*1 THOMPSON, Jr., Appellant N. Theodis Arkansas, Appellee
STATE
No. CR-16-207
Supreme Court Arkansas.
Opinion Delivered November
Thompson argues right that his- to due process was violated because he was de- prived proper notice. the criminal- contempt charge.. response, the State responds Thompson because- al- ready his of imprison- sentence ment, Thompson’s appeal is moot and we appeal. should dismiss his We reverse and dismiss. facts related stem Thompson’s representation of defen- charges
dant Baker Michael on criminal County the Prairie Court. Baker’s Circuit. hearing Sep- scheduled for a on case was 22, , 28, August 2015, 2015. On tember. Thompson a letter sent .circuit court he and that was unable indicated attend 22, September hearing because he a continuing- scheduled attend was. (“CLE”) |2day. legal-education course 4, 2015, On the circuit court September Thompson acknowledging sent letter 28, receipt Thompson’s August 2015 let- ter. The court’s letter indicated that circuit if Thompson to have the Septem- wished 22, continued, he ber should Septem- file motion for On continuance. a. 11, 2015, Thompson filed a motion ber for continuance, but court never acted on the motion. 2015, 22, September Thomp- neither
On appeared hearing. son nor at the Baker Rock, Rosenzweig, for appel- Jeff Little McCoy- Reed Rebecca called Prosecutor lant. Thompson Thompson, and indicated that attending a CLE and was not Gen., he was Rutledge, Att’y by: Leslie Chris- McCoy Thompson Gen., coming court. Harris, Rock, Att’y tian Ass’t Little hearing for Baker’s November appellee. for rescheduled 2015, 2015, Thomp- September On BAKER, KAREN R. Associate Justice circuit court to son faxed letter hearing was confirm that scheduled | attorney N. Thompson, Theodis 17, 2015, a.m. At the at 9:00 November appeals from an Prairie Coun- hear- conclusion the September him in. ty finding Circuit Court court, ing, prose- instructed the the circuit appear failure to show an order to cause. cutor prepare to the scheduled Pursuant circuit order, On court’s served sentence - through Timothy imprisonment. appeal, t-four hours On Deputy, Prosecutor by court this and I was assured staff Isaac, petition appear its 0. filed get the contin- that I would be able On show cause. Unfortunately, an uance. Order petition State’s granted circuit allowing my Mo- presented not been and ordered 17, 2015, I do believe at 9:00 tion Continuance. cause November show *3 that I filed after that notice the actual Motion The order reflected a.m. request- on this according being to Rule 5 retained matter had been served Procedure. un- ing Arkansas Rules Civil that this matter be continued a fortunately wasn’t ever Mo- there 17, 2015, Thompson ap- On November granting tion—excuse me—an Order probation-revocation for Baker’s peared ; that Continuance. that hearing. The circuit court announced causé. it first hear the order show would Counsel, you understand do The Court: court, Thompson to the circuit response is not the same as filing that Motion explained represent that he was there beihg an order? probation-revocation hearing at the Baker Thompson: I Honor. realize Your notice alleged that he had received IAnd understand— | following The of the order show Scause. colloquy testifying—or occurred: if you’re Court: And if you’re some- representing to me that I if just want determine
