RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0168-MR
HAROLD MICHAEL MILAM APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 21-CR-00143
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: The Appellant (“Milam”) seeks review of a finding of direct
contempt and the sentence imposed upon him for that contempt. Milam contends
the circuit court abused its discretion in finding him in contempt and erred in
delaying the service of the contempt sentence. We affirm.
On January 25, 2022, Milam appeared for a pretrial conference. The
video record accurately reflects Milam’s conduct and his interaction with the presiding judge. As the attorneys first tried to discuss setting a trial date, Milam
interrupted, asking the judge about getting a bond he could post. The prosecutor
offered information about bond factors, including prior criminal history. When the
prosecutor stated Milam faces charges of violent offenses and has a history of a
prior violent offense, Milam called the prosecutor a liar.
The charges against Milam in this case are first-degree sexual abuse1
and first-degree criminal abuse.2 By statutory definition, such charges may be
referred to as violent offenses.3 Even if charges do not meet a specific statutory
designation, reasonable people may disagree about how “violent” prior crimes
were.
Milam’s record includes reference to a prior conviction for fourth-
degree assault, as well as a second-degree assault charge which was amended to
first-degree wanton endangerment. As to the latter amended charge, Milam was
granted a pretrial diversion. Despite documented violations of that diversion, that
prior case was dismissed, because no action had been taken to void the diversion
within the allotted time. Milam v. Commonwealth, 593 S.W.3d 68, 70 (Ky. App.
2020).
1 Kentucky Revised Statute (“KRS”) 510.110. 2 KRS 508.100. 3 KRS 439.3401(1)(f), (k).
-2- The circuit court did not refer to the discussion about pending violent
charges and history in making its bond decision, which is not the subject of this
appeal. We mention it only for context of the interaction between Milam and the
judge. After Milam called the prosecutor a liar, Milam continued to question his
attorney about the filing of a bond motion. The judge first tried to get Milam’s
attention by saying “Hey.” The judge then banged his gavel as he rose from a
seated position to tell Milam: “You shut your mouth until you’re asked to talk.”
The judge directed Milam not to speak about court personnel as
Milam had done (calling the prosecutor a liar). Milam apologized. The judge then
calmly explained the court’s bond decision was based on a “high” risk assessment,
which the judge further explained “that means you don’t appear.” There was no
mention of the violent charge history as a factor in the judge’s bond decision.
Milam then continued to question his attorney before again making a
direct and unsolicited statement to the judge. Referring first to his attorney, Milam
said, “He’s fired” and then referring to both his attorney and the female prosecutor
by exclaiming, “He’s having sexual relations with the prosecutor.” At this point,
the judge imposed a six-month sentence for contempt of court for “making
allegations like that in here.” The judge then made it clear the six-month sentence
would be consecutive to any sentence Milam may receive for his charges.
-3- STANDARD OF REVIEW
This case involves direct criminal contempt for conduct occurring
within the sight or hearing of the court. Commonwealth v. Burge, 947 S.W.2d 805,
808 (Ky. 1996). The trial court’s findings of fact of what occurred must be
accepted by this Court if supported by substantial evidence. Payton v.
Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010). No one disputes the actual
conduct which is clearly recorded. The comments on the oral record support the
circuit court’s written statement the contempt was for an “outburst in court.”
Whether certain conduct constitutes contempt is a question of law
which we review de novo. See Burge, supra (explanation of conduct which may
constitute direct contempt). The decision to find contempt, the nature of the
sentence, and how it is imposed (consecutively, for example) by the trial court is
within its discretion. Howard v. Commonwealth, 496 S.W.3d 471, 475 (Ky. 2016).
We may only reverse the exercise of that discretion if it is abused. Id.
ANALYSIS
Regardless of comments about how many jails Milam had been in and
why (comments not made when Milam was interacting with the judge), the
question here is what Milam did in the courtroom and how the judge responded.
The finding of contempt occurred only after Milam had been warned not to make
statements about court personnel after he called the prosecutor a liar. Milam was
-4- ordered not to speak until asked to do so. Milam immediately disobeyed the
court’s direct order. Milam spoke up again alleging a sexual relationship between
the prosecutor and his own attorney to support Milam’s firing of the attorney.
Milam’s appellate counsel concedes the comments Milam made were “ugly and
inflammatory.” Appellant’s Brief at page 9.
