Poindexter v. Commonwealth

389 S.W.3d 112, 2012 WL 6634316, 2012 Ky. LEXIS 204
CourtKentucky Supreme Court
DecidedDecember 20, 2012
DocketNo. 2011-SC-000275-DG
StatusPublished
Cited by6 cases

This text of 389 S.W.3d 112 (Poindexter v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poindexter v. Commonwealth, 389 S.W.3d 112, 2012 WL 6634316, 2012 Ky. LEXIS 204 (Ky. 2012).

Opinions

Opinion of the Court by

Justice SCOTT.

The Adair Circuit Court found Appellant, Stephen H. Poindexter, a licensed attorney, in criminal contempt of court for failing to appear at a client’s arraignment. The Court of Appeals subsequently affirmed and we accepted discretionary review. Appellant argues to this Court that (1) he was under no duty to appear at the arraignment because he had withdrawn from representing the client, and (2) even if he had a duty to appear there were insufficient grounds upon which to find him in criminal contempt. For the following reasons, we affirm.

I. BACKGROUND

An Adair County grand jury returned a multiple-count indictment against Waylon Bradshaw on November 24, 2009. Bradshaw hired Appellant to represent him sometime before his December 15, 2009 arraignment. However, at the December 15 court date another attorney, Michael Harris, appeared with Bradshaw in Appellant’s stead. Harris informed the court that he was appearing on behalf of Appellant, but the trial court told Harris that if he represented Bradshaw at the arraignment, Harris would be entered as the attorney of record pursuant to local court rules. Harris indicated that he did not wish to-be the attorney of record and the trial court passed Bradshaw’s arraignment until January 12, 2010.

Appellant, though, had a scheduling conflict on January 12; he had received a fellowship from the University of Kentucky to attend a professional conference on that date. Initially, Appellant believed the arraignment was scheduled for January 12 at 9:00 a.m. and therefore he would be able to attend it before the conference. The arraignment, however, was actually scheduled for 1:00 p.m. pursuant to the local rules of practice for the 29th Judicial Circuit.1 The December 15 docket entry also contained the notation: “Cont. to 1/12/2010[.] To appear with counsel.”

On December 22, 2009, Appellant prepared and signed a Notice of Entry of Appearance as Bradshaw’s attorney which was filed in the Clerk’s office on December 28, 2009. Thereafter, Appellant contacted the Commonwealth’s Attorney who agreed to again continue the arraignment in light [114]*114of Appellant’s scheduling conflict. Appellant prepared an Agreed Order to that effect and tendered it to the trial judge. The judge, however, declined to approve it and added the following notation: “This case has been continued on one previous occasion. The Defendant and counsel shall be present on January 12, 2010 at 1:00 p.m.” The judge signed his name under this notation and it was entered into the record on January 4, 2010.

On January 11, 2010 — the day before Bradshaw’s rescheduled arraignment — Appellant filed a Notice of Non-Representation stating he would no longer be representing Bradshaw and that Bradshaw would be seeking representation by Theodore Lavit. Appellant also filed a Revocation of Bond Assignment Proceeds the same day.

When the trial court called the case on January 12, 2010, Bradshaw appeared without counsel. Bradshaw informed the court that Appellant had contacted him the previous Friday, January 8, 2010, and advised him to find another attorney. The trial court nevertheless noted Appellant’s appearance as attorney of record because it had declined to sign the Agreed Order of continuance and had ordered counsel to be present. The trial court then continued Bradshaw’s arraignment until January 19, 2010, and ordered a criminal summons for Appellant to appear the following week to show cause why he should not be held in contempt.

At the contempt hearing, the trial court noted that Appellant had signed the Entry of Appearance on December 22, 2009, filed it on December 28, and then asked if it was Appellant’s position that he was unaware of the conference when doing so; Appellant conceded that it was not. The trial court then noted the local rules of court about attorney appearances.2 The court further noted that Appellant’s Entry of Appearance did not request Bradshaw’s arraignment to be passed to a later date. Finally, the trial court noted that Appellant had practiced in the court for several years and knew the rules; and although Appellant contended that he believed he was complying with the rules when Lavit said he would appear on Bradshaw’s behalf, the court stated that Lavit still had not appeared but only had said he was going to represent Bradshaw.

Ultimately, the trial court found that Appellant intentionally failed to appear on January 12, 2010 and held him in criminal contempt of court. It ordered him to pay a $250 fine and spend 96 hours in jail, but probated the jail time for two years on the condition that he not violate any other orders of the court.

The Court of Appeals subsequently affirmed, holding that Appellant did not request permission from the trial court to withdraw as counsel, and that the evidence was sufficient to support the court’s finding that Appellant’s failure to appear for the arraignment was deliberate and willful, constituting criminal contempt. We accepted discretionary review and now affirm.

Additional facts will be provided where helpful to our analysis.

II. ANALYSIS

Appellant presents this Court with two arguments. First, he. contends that he [115]*115had withdrawn as Bradshaw’s counsel and therefore had no duty to appear at the arraignment. Second, he contends that even if he did have a duty to appear, there were insufficient grounds upon which to find him in criminal contempt.

A. Duty to Appear

Appellant’s first argument — that he was under no duty to appear at the arraignment — is two-fold. First, he contends that he had not “appeared” as Bradshaw’s counsel as that term is contemplated by the local court rule, and he therefore did not need to show “extraordinary circumstances” to withdraw. Second, he alleges that his Notice of Non-Representation and Revocation of Assignment of Bond Proceeds provided the court with sufficient notice to relieve him of any duty to appear at the arraignment.

When an attorney has a duty to appear in court and does not, his failure to appear may be treated as criminal contempt. Brockman v. Commonwealth, 185 S.W.3d 205, 208 (Ky.App.2005); Commonwealth v. Pace, 15 S.W.3d 393, 395 (Ky.App.2000). To determine whether a duty to appear existed we look to the Adair Circuit Court’s local rules.

The Rules of Court Practice and Procedure for the 29th Judicial Circuit— which includes Adair County — provide, in relevant part:

CRIMINAL PROCEEDINGS 3. REPRESENTATION IN CRIMINAL CASES
Once an attorney appears for a defendant in a criminal case, he/she shall not be allowed to withdraw as counsel thereafter, except upon a showing of extraordinary circumstances.

Michie’s Ky. Rules Ann. vol. 3, at 1120 (LexisNexis 2012). Thus, the question becomes whether Appellant had appeared for Bradshaw in his criminal case as contemplated by the rule. Appellant argues that because he had not yet appeared in court on Bradshaw’s behalf, the requirement to show “extraordinary circumstances” to withdraw was not triggered, and therefore the steps he took to inform the court of his withdrawal were sufficient. We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
389 S.W.3d 112, 2012 WL 6634316, 2012 Ky. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poindexter-v-commonwealth-ky-2012.