The CouRt: power or than I have the Cause, one other I’m the Order which Show implied they power grant now, had requested that looking at which continuance, very I would find that appear in front of be cited Counsel cause, any, why if difficult— this to show Court appeal’ represent he failed Thompson: Honor, And, Your I’m not Baker, client, in ease CR- Michael just |4simply saying that all. I’m at 2014-25, case was set for hear- which Honor, my on saying, Your based 22, 2015. The Court ing on will be sent— belief that the Order entries, having examined the docket Honor, and, looking back at Your presented, facts considered seeing being the file the Order correspondence with the reviewed my understanding presented, it was Thompson, M. Court and Theodis going it to be someone—it was hereby that it should be and is finds made, going I to be a continuance hereby And it is ordered that granted. for someone to would have asked at you are to the Courthouse my particular on that stand stead why you should today at 9:00 show date, Honor, had I known Your adjudged of court. not be going given. also was not to be And on, goes It service to— by 5 of Arkansas provided Rule Well, Counsel, point, The Court: I of Civil And don’t Rules Procedure. the, You are Order been served. service. see on here. intend have a I have a Certificate I PROSECUTORIssac: That’s today. this. can do it We placed it was first Service said you ready for. day it’s Are scheduled 24,2015. mail on class to proceed, Mr. Issac?. Thompson: I filed a motion—Your Hon- or, ready to I Issac: The filed Motion for a Continuance State Prosecutor just proceed. on this matter. retained of, And, already part case that it’s Thompson, you’re Mr. filed Coukt: mailing is you’re not a of if that first class sufficient. here and it’s willing proceed. proceeding. We are you The Court: sent first class So Thompson: Okay. mail? And, Thompson, ... Mr. do The Couet: it’s pre- did. And Prosecutor Issac: testify? you plan to upon depositing sumed to be served Honor, Thompson: No, Your into mail. So we believe it’s seen served. you who Very good. And do Court: to call intend as witness? that it Okay. I find has been Court: Rules, Thompson: served as far as the Proce- And, Honor, just Your required. dure are And Mr. sure, *4 hearing the make we’re to of the facts appears be aware sur- Cause, on the to is that Order Show going rounding the incident. So we’re correct? go to ahead and— Yes, sir. The Court: Thompson: No, mean, my Your Honor. I Thompson: Okay. understanding today we to Court: The Order Show Cause— The hearing would have our for scheduled you copy a of .that should have Order. my arraignment plea client’s re- Thompson: saying. That’s I’m I what I garding his revocation. don’t under- copy don’t of that I have Order. on this to stand the facts Order Show mean, I that. don’t have given I Cause. was never notice of Well, going The Court: then there’s to knowledge this. I had no of this. And presentation have be some estab- standing you today saying here before properly have you lish been know, that, my you Motion for Contin- served. uance, of, which the Court has record | .¡¡Thompson: mean, going I if that’s although an Order hadn’t been en- testify far
require me to as the tered, I wasn’t aware of this matter Cause, yeah, I Order Show then going forward on an Order to Show I testify. But don’t would like have I believe that I’m in vio- Cause. don’t particular copy order. of— lation That’s we have what trials
The Court: Mr. respond. forward, And, Court: Let Mr. Issac for. Go Mr. Issac. Mr. the Notice. The Issac was serve Now, Thompson, you may have a seat. reflects, signed Isaac, Order that was proof have you Mr. do ser- Court, in that it be served accor- vice? 5 of the dance with Rule Arkansas my copy | I Issac: 6Prosecutor Rules of Civil Procedure. nowWe the Certificate Service. Thompson alleging have Mr. that he not been filed It’s with The Court: in accordance with served Court. 5. If he wasn’t he’ll be re- Rule well Sep- It filed on Issac: Prosecutor proof of was.
