           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                     August 19, 1999

                                                             Cecil Crowson, Jr.
                           APRIL 1999 SESSION                Appellate C ourt
                                                                 Clerk



STATE OF TENNESSEE                *    C.C.A. #03C01-9812-CC-00430

      Appellee,                   *    Blount County

vs.                               *

HUBERT D. PATTY,                  *    Hon. D. Kelly Thomas, Jr., Judge

      Appellant.                  *    (Order of Contempt)

                                  *




For Appellant:                         For Appellee:

Hubert D. Patty                        Paul G. Summers
P.O. Box 5449                          Attorney General and Reporter
Maryville, TN 37804-2401               425 Fifth Avenue North
                                       Nashville, TN 37243

                                       Michael J. Fahey II
                                       Assistant Attorney General
                                       Criminal Justice Division
                                       425 Fifth Avenue North
                                       Nashville, TN 37243




OPINION FILED:



REVERSED AND REMANDED



NORMA MCGEE OGLE, JUDGE
                                                   OPINION



                  Attorney, Hubert D. Patty, 1 appeals as of right the judgment of the

Blount County Criminal Court summarily holding him in criminal contempt and

imposing a fine of fifty dollars ($50.00). The trial court also taxed the appellant with

court costs stemming from his conduct, amounting to nine hundred and twenty-five

dollars and twenty-two cents ($925.22). The appellant presents the following issues

for our review:

                  1.        Whether the evidence is sufficient to
                            support the trial court’s judgment.
                  2.        Whether the trial court denied the appellant
                            due process of law.
                  3.        Whether Judge D. Kelly Thomas, Jr.,
                            should have recused himself from the
                            contempt proceedings.

Following a thorough review of the record and the parties’ briefs, we reverse the

judgment of the trial court and remand this case for proceedings consistent with this

opinion.



                                           Factual Background

                  On June 1, 1998, a Blount County Grand Jury indicted Douglas Boruff

for the offense of rape of a child. The trial judge, D. Kelly Thomas, Jr., appointed

the District Public Defender, Mack Garner, to represent Mr. Boruff. On July 21,

1998, Judge Thomas entered an order scheduling, among other items, a discovery

deadline of September 14, 1998, and a trial date of November 12, 1998.




         1
           In co mp liance with T enn . R. A pp. P . 30(b )(2) a nd (d )(2), th e par ties h ave s tyled th eir
pleadings before this court “State of Tennessee v. Douglas Boruff.” Tenn. R. App. P. 30 provides that
pap ers a ddre sse d to th is cou rt sho uld co ntain a cap tion s etting forth the title of the cas e as it
appeared in the trial court. In this case, the trial court included its order of contempt in its order
granting Mr. Patty’s motion for a continuance on behalf of his client, Douglas Boruff. Notwithstanding
the title of the cas e in the trial co urt an d bec aus e Mr . Patty, rathe r than Mr. B oruf f, is the appe llant in
these p roceed ings, we h ave styled th is opinion “S tate v. Hub ert D. Pa tty.”

                                                         2
              On October 26, 1998, the appellant appeared before Judge Thomas

on behalf of Mr. Boruff. According to the appellant, Mr. Boruff had asked that the

appellant replace Mr. Garner as his attorney in the pending rape of a child case.

The appellant asked the trial court to authorize a substitution of counsel. He further

indicated that he would not be ready for trial on November 12, 1998, and requested

a continuance of the trial date. Judge Thomas denied the motion to continue the

trial date and further stated to the appellant:

              The case is set for trial on the 12th. He’s got an
              appointed attorney. And if someone else wants to be his
              attorney on the 12th, that is between him - - Mr. Boruff
              and the attorney. And if the case, for some reason,
              doesn’t go to trial on the 12th, then the attorney can
              change then, too. But it’s too late to come in, in a rape of
              a child case, two weeks before trial and say, I’ve hired a
              lawyer and have the case knocked off the docket.

An entry in the record on the same day, signed by the trial court and entitled

“Arraignment,” provided:

              This matter came on the Court’s docket this date,
              represented by Hubert Patty. It appearing that the
              defendant has retained Hubert Patty to represent him in
              this matter, the District Public Defender’s office is allowed
              to withdraw. Upon oral Motion for Continuance filed by
              defendant’s counsel and after hearing argument from
              counsel for both parties, the Court is of the opinion that
              this motion is not well taken and is overruled. This
              matter shall remain set for trial on 11/12/98.



              Subsequently, the appellant signed an agreed order, entered by the

court on October 29, 1998, which authorized substitution of counsel. The order

provided:

              Upon motion of the Defendant, Douglas Boruff, for an
              Order allowing the substitution of his attorney of record in
              the above-noted cause, and it appearing that respondent
              has hired Hubert Patty, who agrees to represent the
              Defendant in the above styled case at trial on November
              12, 1998, and that respondent’s original counsel, Mack
              Garner, should be allowed to withdraw.

