FIRST DIVISION DOYLE, C. J., ANDREWS, P. J. and PHIPPS, P. J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
October 27, 2016
In the Court of Appeals of Georgia A16A0923. IN RE: CURT THOMPSON.
PHIPPS, Presiding Judge.
Attorney Curt Thompson appeals an order finding him in criminal contempt of
the State Court of Douglas County. He contends that he was denied due process
because he was not given notice that he faced a criminal charge and did not
knowingly waive his right to counsel, that the trial judge should have recused himself
sua sponte, and that the evidence was insufficient. For the following reason, we
reverse.
The record shows that Thompson, a solo practitioner and state senator,
represented a contractor sued for breach of contract in the Magistrate Court of
Douglas County. At the plaintiff’s request, the action was transferred to state court
in December 2014. In early February 2015, pursuant to OCGA § 9-10-150, Thompson filed a motion to stay the case until after the conclusion of the Georgia legislative
session. The trial court granted this motion, and in June 2015, the plaintiff filed a
request to have the case placed on the next available bench trial calendar. Although
the notice of hearing is not part of the record on appeal, Thompson did not dispute
that he received notice of a bench trial date of September 24, 2015.
On October 2, 2015, the trial court signed an “Order on Contempt,” setting a
hearing for November 2, 2015, and ordering Thompson “to show-cause why he
should not be held in contempt” (“the show-cause order”) based on his conduct with
respect to the scheduled bench trial. Specifically, in the three-page order, the trial
court outlined the facts as follows: on September 22, 2015, Thompson emailed the
court that he had found out the day before that he had two criminal cases being called
for trial in the Superior Court of DeKalb County on September 24, 2015, the same
day as the scheduled bench trial. Thompson stated he did not anticipate being finished
with those cases in one day and would be unable to appear for the bench trial.
Thompson sent a conflict letter (attached to the court’s order), which added that the
criminal cases “were being called forward” at 9:00 a.m. on September 24.
According to the show-cause order, however, the court’s (unnamed) law clerk
had contacted the DeKalb County Clerk’s Office and was informed that neither of
2 Thompson’s two cases was on a jury trial calendar for that week but that they were
scheduled for probation revocation hearings on October 1, 2015. The law clerk
telephoned Thompson at about 3:30 p.m. on September 24, and Thompson told her
one of his cases had gone forward, that he had argued a motion before the court in
DeKalb County that day, and that they were getting ready to strike a jury on the
morning of September 25, 2015, for that case. Thompson had been unable to recall
the name of the DeKalb County judge but had promised to provide this information
by the end of the day. The law clerk sent a follow-up email to Thompson asking for
this information on September 25, but as of the date of the show-cause order (October
2), Thompson had not provided the name of the judge.
At the show-cause hearing, the State called Sangeetha Krishnakumar, who
testified that she was the law clerk for the trial judge and another state court judge.
She testified that on September 22, 2015, Thompson had emailed her that he had a
conflict in DeKalb County and would not be able to make it to the hearing on
September 24. A printout of Thompson’s email and her reply were introduced into
evidence. Krishnakumar testified further that she had called the DeKalb County
Clerk’s office to ascertain the name of the judge, using the case numbers from
3 Thompson’s conflict letter, and had spoken with that judge’s judicial assistant, Trudy
Darby.
Darby also testified that only one case was on the calendar the week of
September 21, 2015. Thompson’s two cases involved probation violation charges that
were filed on September 22, 2015, and were set for a hearing on October 1, 2015.
After the prosecution rested, Thompson testified that when he found out about
the October 1 probation revocation hearing, he contacted his client’s probation
officer, the DeKalb Superior Court, and the district attorney’s office because he had
a legislative conflict that required him to be in Washington, D.C. that day. At the
probation officer’s suggestion, he decided to go to court in DeKalb County on
September 24 to see if he could resolve the matter early with a consent order. He
acknowledged that he did not give the Douglas County court the “entire story” but
claimed he had not intended to deceive the court.
