Perroni v. State

186 S.W.3d 206, 358 Ark. 17

• Court: Supreme Court of Arkansas
• Decided: June 17, 2004
• Docket: 03-878
• Status: Published

Opinions

Tom Glaze, Justice.

Attorney Samuel A. Perroni appeals tice. Timothy D. Fox’s order finding Perroni in criminal contempt. This matter arises out of a felony tax fraud case that the State filed on July 1, 2000, in the Pulaski County Circuit Court, Sixth Division, against Richard Ross and two other defendants. Perroni represented Ross. Initially, Judge David Bogard was presiding judge, and there were five continuances granted, two of which were because of scheduling conflicts with cases Perroni had pending in different federal district courts.¹ Finally, the Ross matter was set first out for a four-day jury trial to begin on February 11,2003. On August 5,2002, both Perroni and Ross executed a notice order of the February 11 trial setting.

Meanwhile, Perroni undertook the representation of another defendant, Steve Pirani, who, along with two co-defendants, was charged in federal court with numerous felony offenses. Pirani was indicted on July 25, 2002, arraigned on August 7, 2002, and Federal District Judge Susan Webber Wright initially set the Pirani trial to begin on September 4, 2002. However, Perroni promptly asked Judge Wright for a continuance, asserting that he had another federal court case scheduled to commence on September 16, 2002, in Federal District Judge Bill Wilson’s court. Judge Wright accommodated Perroni by rescheduling the Pirani case to begin on February 10, 2003. For unknown reasons, Perroni did not advise Judge Wright that the February 10 date would conflict with the earlier setting of February 11, 2003, in the state court’s Ross case.

The next relevant date and event occurred when, on January 6, 2003, Judge Wright entered an order noting that she had previously denied Steve Pirani’s motion to sever, but asked the Government to explain its objection to severance. In her order, Judge Wright reconfirmed the February 10, 2003, trial setting. Again, Perroni never mentioned this conflict with the state court’s February 11, 2003, trial setting. By way of a telephone conference with all counsel for the Government and defendants, on January 31, 2003, Judge Wright noted in her order of the same date that she was advised that the defendants could be tried separately, and she directed that Steve Pirani’s trial would commence with jury selection to begin on February 10, 2003, and Pirani’s co-defendants would be tried afterwards. Again, the record reflects that Perroni failed to mention to Judge Wright the scheduling conflict he had regarding the Ross case in state court. Instead, Perroni waited until January 31, 2003, to ask the state circuit court judge for another continuance of the Ross case. At this stage of the proceedings in the Ross and Pirani cases, Circuit Judge Fox had been elected and replaced Judge Bogard, who had retired.

Judge Fox promptly set a hearing for February 4, 2003, to consider Perroni’s motion for continuance, but, instead of appearing at the February 4 hearing, Perroni sent an associate. After Judge Fox denied the continuance Perroni’s associate had requested, Perroni quickly moved for Judge Fox to reconsider his ruling; however, at another hearing set on February 5, 2003, Judge Fox refused to set aside his order denying a continuance. Perroni then moved to withdraw as Ross’s counsel, and that request, too, was denied.

On February 10, 2003, Perroni had a letter delivered to Judge Fox, renewing his motions for continuance and to withdraw as counsel. He enclosed a copy ofjudge Wright’s scheduling order which reflected that Steve Pirani’s trial was to begin February 10, 2003. On the day of trial, February 11, 2003, Ross appeared in court without counsel, although Perroni’s law partner, Patrick James, appeared and advised that he was making a special appearance on Ross’s behalf. The state prosecutor announced ready for trial, but the trial court continued the case and released the jury and the State’s witnesses because Ross said that he had been unable to obtain substitute counsel. Citing Ark. Code Ann. § 16-84-111(b) (Supp. 2003),² Fox ordered Ross to be held in custody pending further orders of the court. Judge Fox stated the case was in recess, and Ross could again be released upon an appearance bond, if the surety agreed to remain as the surety until final judgment was rendered.

On February 12, 2003, Judge Fox issued an order to show cause why Perroni should not be held in contempt for failing to appear in court to represent Ross on February 11, 2003. Perroni responded by filing a motion suggesting Judge Fox’s disqualification, alleging Judge Fox’s impartiality might be questioned. Perroni alleged that Fox improperly did the following:

(1) Illegally and unconstitutionally incarcerated Ross in what appears to be retaliation against his counsel, Perroni.

(2) Inappropriately, adversarially, and aggressively took action against Perroni via the court’s correspondence, treatment of counsel, and the issuance of an order to show cause.

(3) Independently investigated facts in this case as opposed to considering only the evidence presented. This included an investigation of Ross’s appearance bond and the pleadings filed in the Pirani case.