              IT IS ORDERED by the Court that Mack Garner be

                                            3
               allowed to withdraw as the attorney of record for
               Defendant, Douglas Boruff, and that Hubert Patty is
               substituted as attorney of record for Defendant, Douglas
               Boruff . . . . It is further ordered that this case shall
               remain on the trial docket to be heard on November 12,
               1998.



               On November 6, 1998, the appellant again filed a motion to continue

the trial date in Mr. Boruff’s case and attached an affidavit to the motion. In his

affidavit, the appellant attested that he had contacted the appellant’s prior attorney

immediately following the entry of the October 29, 1998 order authorizing

substitution of counsel. However, Mr. Garner was able to provide very little

information about Mr. Boruff’s case, as the State had not yet responded to Mr.

Garner’s discovery requests. On November 2, 1998, the assistant district attorney

general provided the appellant with information which suggested that a Dr. Cecil

Howard possessed exculpatory evidence in Mr. Boruff’s case. The appellant

contacted Dr. Howard’s office, but was informed that Dr. Howard could not meet

with the appellant until November 12, 1998, the scheduled trial date.



               On November 12, 1998, the appellant renewed orally his motion for a

continuance. However, upon questioning by the trial court, the appellant admitted

that, contrary to his affidavit, he had reviewed Mr. Garner’s file on October 26, 1998.

Accordingly, he was aware of the prior lack of preparation and lack of discovery in

Mr. Boruff’s case before signing the October 29, 1998 agreed order. He was also

aware at that time that he would be unable to adequately prepare for trial by the

agreed date.



               In defense, the appellant asserted to the trial court that, when he

signed the October 29, 1998 order, he did not realize that he was agreeing to the

November 12, 1998 trial date. He believed that the order

                                            4
             was a step necessary to switch counsel, I just assumed.

                                        ***

             I think I never indicated to the Court that I could be ready
             except what might be reflected in these orders.

                                         ***

             I’m - - again, I say I didn’t draft this order and I just
             signed it as a matter of course to get it up there. But I
             represented to the Court from the very beginning, I
             thought it - - I couldn’t be ready by the 12th.



             The trial court continued Mr. Boruff’s case until December 16, 1998,

but also held the appellant in criminal contempt of court. The trial court concluded:

             [T]he Court finds that from what you’ve told me here
             today that you knew on the 26th of October, by having
             talked with Mack Garner and seeing the file, that not
             enough work had been done for you to possibly be able
             to try this case on November 12th. The Court further
             finds - - and on that same day, I had already denied a
             continuance for a general reason of not being able to
             prepare and for that reason didn’t allow you to take the
             case as counsel for Mr. Boruff.

             The Court further finds that you signed this order on the
             29th day of October of ‘98, which is in the court file,
             saying that you agreed to represent the Defendant in the
             above-styled case at trial on November 12th of ‘98 and
             you knew at that time when you signed that order and
             you had known for at least three or four days that you
             could not be ready for trial - - or signed an order stating
             that you would be anyway, in order to get in the case as
             Mr. Boruff’s lawyer.

             And then on the 6th of November, filed a motion for a
             continuance because you hadn’t had time to fully
             prepare. Having time to fully prepare is not the point.
             The point is that when you told me you couldn’t be ready,
             I felt like that was a reasonable statement and I said it’s
             too late to be substituting counsel, he’s going to have to
             go to trial with his own counsel on the trial date and you
             cannot be his lawyer.

              And in order to be his lawyer, you signed an order
              agreeing to something that you knew when you signed it
              that you could not perform. And that is plain and simple
              contempt of court for subverting and disrupting the
              Court’s docket and the Court’s order. And I am finding

                                          5
              you in contempt.

                                          ***

              . . . But I would never have signed the order allowing Mr.
              Patty in this case had there not been a clear statement in
              that order that he agreed to be here ready for trial today .
              . . . But instead Mr. Patty signed that order and
              defrauded me when he knew full well that he couldn’t be
              ready.

The court also reported the appellant’s conduct to the Board of Professional

Responsibility.



                                       Analysis

              The purpose of criminal contempt proceedings is to vindicate a court’s

authority and to maintain the integrity of court orders. Wilson v. Wilson, 984 S.W.2d

898, 904 (Tenn. 1998); Robinson v. Air Draulics Engineering Company, Inc., 377

S.W.2d 908, 912 (Tenn. 1964). That having been said, a trial court “must abide

strictly by the ‘absolute provisions of the law’” in exercising its power to impose

contempt sanctions. Sanders, No. 01A01-9601-GS-00021, 1997 WL 15228, at *3.



              Thus, the trial court may only “issue attachments, and inflict

punishments for contempt of court” on the basis of conduct described in Tenn.