The obligation of the court to maintain order and decorum in its
proceedings authorized the judge in these circumstances to get Milam’s attention
with the stern direction to be quiet. While Milam’s present counsel may have
preferred to hear gentler language and see a calmer demeanor, the judge here was
shown to be acting within his discretion. When Milam spoke again without
permission and made another outrageous allegation in direct defiance of the earlier
order of the court to remain silent and not make such allegations, the finding of
contemptuous conduct by Milam was justified.
A court must maintain proper decorum which includes maintaining
respectful interaction among the participants in a hearing. See Preston v.
Commonwealth, 406 S.W.2d 398, 404 (Ky. 1966) (litigant interrupting a witness to
suggest the witness was being paid for false testimony).4 The maximum of six
months is within the judge’s sentencing authority for a sentence in a summary
4 “Disorderly conduct in the court room, or the use of violence, or threatening, or insulting language to the court, witnesses, or counsel is contempt.” In Re Smith, 926 So.2d 878, 888 (Miss. 2006) (citations omitted).
-5- proceeding when direct contempt occurs. Newsome v. Commonwealth, 35 S.W.3d
836, 840 (Ky. App. 2001).
Milam concedes he did not preserve any error in the imposition of the
consecutive sentence. He requests palpable error review. RCr5 10.26. This Court
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0168-MR
HAROLD MICHAEL MILAM APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 21-CR-00143
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: The Appellant (“Milam”) seeks review of a finding of direct
contempt and the sentence imposed upon him for that contempt. Milam contends
the circuit court abused its discretion in finding him in contempt and erred in
delaying the service of the contempt sentence. We affirm.
On January 25, 2022, Milam appeared for a pretrial conference. The
video record accurately reflects Milam’s conduct and his interaction with the presiding judge. As the attorneys first tried to discuss setting a trial date, Milam
interrupted, asking the judge about getting a bond he could post. The prosecutor
offered information about bond factors, including prior criminal history. When the
prosecutor stated Milam faces charges of violent offenses and has a history of a
prior violent offense, Milam called the prosecutor a liar.
The charges against Milam in this case are first-degree sexual abuse1
and first-degree criminal abuse.2 By statutory definition, such charges may be
referred to as violent offenses.3 Even if charges do not meet a specific statutory
designation, reasonable people may disagree about how “violent” prior crimes
were.
Milam’s record includes reference to a prior conviction for fourth-
degree assault, as well as a second-degree assault charge which was amended to
first-degree wanton endangerment. As to the latter amended charge, Milam was
granted a pretrial diversion. Despite documented violations of that diversion, that
prior case was dismissed, because no action had been taken to void the diversion
within the allotted time. Milam v. Commonwealth, 593 S.W.3d 68, 70 (Ky. App.
2020).
1 Kentucky Revised Statute (“KRS”) 510.110. 2 KRS 508.100. 3 KRS 439.3401(1)(f), (k).
-2- The circuit court did not refer to the discussion about pending violent
charges and history in making its bond decision, which is not the subject of this
appeal. We mention it only for context of the interaction between Milam and the
judge. After Milam called the prosecutor a liar, Milam continued to question his
attorney about the filing of a bond motion. The judge first tried to get Milam’s
attention by saying “Hey.” The judge then banged his gavel as he rose from a
seated position to tell Milam: “You shut your mouth until you’re asked to talk.”
The judge directed Milam not to speak about court personnel as
Milam had done (calling the prosecutor a liar). Milam apologized. The judge then
calmly explained the court’s bond decision was based on a “high” risk assessment,
which the judge further explained “that means you don’t appear.” There was no
mention of the violent charge history as a factor in the judge’s bond decision.
Milam then continued to question his attorney before again making a
direct and unsolicited statement to the judge. Referring first to his attorney, Milam
said, “He’s fired” and then referring to both his attorney and the female prosecutor
by exclaiming, “He’s having sexual relations with the prosecutor.” At this point,
the judge imposed a six-month sentence for contempt of court for “making
allegations like that in here.” The judge then made it clear the six-month sentence
would be consecutive to any sentence Milam may receive for his charges.
-3- STANDARD OF REVIEW
This case involves direct criminal contempt for conduct occurring
within the sight or hearing of the court. Commonwealth v. Burge, 947 S.W.2d 805,
808 (Ky. 1996). The trial court’s findings of fact of what occurred must be
accepted by this Court if supported by substantial evidence. Payton v.
Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010). No one disputes the actual
conduct which is clearly recorded. The comments on the oral record support the
circuit court’s written statement the contempt was for an “outburst in court.”