served. If he was and there’s 24,2015. tember that, going go forward. the Court Well, may-show just It but it’s State Prosecutor Issac: Court: is, it file. If it’s not the Court asserts that we believe we followed it should be. since it is the order the Rules Civil Procedure I. Mootness approach, If I .can PROSECUTOR Issac: n you my copy. can see matter, we must As a threshold Well, Yes, this is sir. Court: issue before us is determine whether the court file.... argues that appeal, moot. On the State Thompson’s appeal pursuant is moot I Okay, go. here we ... The Court: precedent Swindle hereby certify that on (2008), indicates which deposited pleading with the finding from a of criminal first United Postal Service with States contempt is moot once the sentence prepared postage mail addressed class Swindle, the circuit court been served. gives Thompson, to Theodis M. attorney in criminal found an address, that’s attached to the failing standing the court’s comply with Petition Order Show Cause. for his request jury trial client do see that now. forty-eight hours before the scheduled trial hearing, At the conclusion However, held that date. we Swindle’s Thompson in criminal circuit court found challenges to the circuit court’s order of contempt of court for his failure moot due to the fact that contempt were already his sentence of Swindle *5 twenty-four im- him to hours sentenced Thompson that confinement. contends prisonment County in the Prairie Jail. opin is asks the flawed and that Swindle Thompson imprison- his of sentence ion be overruled. ment, thereafter, a motion for filed Thompson’s position persuasive findWe trial, circuit new which the court denied that for the reasons follow. Code Arkansas 15, 2015, a without On December (a) section 16-91-101 states that Annotated of Thompson appeal. his notice filed of or “any person a misdemeanor convicted Thompson argues appeal, On felony by-virtue any of a trial circuit right process that his to due was violated right appeal of this the of court state has proper he of deprived because was notice 1(a) Further, Supreme to the Rule Court.” contempt charge. of The stan the criminal Appellate of of the Rules Procedure— of in a of criminal con dard review case “any person that convicted Criminal states is tempt well an court appellate settled: felony by of a of a or a misdemeanor virtue light views the record in the most favor any trial in of has circuit court this state able to the trial court’s decision and sus right appeal the to the Arkansas Court supported by tains that if it is decision |sof Appeals Supreme of or to the Court Conlee, v. substantial evidence. Conlee 370 1(c) Further, we note that Rule Arkansas.” (2007). 543 Ark. 257 Substantial S.W.3d Appellate of of the Rules Procedure-Crim- is of a sufficient force evidence 17evidence provides “upon inal that of a the death compel, character to a conclusion one defendant, appeal the shall not abate. another, way forcing pass or the mind of a appeal shall continue on the relation Id.; beyond conjecture. or suspicion With representative party provided Ark. erspoon v. 322 Ark. 909 S.W.2d 25(a).” Accordingly, appeal R. P. Civ. (1995). person 314 Where a is held of upon abate even the death does contempt or failure to abide refusal defendant. order, a‘judge’s reviewing the court will Here, clearly not look the convicted behind determine Conlee, supra. it is of a because the criminal whether valid. misdemeanor
67 7-8, 2014 guilty that he found Ark. contempt statute 433 S.W.3d 870)). violating “punishment states that of contempt is a Class C misdemeanor.” Ark. Although the State asserts and 16-10-108(b)(l), § Ann. Because Code circuit found that 5 Rule of Thompson was convicted of a misdemean- of Arkansas Rules Civil Procedure had or, right appeal he the Su- with, complied been we have held that the pursuant Court preme Code Arkansas procedure apply rules civil do not in a 16-91-101(a) section
Annotated and Rule contempt criminal proceeding. Valley v. 1(a) of Appellate of the Rules Procedure- Court, Cty. Pulaski Circuit Ark. differently, Criminal. Stated the mootness (citing Dep’t Human S.W.3d Ark. not bar appeal doctrine does a direct R.P., Se rvs. conviction, Thompson’s criminal-contempt (1998). Valley, we reaffirm has al- despite the fact holding explained ed our in R.P. and his ready served sentence. Based our provision governing which sets forth discussion, right hold that a defendant’s we power punish the court’s criminal appeal to a from his or direct her contempt Arkansas sec is Code Annotated conviction his service of continues after 16-10-108(c) tion pro 16-10-108. Section ' Thus, clearly confinement. Swindle is “contempts vides that in the committed wrong to the extent that it conflicts with presence