Denny Holliday v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 17, 2023
• Docket: 2022 CA 001355
• Status: Unknown

Opinion

RENDERED: AUGUST 18, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1355-MR

DENNY HOLLIDAY APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 21-CR-01270

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.

KAREM, JUDGE: Denny Holliday appeals from the Fayette Circuit Court twice

finding him to be in indirect criminal contempt of court. We affirm as to the first

conviction because Holliday did not timely appeal from that judgment but vacate

and remand the second conviction with instructions to hold an evidentiary hearing.

In December 2021, Holliday was indicted for, among other things,

assault in the fourth degree (third or greater offense within five years) and being a persistent felony offender in the second degree. At all times relevant to this

Opinion, Holliday was in custody pursuant to those charges.

Holliday entered a not guilty plea in early February 2022 but did not

appear at the next proceeding, a status hearing held in early March 2022. The

recording of that hearing before us is incomplete as it does not show the trial court

calling Holliday’s case; instead, the recording begins with the court saying, “you

know.” Video, 3/4/22 at 3:08:55. Holliday’s counsel then apologizes for the

“waste of time” due to Holliday’s nonappearance, to which the court responded,

“Mr. Holliday just didn’t feel like it today.” Id. at 3:09:00 et seq. Without a

complete video record, it is impossible to discern why the court believed

Holliday’s absence was due to a nonchalant attitude rather than some other

unobjectionable explanation.

Holliday appeared at the next status hearing, held two weeks later.

However, his attorney was absent, due to illness. One week later, at another status

hearing, Holliday and his attorney each were present. The court thanked Holliday

for appearing. Video, 3/25/22 at 1:48:48.

The next proceeding was held in late April 2022. Holliday was

present. At the next hearing, held in mid-May 2022, Holliday appeared but his

counsel did not – again due to illness.

-2- One week later, May 20, 2022, Holliday failed to appear at a status

hearing. Again, the video begins after the hearing had already commenced.

Holliday’s counsel is recorded mid-sentence saying, “and that’s the first time that’s

happened.” Video, 5/20/22 at 3:42:35. The judge orally stated that she was going

to give Holliday a “warning” that he “may” be held in contempt if he failed to

appear for the next proceeding, scheduled for June 3, 2022. Id. at 3:42:58 et seq.

The court issued an order which similarly provided that Holliday’s “personal

appearance in Court is mandatory. Failure To Appear could result in Contempt.”

Trial Court Record (“R.”) at 39.

Holliday appeared for the June 3 status hearing. He decried the

supposed dearth of communication with his appointed counsel. The court stated

that it would contact Holliday’s counsel’s supervisor.

On June 10, 2022, Holliday again failed to appear at a status hearing.

Once again, the video record appears to be incomplete as it abruptly begins with

the court questioning whether Holliday’s case had been assigned to the attorney

representing him that day. As it turns out, that attorney was stand-in counsel.

It is difficult to understand every word spoken at this hearing with

reliable precision due to some crosstalk. However, it is clear that the court asked if

it was correct that Holliday had “refused” to attend the hearing. Video, 6/10/22 at

1:29:08 et seq. Some unidentified person responded that Holliday had “refused to

-3- come.” Id. at 1:29:23. The court then immediately stated that it had warned

Holliday about not appearing (technically, of course, the oral warning was only

that Holliday would be held in contempt if he did not appear at the next hearing –

which he did) and thus was holding him in contempt and sentencing him to ninety

days. No sworn testimony was taken. Holliday’s stand-in counsel did not object,

nor ask for a hearing.

The court issued a brief order memorializing the oral contempt

finding, stating that Holliday “intentionally failed to attend Court” and thus was

found to be in contempt and sentenced to 90 days in jail. R. at 44. That order does

not contain finality language. The court also issued a commitment order, which

contains a handwritten notation at the bottom stating “Held in contempt[.] 90 days

to serve[.]” R. at 43. Holliday did not file a motion to alter, amend, or vacate that

judgment, nor did he file an appeal.

The next proceeding was a status hearing held in late August 2022.