Perroni concluded by stating that Judge Fox and his staff were in an adversarial relationship which suggested Fox’s impartiality might reasonably be questioned. Perroni requested an evidentiary hearing regarding his allegations, and Judge Fox set a hearing on March 14, 2003.

On March 14, 2003, a hearing was held, and Perroni’s attorney renewed his earlier motions which Judge Fox again denied. Fox then recited the facts of the case, and Perroni called Federal Judge Bill Wilson to testify as a character witness. After Judge Wilson’s testimony, Judge Fox and Perroni’s attorney, Tim Dudley, turned their attention to the fact that Perroni had filed a removal motion in federal district court, and no further action could be conducted until the federal court decided to take the case or remand it back to the state circuit court. The federal court returned this case to Judge Fox’s court, whereupon Fox found that Perroni had wilfully disobeyed Fox’s scheduling order by not appearing with Ross at the February 11, 2003, trial. Judge Fox imposed the following sanctions:

(1) payment of $780.00 for reimbursement of the juror members who were called, had appeared, and were discharged in Ross’s case;

(2) payment of the State’s witness fees in the amount of $443.72;

(3) reimbursement of the costs of copying pleadings filed in the Pirani federal court case in the amount of $55.20; and

(4) payment of a fine of $1,000.00.

Perroni (brings this appeal contending that (1) Judge Fox committed reversible error by failing to recuse; (2) as a matter of law, there is a failure of evidence with regard to the charge of willful conduct; and (3) Judge Fox erred by failing to accord him his constitutional protections. In arguing his first point, Perroni offers six reasons that he believes merit reversal. He claims Judge Fox erred (1) by serving as a prosecutor; (2) by serving as a witness; (3) in prejudging Perroni’s case; (4) by incarcerating Ross, which demonstrated animus and retaliation against Perroni; (5) by conducting an ex parte investigation of the facts; and (6) by demonstrating an appearance of impropriety. We first address Perroni’s two general contentions involving recusal and contempt because the conclusions we reach on these two matters render it unnecessary to reach some of the subpoints Perroni raises.

Our law regarding recusal and contempt is well settled. When recusal is in issue, this court has held that a judge has a duty to sit on a case unless there is a valid reason to disqualify, and, on appeal, we presume impartiality on the trial judge’s part. See Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) (judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise). This court has also held the standard of review on appeal is whether the trial judge abused his or her discretion in the matter. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994).

Upon our review of the record, we hold that Perroni has failed to demonstrate the required bias on Judge Fox’s part. While Perroni alleges Fox erred by serving as prosecutor and as a witness, in prejudging Perroni’s case, in incarcerating Ross, and in conducting an ex parte investigation when preparing for a show-cause hearing, the primary issue is whether he disobeyed Judge Fox’s scheduling order.

Arkansas law is settled that an act is contemptuous if it interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity. Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000). This court has also held that the disobedience of any judgment, order, or decree of a court having jurisdiction to enter it is such an interference with the administration ofjustice as to constitute contempt. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). For example, in Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000), two prosecutors were in direct criminal contempt when they did not comply with a scheduling order and proceed to trial on the trial date. By adopting a rule of criminal procedure, this court has emphasized that control of the trial calendar is a matter that rests solely with the trial judge who shall provide for the scheduling of cases upon the calendar. See Ark. R. Crim. P. 27.2. Accordingly, this court has held that the scheduling of cases is tantamount to a direct order of the court, id., see also Rischar v. State, 307 Ark. 429, 821 S.W.2d25 (1991), and we have stated that the trial judges of this state have an obligation to assure that their courts are conducted in an orderly and correct manner. See Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996). Our court has also held that an attorney’s failure to appear pursuant to a supreme court show-cause order was direct contempt. Street v. State, 331 Ark. 443, 959 S.W.2d 747 (1998).

The standard of review in a case of criminal contempt, as we have here, requires this court to view the record in the light most favorable to the trial judge’s decision and to sustain that decision if it is supported by substantial evidence and reasonable inferences. Etoch v. Simes, 340 Ark. 449, 10 S.W.3d 866 (2000).

From a careful review of the record before us, one thing is quite clear and entirely undisputed: that Sam Perroni disobeyed Judge Fox’s scheduling order. On August 5, 2002, both Perroni and his client, Ross, signed a notice order which set Ross’s state criminal trial for four days beginning on February 11, 2003. Only two days after Perroni and Ross executed the state court’s scheduling order, Perroni was apprised on August 7, 2002, by Federal District Court Judge Susan Webber Wright, that another of Perroni’s defendants, Steve Pirani, was scheduled for a federal trial on September 4, 2002. However, Perroni immediately notified Judge Wright that he had another federal trial in a different federal district court that would conflict with the Pirani September 4 trial setting. Judge Wright then rescheduled the Pirani case to begin on February 10, 2003 — a date that conflicted with the February 11 setting in the Ross state case. In fact, the record fails to reflect that Perroni ever notified Judge Wright that the Pirani trial date conflicted with Perroni’s Ross case in state court.