immediate view and of the court holding doctrine mootness punished summarily. In other Thompson’s not bar does direct appeal cases, party charged be notified shall his criminal conviction. the accusation shall reason pur able time make defense.” Contempt II. Criminal criminal-contempt proceeding pose Having established brought preserve power that it is *6 court, is properly before this we now turn dignity the and and vindicate to crux of Thompson’s argument-that the punish to its disobedience of order. he notice of the did receive State, Fitzhugh v. 752 to appear cause and show (1988). penalties Criminal S.W.2d 275 pursuant to Arkansas Code Annotated sec imposed -alleged not be contemnor tion 16-10-108. protections has not been the who afforded of requires that the Constitution criminal of 16-10- Our review section Id. at at 752 S.W.2d 277. proceedings. 108(c), here, requires the at issue statute Clause, in Process as applied Due strictly, criminal that construe we statutes proceedings, requires that an al criminal resolving any in of doubts favor the defen leged be notified that a 1uicontemnor Cty. James v. Pulaski dant. Circuit pending against charge contempt is him of Court, 2014 Ark. 439 19 (citing of of specific be informed nature and the State, Short v. Ark. S.W.3d 313 . charge. that Id (2002). just as it “We construe a statute reads, 16-10-108(c) ordinary giving the their Based on section Val- words and and meaning in common lan to of usually accepted ley, Thompson be notified the if of of afforded a guage, language and the the statute is accusation and be to plain unambiguous, conveys and and reasonable time make his defense. peti- meaning, finding court’s factual the
clear definite there is no circuit that and f deposited to statutory to rules o tion for order show cause occasion resort to was United Postal interpretation.” (citing Id. v. the States Service “with Walden in this case-is any.event, In the record suffi- postage” was not class mail with first that any of evidence completely devoid that Thompson with notice to provide cient important notified. It is Thompson was contempt for criminal accused of he was purportedly the State note while appear at the failure to appear and petition for order mailed the Further, fails the record Thompson, the record does show-cause provided that was demonstrate that the order was ever not reflect itself appear and notice of the order with appear and to him. The order mailed compli- that notice cause. We hold show of no ser- show contains certificate cause required, ance with constitution And, circuit court looked vice. .while failed establish and the State of file read certificate over the case Therefore, notice. we Thompson received court, concluding open service aloud -. and dismiss.1 reverse service, that proof constituted of it and dismissed.2 Reversed was attached to the certificate service Thus, even assum- petition, not order. Danielson, J., Brill, C.J., concur. been a ing that first-class mail would have notifying Thompson, sufficient method JJ., Wynne, dissent. Wood and simply given. impor- notice was tance of notice the order itself cannot Justice, Danielson, concurring. Paul E. overstated; that com- is the document agree majority’s holding with Ini appear an accused contemnor mands Thompson, Theodis N. appellant date, time, location sets forth the not afforded sufficient notice appearance. my From review appear and show circuit court’s order record, only reason knew view, my In Arkansas Code Anno- cause. hearing the November 16-10-108(c) 2010), (Repl. section tated his client’s was that revocation it, interpreting are un- sum, and our case law |12day. for that was scheduled required as to the notice eases of clear this court has been less than clear while Therefore, I re- contempt. would type required, of notice is we what appropriate this rules it is a holding fer due- resolute been process requirement: committee review. jeopardy Halpaine dismiss on dilemma. 1. Because we reverse and ate a double *7 argument State, 517, 5, 838, Thompson’s point, we do not reach 841 2011 Ark. 385 S.W.3d regarding prosecutor’s the court and (2011)("Constitutional circuit including protections, conflicts of interest. against prohibition jeopardy, apply the double nonsummary criminal-contempt prosecu to although questions Finally, the dissent the