When he arrived at the DeKalb courtroom on September 24, a trial was taking
place. After sitting in the courtroom for 30 minutes, Thompson left to “find out what
was going on [and discovered that] the order had not been given apparently to bring
[his client] over.” Thompson did not recall telling the law clerk that the DeKalb case
was going to trial; he instead told her that his client had another charge pending in
4 Clayton County that he believed was going to trial. Thompson added that he had been
having problems with his email account, that his office assistant was in the hospital,
and that he was not working at his best as he relied on his assistant to keep his solo
practice running.
The trial court found Thompson in indirect criminal contempt of court beyond
a reasonable doubt and ordered him to spend ten days in jail. The court found that
Thompson had not complied with the conflict rules because his conflict letter was not
timely, he had not listed the name of the DeKalb County judge or suggested a
possible solution to the conflict, and he did not report back to the court once the
conflict was resolved.
The court found that the “more disturbing issue” was that Thompson “allegedly
[was] being untruthful with the Court, and in particular Ms. Krishnakumar, the law
clerk of the Court, which basically she represents the Court.” Specifically, the court
did not find credible Thompson’s denial of the statements to Krishnakumar, his
testimony that he had a consent worked out in the probation revocations or that he
was even in court in DeKalb County on September 24. The trial court found that
Thompson’s “excuses” were not plausible, and, even if true, they would not justify
his conduct. Further, his failure to give the name of the DeKalb County judge was
5 evidence of dishonesty, and continuing to adhere to his account indicated lack of
remorse. The court found that Thompson had intentionally provided false information
to the court and that his conduct was willful.
1. Thompson argues that he was denied due process because the show-cause
order did not inform him of the possibility of incarceration or a “penal fine.” He
claims that not realizing the potential consequences, he represented himself at the
hearing without making a knowing, intelligent, and voluntary waiver of the benefit
of counsel.
Free access — add to your briefcase to read the full text and ask questions with AI
FIRST DIVISION DOYLE, C. J., ANDREWS, P. J. and PHIPPS, P. J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
October 27, 2016
In the Court of Appeals of Georgia A16A0923. IN RE: CURT THOMPSON.
PHIPPS, Presiding Judge.
Attorney Curt Thompson appeals an order finding him in criminal contempt of
the State Court of Douglas County. He contends that he was denied due process
because he was not given notice that he faced a criminal charge and did not
knowingly waive his right to counsel, that the trial judge should have recused himself
sua sponte, and that the evidence was insufficient. For the following reason, we
reverse.
The record shows that Thompson, a solo practitioner and state senator,
represented a contractor sued for breach of contract in the Magistrate Court of
Douglas County. At the plaintiff’s request, the action was transferred to state court
in December 2014. In early February 2015, pursuant to OCGA § 9-10-150, Thompson filed a motion to stay the case until after the conclusion of the Georgia legislative
session. The trial court granted this motion, and in June 2015, the plaintiff filed a
request to have the case placed on the next available bench trial calendar. Although
the notice of hearing is not part of the record on appeal, Thompson did not dispute
that he received notice of a bench trial date of September 24, 2015.
On October 2, 2015, the trial court signed an “Order on Contempt,” setting a
hearing for November 2, 2015, and ordering Thompson “to show-cause why he
should not be held in contempt” (“the show-cause order”) based on his conduct with
respect to the scheduled bench trial. Specifically, in the three-page order, the trial
court outlined the facts as follows: on September 22, 2015, Thompson emailed the
court that he had found out the day before that he had two criminal cases being called
for trial in the Superior Court of DeKalb County on September 24, 2015, the same
day as the scheduled bench trial. Thompson stated he did not anticipate being finished
with those cases in one day and would be unable to appear for the bench trial.
Thompson sent a conflict letter (attached to the court’s order), which added that the
criminal cases “were being called forward” at 9:00 a.m. on September 24.
