yes, sir. Well, this is in the court file. . . .

. . . .

The Court:

. . . 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.

         At the 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.

         On 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 ...


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