Holliday did not appear. His counsel asked the court for mercy to avoid another

contempt charge and said Holliday had significant mental health concerns. The

court merely responded that the next hearing would be held on October 7, 2022.

Holliday was not present for that October 7 status conference. The

video record again appears incomplete as it begins with the court saying it would

“note that he [presumably Holliday] originally had asked for a speedy trial.”

-4- Video, 10/7/22 at 2:47:57. Someone off camera, perhaps the Commonwealth

attorney, soon thereafter states that Holliday had “refused to come [to] the last two

court appearances[,]” to which the trial court responded “correct.” The court then

said “alright, I’ll hold him in contempt.”

Holliday’s counsel responded by asking for a “formal contempt

hearing,” asserting “with the way the staffing is at the jail I think sometimes when

it says refused it doesn’t really mean they refused.” Although counsel’s language

was imprecise, the gist is clear: Holliday’s failure to appear could have been

attributable to a mix-up or omission by jail personnel. The trial court immediately

responded “denied.”

Holliday’s counsel then reminded the court that Holliday had a due

process right to a formal contempt hearing, to which the court responded “Ok. If

you tell me that he’s going to come, and you want to schedule a hearing, I’d be

glad to.” Holliday’s counsel replied, “I obviously can’t guarantee that, your honor,

but he does have rights.” The court said it would “be glad as soon as he comes and

tells me he wants to exercise them.” The court set a January 2023 status hearing

and, despite having just denied the request for a contempt hearing, incongruously

said counsel could “just let me know” if Holliday wanted a contempt hearing.

Video, 10/7/22 between about 2:48:20 and 2:49:19.

-5- The court issued two orders memorializing the October 7 hearing.

First, it issued a commitment order which, like its June 2022 predecessor, contains

this handwritten notation at the bottom: “Held in contempt[.] Serve 90 days[.]”

R. at 48. Next, the court issued an order which provides in its entirety:

The Court previously advised the Defendant that he could be held in contempt for failing to attend Court. The Court finds that the Defendant intentionally failed to attend Court on June 10, 2022. Therefore, the Court finds the Defendant in contempt and orders that he serve 90 days.

This matter shall be set for a Status Hearing on January 13, 2023 at 1:00 p.m.

IT IS FURTHER ORDERED that the Defendant’s Motion through Counsel for a Hearing for Contempt charge is DENIED.

R. at 49. Holliday did not again request a hearing. Instead, he filed this appeal.

Before we begin our merits analysis, we note that this appeal is not

moot, even though Holliday has completed serving both ninety-day contempt

sentences. “The general rule is, and has long been, that where, pending an appeal,

an event occurs which makes a determination of the question unnecessary or which

would render the judgment that might be pronounced ineffectual, the appeal should

be dismissed.” Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (internal

quotation marks and citations omitted). However, “the expiration of a criminal

sentence has been held not to moot an appeal from the judgment of conviction,

-6- because there remain consequences of the conviction (such as the loss of various

civil rights) deemed sufficient to keep alive the appellant’s personal stake in the

outcome of the appeal.” Id. That collateral consequences exception means this

appeal is not moot even though Holliday has served his contempt sentences.

The Commonwealth asserts that Holliday waited too long to appeal

from the June contempt conviction. We agree. However, we also agree with

Holliday that he has timely appealed the October contempt conviction. In other

words, though not expressly framed as such by the parties, our review of the record

plainly shows that the trial court held Holliday in contempt twice, once in June and

a second time in October. That conclusion is based on two main factors.

First, the trial court used present tense language both times.

Specifically, the court in October did not say that it “had” found Holliday in

contempt in June; instead, after someone noted that Holliday had refused to appear

the court said, “alright, I’ll hold him in contempt.” Video, 10/7/22 at 2:48:27.

Because the record does not show that Holliday had sought any relief from the

June contempt conviction, there was no logical reason for the trial court to have

revisited its having held Holliday in contempt in June. Instead, the logical reason

for the court to have been discussing contempt was because it again found

Holliday’s absence to be contumacious.