According to the show-cause order, however, the court’s (unnamed) law clerk
had contacted the DeKalb County Clerk’s Office and was informed that neither of
2 Thompson’s two cases was on a jury trial calendar for that week but that they were
scheduled for probation revocation hearings on October 1, 2015. The law clerk
telephoned Thompson at about 3:30 p.m. on September 24, and Thompson told her
one of his cases had gone forward, that he had argued a motion before the court in
DeKalb County that day, and that they were getting ready to strike a jury on the
morning of September 25, 2015, for that case. Thompson had been unable to recall
the name of the DeKalb County judge but had promised to provide this information
by the end of the day. The law clerk sent a follow-up email to Thompson asking for
this information on September 25, but as of the date of the show-cause order (October
2), Thompson had not provided the name of the judge.
At the show-cause hearing, the State called Sangeetha Krishnakumar, who
testified that she was the law clerk for the trial judge and another state court judge.
She testified that on September 22, 2015, Thompson had emailed her that he had a
conflict in DeKalb County and would not be able to make it to the hearing on
September 24. A printout of Thompson’s email and her reply were introduced into
evidence. Krishnakumar testified further that she had called the DeKalb County
Clerk’s office to ascertain the name of the judge, using the case numbers from
3 Thompson’s conflict letter, and had spoken with that judge’s judicial assistant, Trudy
Darby.
Darby also testified that only one case was on the calendar the week of
September 21, 2015. Thompson’s two cases involved probation violation charges that
were filed on September 22, 2015, and were set for a hearing on October 1, 2015.
After the prosecution rested, Thompson testified that when he found out about
the October 1 probation revocation hearing, he contacted his client’s probation
officer, the DeKalb Superior Court, and the district attorney’s office because he had
a legislative conflict that required him to be in Washington, D.C. that day. At the
probation officer’s suggestion, he decided to go to court in DeKalb County on
September 24 to see if he could resolve the matter early with a consent order. He
acknowledged that he did not give the Douglas County court the “entire story” but
claimed he had not intended to deceive the court.
When he arrived at the DeKalb courtroom on September 24, a trial was taking
place. After sitting in the courtroom for 30 minutes, Thompson left to “find out what
was going on [and discovered that] the order had not been given apparently to bring
[his client] over.” Thompson did not recall telling the law clerk that the DeKalb case
was going to trial; he instead told her that his client had another charge pending in
4 Clayton County that he believed was going to trial. Thompson added that he had been
having problems with his email account, that his office assistant was in the hospital,
and that he was not working at his best as he relied on his assistant to keep his solo
practice running.
The trial court found Thompson in indirect criminal contempt of court beyond
a reasonable doubt and ordered him to spend ten days in jail. The court found that
Thompson had not complied with the conflict rules because his conflict letter was not
timely, he had not listed the name of the DeKalb County judge or suggested a
possible solution to the conflict, and he did not report back to the court once the
conflict was resolved.
The court found that the “more disturbing issue” was that Thompson “allegedly
[was] being untruthful with the Court, and in particular Ms. Krishnakumar, the law
clerk of the Court, which basically she represents the Court.” Specifically, the court
did not find credible Thompson’s denial of the statements to Krishnakumar, his
testimony that he had a consent worked out in the probation revocations or that he
was even in court in DeKalb County on September 24. The trial court found that
Thompson’s “excuses” were not plausible, and, even if true, they would not justify
his conduct. Further, his failure to give the name of the DeKalb County judge was
5 evidence of dishonesty, and continuing to adhere to his account indicated lack of
remorse. The court found that Thompson had intentionally provided false information
to the court and that his conduct was willful.
1. Thompson argues that he was denied due process because the show-cause
order did not inform him of the possibility of incarceration or a “penal fine.” He
claims that not realizing the potential consequences, he represented himself at the
hearing without making a knowing, intelligent, and voluntary waiver of the benefit
of counsel.