As pointed out earlier in this opinion, Perroni had numerous opportunities to bring the state trial conflict in Ross to Judge Wright’s attention, but Perroni simply chose not do so. To make matters worse, Perroni waited until January 31, 2003, to ask Judge Fox for a new setting in the Ross case. Judge Fox held a hearing on Perroni’s continuance motion on February 5, 2003, at which time the judge denied Perroni’s motion. Perroni then moved to withdraw as Ross’s counsel. Judge Fox denied that motion when Perroni explained that it would be impossible for new counsel to be prepared to defend Ross by the February 11, 2003, trial date. The record reveals that, as early as August 7, 2002, and for approximately five months, Perroni knew that he had a scheduling conflict in the state Ross case and federal Pirani case, but Perroni never told Judge Wright, and waited to inform Judge Fox until only days before the respective cases were to be tried. At the February 5, 2003, hearing on Perroni’s motion for continuance, Judge Fox informed Perroni that the Ross case was the oldest one on his docket, and needed to be tried. Perroni advised Judge Fox that he did not have an actual conflict with the Pirani case until January 31, 2003, when Federal Judge Wright advised counsel that jury selection in the Pirani case would begin on February 10, 2003. When it became apparent that Fox was not going to grant a continuance, Perroni told Judge Fox that, “If you want, I’ll file a motion for continuance with Judge Wright.” Fox answered, “No, it’s been the practice of this court, under the previous judge, that [attorneys] had to manage their own dockets.”³

As already discussed above, this court has held that state trial judges have an obligation to assure their courts are conducted in an orderly and correct manner. The trial court does so by scheduling cases, which is tantamount to a direct order of the court, and the disobedience of that order is such an interference with the administration of justice as to constitute contempt.

Here, Perroni asserts that he did everything he could to address and alleviate the scheduling conflict regarding the Ross and Perani cases, but his assertion is not borne out by his own assessment of the facts. As previously noted, Perroni concedes that nowhere in the record is it shown that he ever informed Judge Wright that the state case of Ross v. State had been set prior to the Pirani case, even though Perroni had many opportunities to do so. If Perroni had done so, and Judge Wright had refused to continue or to reset the Pirani case on her docket, then perhaps Perroni’s argument may have had some merit.

It is most reasonable and plausible to believe Judge Wright would have deferred to the State to try its case first, since it was set prior to Pirani’s case and the Ross case was the oldest active case on the state court’s docket. It is equally reasonable for Judge Fox to reject Perroni’s last minute “offer” to advise Judge Wright that Judge Fox wanted Perroni to file a continuance motion in the Pirani case. At this late stage of the Ross and Pirani cases, it was Perroni’s responsibility, not Judge Fox’s, to let Judge Wright know how Perroni got himself into this conflict situation. Again, Perroni repeatedly conceded he never put Judge Wright on notice of the conflict between the state and federal courts’ scheduling orders. In viewing Perroni’s failure to address his conflict problem with both the federal and state judges when he had more than five months to do so, Judge Fox was correct in holding that Perroni’s disobedience of the scheduling order constituted contempt because Perroni’s actions (or inactions) clearly interfered with the trial court’s business or proceedings and reflected upon the court’s integrity.

As discussed above, Perroni raised six subpoints whereby he attempts to question Judge Fox’s bias and attacks Judge Fox’s refusal to recuse. However, none of these points adversely affect the facts and Perroni’s concessions, which we have already held support Judge Fox’s finding of contempt. Consequently, these points become superfluous matters, and we need not address them further. Based on these facts, Judge Fox was justified in issuing a show-cause order and finding Perroni in contempt for willfully failing to comply with the state court’s scheduling order.

Before leaving Perroni’s recusal and contempt issues, we consider Perroni’s additional argument that the Supremacy Clause of the United States Constitution required him to obey the federal court scheduling order, rather than the state court’s order. The Supremacy Clause, found in Article 6 of the Constitution, provides that:

[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

As the State points out, this is a challenge to the validity of the circuit court’s order, and as such, it cannot be considered in this appeal. See Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993) (court will not go behind the order to determine its validity). Moreover, the argument is meritless. Perroni cites nothing that would support his apparent assertion that a federal court’s trial date is tantamount to a “law[ ] of the United States,” such that it would utterly nullify a state court’s order. A Pennsylvania court rejected an identical argument in a factually identical case as “frivolous and lacking merit.” See Swoyer v. Commonwealth Department of Transportation, 599 A.2d 710 (Pa. Commonw. Ct. 1991). We agree with the Swoyer court.