-7- Second, the court issued an accompanying commitment order in both

June and October. There was no point in issuing a redundant, second commitment

order in October if the court intended only to reaffirm that it had found Holliday in

contempt in June, especially since by that point Holliday had already served the

ninety-day sentence imposed in June.

We are aware that the court’s October contempt order curiously

references Holliday refusing to appear in June. However, the reference to Holliday

having failed to appear in June cannot be reconciled with the otherwise

overwhelming circumstantial evidence indicating that the court had convicted

Holliday of contempt afresh in October. In fact, the order uses present tense

language (“the Court finds the Defendant in contempt”), instead of the past-tense

language which would be expected if the court had been referring to it already

having found Holliday in contempt in June. Thus, we regard the reference to

Holliday’s nonappearance in June in the October order as a mere “cut and paste”

type of scrivener’s error.

As to the June conviction, an appeal from a final judgment must be

filed within thirty days after the entry of a final judgment. Kentucky Rule of

Criminal Procedure (RCr) 12.04(3). See also Kentucky Rule of Appellate

Procedure (RAP) 3(A)(1) (effective Jan. 1, 2023). Holliday did not appeal the

June contempt finding within the allotted thirty days. Of course, the thirty-day

-8- appellate clock may be paused by the timely filing of a motion for a new trial or a

motion to alter, amend, or vacate. See, e.g., RAP 3(E). But Holliday did not file

any such clock-stopping motion. In fact, Holliday did nothing to timely contest the

June contempt finding.

Moreover, the June contempt order was inherently final and

appealable, even though it did not contain finality language, because it wholly

resolved that contempt episode. The June order, along with the court’s oral

pronouncements, found Holliday guilty of contempt and imposed sanctions for that

misconduct. Nothing further was required for that conviction to be final and

appealable, Holliday’s arguments to the contrary notwithstanding.

We dismiss appeals which were not timely filed. See, e.g., Anglin v.

Justice & Public Safety Cabinet, 480 S.W.3d 291 (Ky. App. 2015); RAP 2(A)(3).

This appeal was timely filed as to the October contempt conviction but untimely as

to the June contempt conviction. Thus, even though the court erred by not holding

an evidentiary hearing in June, we reluctantly agree with the Commonwealth that

we may not disturb the June conviction because Holliday did not timely appeal

from it.

The October contempt finding is a different matter. Holliday timely

asked for a contempt hearing. Unfortunately, the court immediately denied that

request. The issue was thus preserved, even though the court oddly later invited

-9- counsel to again request the very hearing which the court had already emphatically

declined to hold. Our focus, therefore, for the remainder of this Opinion will be on

the October contempt conviction.

We must now ascertain whether Holliday was held in civil or criminal

contempt. “Generally, sanctions imposed to benefit an adverse party . . . are

deemed civil . . . . Punitive sanctions, however – unconditional sanctions not

subject to purgation through compliance with an order and imposed principally if

not purely to vindicate the authority of the court – are deemed criminal.” Cabinet

for Health and Family Services v. J.M.G., 475 S.W.3d 600, 611 (Ky. 2015)

(paragraph break omitted). Here, it is plain that the sanctions were entirely

punitive, so the court held Holliday in criminal contempt.

Having determined the contempt was criminal, we now must

determine whether it was direct or indirect. “A contempt occurring in the presence

of the court is direct contempt, while a contempt committed outside the presence of

the court is indirect contempt.” Riley v. Gibson, 338 S.W.3d 230, 237 (Ky. 2011)

(citation omitted). That distinction is important for two reasons. First, the trial

court may summarily adjudge direct, petty contempts but “as the alleged contempt

becomes more serious or less direct, the United States Constitution’s Due Process

Clauses require criminal contempt procedures . . . more in accord with the

procedural safeguards constitutionally guaranteed for ordinary criminal trials.”

-10- J.M.G., 475 S.W.3d at 615. In other words, direct criminal contempt occurring in

the presence of the court “may be punished summarily by the court.” C.S. v.

Commonwealth, 559 S.W.3d 857, 865 (Ky. App. 2018). However, indirect

criminal contempt “may be imposed only after proceedings that comport with due

process.” Id. (internal quotation marks and citations omitted).