2. Dixon, 688, States 509 U.S. tions. United v. majority’s reasoning to reverse and dismiss 2849, (1993) (hold 113 S.Ct. 125 556 L.Ed.2d opposed as to reverse and remand matter jeopardy precluded prosecu ing that double matter, majority’s position is the the based on tion for offense after the defendant had an applied the which the law as to facts are contempt been held in criminal for said of clearly expressed opinion and no in our need o State, fense); Fitzhugh see als 296 Ark. v. Further, hypothesizing. that, position the dissent’s 137, (applying protec 752 275 the S.W.2d majority elected to reverse and dis- the by tions afforded the Due Process Clause to the because we are "concerned miss criminal-contempt proceedings).” Finally, it is possibility be with the would unnecessary Thompson’s remand guilty a second time on remand” is found due-process regard review the claim with To remand this matter to the nonsensical. notice, above, based on the rec as discussed Thompson to be circuit court for "found us, necessarily guilty ord before there no notice. second time” would cre-
69 - proper The contempt disposition between civil- distinctions [The] funda of such a violation to re up lead to the the event is contempt remand, penal not proposition that criminal verse and reverse and dis mental See, alleged State, on an imposed Fitzhugh not 296 Ark. ties be miss. (1988) (reversing 275 contemner who has been afforded 752 S.W.2d and re manding following re determination that pi’otections the that the Constitution notify proceedings. attorney the an that a quires of criminal ex failure [Hicks Feiock, contempt against charge pending rel. Feioek v. 485 U.S. 108 of (1988).] specific him him of 721 inform the S.Ct. L.Ed.2d Clause, charge crimi applied as the the attor Due Process nature of violated alleged ney’s right process). Even proceedings, requires Thomp nal that an due charge argument son his he re be that a of realizes this. In contemner notified pending against quests is him and be that the reverse and remand due-process specific of that the he asserts. informed the nature violation majority given has him relief he did charge. Id. ar request part due-process as of his State, Fitzhugh v. 296 Ark. gument. (1988). 275, 277 S.W.2d then, majority the Why, has chosen Additionally, my differs from analysis dismiss, opposed as to revers reverse majority’s subject on the the mootness. remanding? I ing posit that there are exception I hold the would is that two reasons this. The first dis because the is applies mootness doctrine remanding allows opposed missing capable repetition is sue involved here See, majority sidestep the the inconvenient e.g., Delancy v. evades review. but already (2004). fact that he has served his sen State, contempt. The fact that the ma tence Brill, C.J., joins this concurrence. jority to overlook this is all compelled feels why more reason this is not the case the Justice, dissenting. Wynne, Robin F. this court should reach different which | Thompson’s ap- believe ^Because regarding applicability conclusion having peal has been moot rendered than it did in Swin mootness doctrine punishment imposed, I would dle v. Ark. 285 S.W.3d Accordingly, respect- appeal. dismiss the (2008). reason, second which follows fully dissent. first, majority con is that the is possibility opinion with the majority An cerned examination of guilty found a second time on would would be why will reveal the better course remand, proble create the which would appeal. Assuming Thompson’s dismiss punish matic what do about majority correct to on the issue reverse merits, Thompson has if that occurs.1 Either applied wrong disposition ment *8 in punishment, his full already served majority opinion reverses the case. The done, damage Thomp or which case the is on the determination and dismisses based pun subjected due-process that a violation son would additional resulted ishment, victory appeal making his Thompson’s failure to receive notice dismissing jeopardy problem has al- majority in- because 1. The that it is states ready fully punishment. This is remanding potential served his because of a stead reversing precisely why court should dismiss jeopardy Of course this double concern. remanding potentially creates a double- as moot. epic ma proportions. one of Pyrrhic precedent confuse willing
jority is 11fiour in an ef due-process violations
regarding potentially unpleasant to avoid the
fort of its decision.
effects is these
My point highlighting in issues agree the decision while flawed, precedent of it is this
Swindle steps, no such ás Thompson took
court. decision, asking for following
objecting adequate appeal, asking for stay pending court, or to file writ with
time
making to file a "sviththis any attempt writ
court, having his appeal to' avoid arguments moot. The facts and
become here to warrant
presented are insufficient here
reaching a different result than little doubt Swindle.
reached future a
there exist in the case
requires us to revisit decision Swin-
dle. This is that case. reasons, I respectfully
For these dissent.
Wood, J., joins.
Willie Arkansas, Respondent
STATE
No. CR-16-765
Supreme Court Arkansas.
Opinion Delivered November