“[C]riminal contempt is a crime in the ordinary sense; it is a violation of the
law, a public wrong which is punishable by fine or imprisonment or both.”1
“[C]riminal contempt imposes unconditional punishment for prior acts of contumacy,
whereas civil contempt imposes conditional punishment as a means of coercing future
compliance with a prior court order.”2
1 Moton v. State, 332 Ga. App. 300 (772 SE2d 393) (2015) (punctuation and footnote omitted). See also In re Hadaway, 290 Ga. App. 453, 457 (659 SE2d 863 (2008). 2 Moton, supra at 301 (punctuation and footnote omitted).
6 Direct acts of contempt, which occur within the sensory perception of the
judge, typically in open court, may be punished summarily to preserve order.3 For
indirect contempt, however, due process requires that the person charged “must, inter
alia, be advised of charges, have a reasonable opportunity to respond to them, and be
permitted the assistance of counsel and the right to call witnesses.”4 For serious
criminal contempt involving imprisonment of more than six months, the alleged
contemnor additionally has the right to a jury trial.5
Although an alleged contemnor facing imprisonment may waive his right to
counsel, such waiver must be made knowingly, intelligently, and voluntarily.6
3 OCGA § 15-1-4 (a) (1); Ramirez v. State, 279 Ga. 13, 14-15 (6) (608 SE2d 645) (2005); In re Otuonye, 279 Ga. App. 468, 469 (1) (631 SE2d 500) (2006). 4 Moton, supra at 302 (punctuation and footnote omitted). See also Cooke v. United States, 267 U. S. 517, 537 (45 SCt 390, 69 LE 767) (1925). 5 United Mine Workers v. Bagwell, 512 U. S. 821, 826-827 (II) (A) (114 SCt 2552, 129 LE2d 642) (1994); Young v. United States, 481 U. S. 787 (107 SCt 2124, 95 LE2d 740) (1987). 6 Merritt v. State, 261 Ga. App. 597, 598 (583 SE2d 283) (2003). See also Argersinger v. Hamlin, 407 U. S. 25, 37 (92 SCt 2006, 32 LE2d 530) (1972) (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”) (footnote omitted).
7 The court need not use any magic words to determine if a valid waiver was made, but the State has the burden of showing from the record that the defendant understood (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver.7
The record does not demonstrate a valid waiver by Thompson of the right to
counsel.8 The hearing began with the following exchange:
THE COURT: This is in case number 14-SV-00563, the hearing on the contempt citation filed by this Court against Mr. Thompson. Mr. Krull, are you ready for the State? MR. KRULL: Yes. THE COURT: Mr. Thompson, are you going to be representing yourself in this matter? MR. THOMPSON: I will. But I was coming down here with – I have in hand, as best I have, the documentation and evidence. THE COURT: Okay. Mr Krull, you may proceed.
7 Merritt, supra (citations omitted; emphasis in original). 8 See Merritt, supra (reversing two-day jail sentence of a grand juror who only appeared for three of eighteen sessions and finding no valid waiver where the trial court told the grand juror that he could have an attorney but that he faced possible incarceration whether or not he had one).
8 Neither the court nor the State inquired into Thompson’s understanding of any of the
factors regarding waiver of counsel. “The fact that [Thompson] is an attorney is . . .
immaterial to a consideration of his right to the protection of the Sixth Amendment.”9
Because there is no evidence that Thompson waived his right to counsel, we reverse
the trial court’s finding of contempt. Given our finding that the record does not
demonstrate a valid waiver of counsel, we do not address whether the show-cause
order was sufficient to put Thompson on notice of the charges against him.
2. Based on our conclusion in Division 1, supra, we also need not address
whether the trial judge should have sua sponte recused himself or Thompson’s
challenge to the sufficiency of the evidence.
Judgment reversed. Doyle, C. J., and Andrews, P. J., concur.
9 Glasser v. United States, 315 U. S. 60, 70 (62 SCt 457, 86 LE 680) (1942) (adding that an attorney’s “professional experience may be a factor in determining whether he actually waived his right to the assistance of counsel. But it is by no means conclusive.”), superseded by statute on other grounds as explained in Bourjaily v. United States, 483 U. S. 171, 181 (107 SCt 2775, 97 LE2d 144) (1987).