Whether certain conduct constitutes contempt is a question of law
which we review de novo. See Burge, supra (explanation of conduct which may
constitute direct contempt). The decision to find contempt, the nature of the
sentence, and how it is imposed (consecutively, for example) by the trial court is
within its discretion. Howard v. Commonwealth, 496 S.W.3d 471, 475 (Ky. 2016).
We may only reverse the exercise of that discretion if it is abused. Id.
ANALYSIS
Regardless of comments about how many jails Milam had been in and
why (comments not made when Milam was interacting with the judge), the
question here is what Milam did in the courtroom and how the judge responded.
The finding of contempt occurred only after Milam had been warned not to make
statements about court personnel after he called the prosecutor a liar. Milam was
-4- ordered not to speak until asked to do so. Milam immediately disobeyed the
court’s direct order. Milam spoke up again alleging a sexual relationship between
the prosecutor and his own attorney to support Milam’s firing of the attorney.
Milam’s appellate counsel concedes the comments Milam made were “ugly and
inflammatory.” Appellant’s Brief at page 9.
The obligation of the court to maintain order and decorum in its
proceedings authorized the judge in these circumstances to get Milam’s attention
with the stern direction to be quiet. While Milam’s present counsel may have
preferred to hear gentler language and see a calmer demeanor, the judge here was
shown to be acting within his discretion. When Milam spoke again without
permission and made another outrageous allegation in direct defiance of the earlier
order of the court to remain silent and not make such allegations, the finding of
contemptuous conduct by Milam was justified.
A court must maintain proper decorum which includes maintaining
respectful interaction among the participants in a hearing. See Preston v.
Commonwealth, 406 S.W.2d 398, 404 (Ky. 1966) (litigant interrupting a witness to
suggest the witness was being paid for false testimony).4 The maximum of six
months is within the judge’s sentencing authority for a sentence in a summary
4 “Disorderly conduct in the court room, or the use of violence, or threatening, or insulting language to the court, witnesses, or counsel is contempt.” In Re Smith, 926 So.2d 878, 888 (Miss. 2006) (citations omitted).
-5- proceeding when direct contempt occurs. Newsome v. Commonwealth, 35 S.W.3d
836, 840 (Ky. App. 2001).
Milam concedes he did not preserve any error in the imposition of the
consecutive sentence. He requests palpable error review. RCr5 10.26. This Court
will review alleged errors in sentencing, even if not preserved. Jones v.
Commonwealth, 382 S.W.3d 22, 27-28 (Ky. 2011). As we will explain, the trial
court committed no error in the sentencing, much less an unpreserved error which
resulted in any manifest injustice.
Having reviewed all the judge’s statements on the record, it is clear
the judge imposed a six-month sentence (“you’ve got six months”). The further
comments make clear the sentence was to be consecutive. The law does not
prohibit the consecutive misdemeanor sentence in these circumstances. See
Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983). The
superfluous comments about parole eligibility do not change the actual nature of
the sentence. The circuit court did not err in making the sentence consecutive.
The application of jail credit for the pending case, if a conviction occurs later,
would not change Milam’s right to apply every day he serves to one sentence or
another. The six-month contempt sentence is still consecutive, which the circuit
court had the legal authority to impose.
5 Kentucky Rules of Criminal Procedure.
-6- Within ten days of the imposition of the contempt sentence, the circuit
court ordered an evaluation of Milam for competency and criminal responsibility
based on a motion by Milam’s counsel. Milam filed no motion to alter or amend
or vacate the circuit court’s previous finding of contempt or the sentence imposed
claiming any lack of criminal responsibility. Because the contempt decision was
subject to immediate appeal, this Court does not have the record of the later
proceedings which would reveal any competency or criminal responsibility
determinations.
While the parties commented on the evaluation in their briefs, the
issue of how this might impact the contempt finding was not fully addressed or for
that matter preserved for our review. Our research reveals responsibility for
contempt may be determined by the circumstances of the conduct at the time it
occurs. United States v. Flynt, 756 F.2d 1352, 1365 (9th Cir. 1985). Milam
illustrated his ability to comply with the rules of the court when he acknowledged
the judge’s first warning and apologized for his conduct. Milam was not shown to
be so delusional or otherwise mentally ill as to be unable to conform to acceptable
court behavior. The circuit court did not err in finding contempt and sentencing
Milam for that contempt based upon any later claim Milam was not responsible for
his behavior.
-7- CONCLUSION
The order of the Russell Circuit Court finding the Appellant in
contempt and sentencing him to serve six months consecutive to another sentence
is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-8-