Finally, we turn to Perroni’s third point for reversal, wherein he contends that the trial court failed to accord him his constitutional protections. Perroni first argues that the trial court erred when it denied his motion for jury trial on the contempt charge, and violated the provisions of Brady v. Maryland, 373 U.S. 83 (1963), when it denied his motion for exculpatory evidence.

In support of his argument that Judge Fox denied him his constitutional right to a jury trial, Perroni cites Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). However, Etoch actually undermines Perroni’s argument. There, Louis Etoch was charged with criminal contempt, tried without a jury, and sentenced by the trial judge to only a few days in prison. In reversin'g, this court noted that criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings. Id. at 365 (citing Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988)).

However, petty contempt, like other petty criminal offenses, may be tried without a jury. Id. (citing Taylor v. Hayes, 18 U.S. 488 (1974)). Contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Id. In cases of criminal contempt, this court wrote, the better practice is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise, one may be demanded.” Id. (emphasis added).

Here, at the outset of the March 5, 2003, hearing, Judge Fox stated from the bench the following: “I am announcing that in the event of a finding of criminal contempt by the court, the range of punishment will not exceed six months’ incarceration.” (Emphasis added.) Therefore, under the explicit holding of Etoch, Perroni was not entitled to a jury trial, and the trial court did not err in denying his request for one. To note the obvious, Judge Fox never imposed any incarceration in this contempt matter.

Next, Perroni contends that the judge erred in denying his motion for exculpatory evidence. Brady v. Maryland, 373 U.S.83 (1963), of course, held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” See also Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002); Ark. R. Crim. P. 17.1(d). However, Perroni cites no case, and our research has revealed none, where the Brady requirements have been held to be applicable in contempt proceedings; this makes sense, because there is no prosecutor, per se, in contempt matters. Instead, the purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

It is true that this court has held that criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings. See id. at 140. However, to date, this court has only held that due process requires, in criminal contempt proceedings, that an alleged contemnor be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge. Id.; see also Ark. Dep’t of Human Servs. v. R.P., supra. Perroni cites no authority to the contrary, and because this court will not consider an argument made without convincing authority, we reject Perroni’s Brady claim.

Furthermore, the court rejects Perroni’s claim because he has made no showing that the State — to the extent it was required to be involved here — “was ever aware of or in possession of such [exculpatory] evidence.” See Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam). In State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000), citing Strickler v. Greene, 527 U.S. 263 (1999), we stated the test for Brady violations as follows:

The Court, in Strickler, . . . outlined three elements of a true Brady violation. These components include: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either wilfully or inadvertently; and (3) prejudice must have ensued.

In Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000), we noted that prejudice can be demonstrated when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. However, key among these factors is that prejudice must be demonstrated.

Here, Perroni does not even argue that he was prejudiced; instead, he baldly asserts that Judge Fox “committed reversible error by failing to accord Perroni his constitutional protections provided under Brady and its progeny.” We have repeatedly held that we will not reverse in the absence of a demonstration of prejudice. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003); Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002); Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Therefore, because Perroni has not demonstrated prejudice, this court affirms on this issue.

For the reasons stated above, we affirm.

Brown, Imber, and Thornton, JJ., dissent.

1 Perroni related that he could not recall why the first continuance was granted, but the second one was because the state court severed charges against Ross and the two other co-defendants. The third and fourth continuances were because of two separate defendants Perroni represented in different federal district courts whose trial settings conflicted with a trial setting in the Ross case. He further said that the fifth continuance was granted because the Ross trial was preempted by a capital felony murder case.

2 Ark. Code Ann. § 16-84-lll(b) provides:

[F]or a felony when a defendant is upon bail, he may remain upon bail or be kept in actual custody as the court may direct. If the defendant remains on bail, any surety's liability shall be exonerated unless the surety has agreed to remain as the surety until final judgment is rendered. (Emphasis added.)

Perroni’s motion also mentioned that he had been the treasurer for attorney Leon Johnson who was Fox’s past opponent and candidate for circuit judge — a race Johnson lost. Perroni’s partner James, asserted that Judge Fox’s action of placing Ross in jail was some type of retaliation against Perroni.

3 At the March 14,2003, hearing on the show-cause order, Judge Fox clarified these comments, stating as follows:

My understanding of the question, the tone in which it was asked at that time, was that Mr. Perroni was attempting to get this court to order him to file a motion for continuance so that he could represent to Judge Wright that that’s what had happened. It’s not this court’s obligation to manage Mr. Perroni’s litigation practice, and it’s certainly not — he’s not entitled to use the authority of this court to represent to some other judge that that’s what has been ordered.