In short, “indirect contempt – that is, contempt occurring out of Court

or not immediately apparent to the Court – requires an evidentiary hearing.

Summary adjudication of indirect contempt is prohibited.” Cabinet for Health and

Family Services v. R.C., 661 S.W.3d 305, 315 (Ky. App. 2023) (citations omitted).

Second, the nature of our review depends on whether the contempt is

direct or indirect. Specifically, our Supreme Court has held that a trial court has

“very broad discretion to respond as needed to . . . direct contempts” but appellate

review of indirect criminal contempt sanctions must be “searching” and

“commensurate with the review provided in regular criminal cases of a comparable

seriousness . . . .” J.M.G., 475 S.W.3d at 624.

It was obviously immediately apparent to the trial court that Holliday

was not present. Nonetheless, the contempt here is indirect because Holliday’s

failure to appear, by itself, was insufficient to constitute contempt.

Our Supreme Court has defined contempt as “the willful disobedience

toward, or open disrespect for, the rules or orders of a court” and willfulness

-11- “means with intent or intention.” Poindexter v. Commonwealth, 389 S.W.3d 112,

117 (Ky. 2012) (internal quotation marks and citations omitted). In other words,

criminal contempt must be based on willful disobedience, and so it was incumbent

upon the court to ensure that Holliday intentionally failed to appear. Of course,

there are possible benign, non-contumacious reasons for Holliday’s failure to

appear. For example, he could have been ill or, as his counsel posited, jail

personnel could have simply failed to bring him to the courthouse.

The possibility that Holliday did not intentionally fail to appear,

although perhaps not the most likely explanation since he failed to appear multiple

times prior, is why these contempt findings must be classified as indirect.

Holliday’s absences were wholly within the court’s sensory perception, but the

underlying reasons for them were not. In other words, the court held that

Holliday’s absences were intentional, but there is absolutely no sworn testimony to

support that conclusion.

We have held in analogous circumstances that contempt stemming

from an attorney’s failure to appear in court would be indirect because the court

“could not arbitrarily assume the existence of the culpable mens rea necessary to

constitute contempt. The court could not have known why the attorney was absent

from the proceedings until after he had had an opportunity to explain his conduct.”

-12- Commonwealth v. Pace, 15 S.W.3d 393, 396 (Ky. App. 2000). The same logic and

rationale apply here.

We have forcefully held that indirect criminal contempt must be

resolved by “an evidentiary hearing[,]” not a “[s]ummary adjudication . . . .” R.C.,

661 S.W.3d at 315. Of course, there was courtroom chatter to the general effect

that Holliday had simply refused to appear. But that chatter was unsworn, and

Holliday was offered no opportunity to present, or cross-examine, witnesses.

Stray, unsworn comments such as those apparently relied upon by the trial court

here, are not an acceptable substitute for a constitutionally mandated evidentiary

hearing. Moreover, we utterly reject the Commonwealth’s unsound argument that

the trial court somehow satisfied the evidentiary hearing requirement by setting a

status hearing to be held in January 2023.

In sum, the trial court erred by adjudging Holliday to be in indirect

criminal contempt without first holding an evidentiary hearing.1 Therefore, we

1 The trial court’s statement that it would hold a hearing only if Holliday’s counsel guaranteed Holliday’s appearance was improper. First, Holliday had a constitutional right to an evidentiary hearing before being convicted of indirect criminal contempt. Second, Holliday’s counsel responded appropriately when she said that she could not personally guarantee Holliday’s attendance. As an officer of the court, counsel could not make such a guarantee. As Holliday notes in his brief, the proper procedure was for the court to schedule a hearing and, if Holliday intentionally failed to appear, the court could then have concluded he had waived his right to a hearing. Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001) (noting that criminal defendants may generally waive even basic rights).

-13- vacate the October contempt conviction and remand for an evidentiary hearing

focused on whether Holliday’s failure to appear was willful.

For the foregoing reasons, the Fayette Circuit Court is affirmed as to

the June contempt finding but the October contempt finding is vacated and

remanded with instructions to conduct an evidentiary hearing.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Erin Hoffman Yang Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-14-