Code. Ann. § 29-9-102 (1980). See also Black v. Blount, 938 S.W.2d 394, 397-398

(Tenn. 1996); State v. Turner, 914 S.W.2d 951, 955 (Tenn. Crim. App. 1995). Tenn.

Code. Ann. § 29-9-102 sets forth the following grounds for contempt proceedings:

              (1)    The willful misbehavior of any person in the
                     presence of the court, or so near thereto as
                     to obstruct the administration of justice.
              (2)    The willful misbehavior of any of the officers
                     of said courts, in their official transactions.
              (3)    The willful disobedience or resistance of
                     any officer of the said courts, party, juror,
                     witness, or any other person, to any lawful
                     writ, process, order, rule, decree, or
                     command of said courts.
              (4)    Abuse of, or unlawful interference with, the

                                            6
                         process or proceedings of the court.
                (5)      Willfully conversing with jurors . . . .
                (6)      Any other act or omission declared a
                         contempt by law.

Our supreme court has further observed that the power to punish for contempt

“should be exercised only when necessary to prevent actual, direct obstruction of, or

interference with, the administration of justice.” Robinson, 377 S.W.2d at 912.

                [C]riminal contempt that obstructs the administration of
                justice has generally been defined as any willful
                misconduct which embarrasses, hinders, or obstructs a
                court in its administration of justice or derogates the
                court’s authority or dignity, thereby bringing the
                administration of law into disrepute.

Black, 938 S.W.2d at 399.



                In this case, the trial court held the appellant in contempt for

“subverting and disrupting the Court’s docket and the Court’s order.” Specifically,

according to the trial court’s findings at the conclusion of the November 12, 1998

hearing, the contemptuous conduct occurred when the appellant signed the October

29, 1998 agreed order, knowing that the scheduled trial date was a condition of his

representation and knowing that he would not be prepared for trial on the scheduled

date.2 Assuming that the trial court’s findings of fact are supported by sufficient

evidence, the appellant’s conduct was encompassed by Tenn. Code. Ann. § 29-9-

102 (2), (3), or (4).



                In a criminal contempt case, the guilt of the accused must be

established beyond a reasonable doubt. Black, 938 S.W.2d at 398. On appeal, this

court applies the same standard of review to criminal contempt cases as the court

applies in other criminal proceedings. Id. at 399; State v. Creasy, 885 S.W.2d 829,


        2
          We reject the State’s argument in its brief that the contemptuous conduct occurred when the
appellan t announ ced to the court on Novem ber 12, 1 998, that h e was n ot prepa red to pro ceed w ith
Mr. B oruf f’s tria l.

                                                   7
833 (Tenn. Crim. App. 1994). Thus, the appellant must establish that no

“reasonable trier of fact” could have found the essential elements of contempt

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789 (1979); Tenn. R. App. P. 13(e). This court will not reweigh the proof on

appeal. Black, 938 S.W.2d at 398.



              Applying this standard, we must conclude that the trial court’s

judgment was supported by sufficient evidence. However, in reviewing the record,

we note that the appellant’s conduct did not occur in the presence of the trial court.

As noted earlier, the trial court in this case invoked summary contempt proceedings.

Tenn. R. Crim. P. 42 (a) provides that a judge may summarily punish a criminal

contempt only if the judge certifies that he saw or heard the conduct constituting the

contempt and that it was committed in the actual presence of the court. Id. at (a);

Black, 938 S.W.2d at 398; State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978). In

contrast, courts imposing criminal contempt sanctions for acts committed outside of

their presence must comply with more stringent procedural standards, including

providing notice to an accused and an opportunity to present a defense. Tenn. R.

Crim. P. 42(b); Black, 938 S.W.2d at 398; Maddux, 571 S.W.2d at 821. See also

Turner, 914 S.W.2d at 955.



              Even in the context of conduct committed in its presence, a trial court

should utilize summary contempt proceedings “sparingly, . . . in cases of

‘exceptional circumstances’” when there is a need to act swiftly and firmly to prevent

contumacious conduct from disrupting a judicial proceeding.” Turner, 914 S.W.2d at

957-959; Sanders, No. 01A01-9601-GS-00021, 1997 WL 15228, at *3. In short,

“the court[s] have evinced a preference for proceedings that involve notice, a

hearing, and even, a different judge. Turner, 914 S.W.2d at 959.


                                           8
             In light of these principles and on the basis of the record before this

court, we must conclude that the appellant was entitled to notice and a hearing prior

to the imposition of contempt sanctions and that the trial court abused its discretion

by summarily holding the appellant in contempt. However, while the trial judge was

understandably upset by the turn of events, this record does not establish that he

was biased in any way against the appellant. Nevertheless, we would suggest that

the trial judge recuse himself upon remand. “Recusal is always preferred unless it

would result in prejudicial or injurious delay.” See Turner, 914 S.W. 2d at 961.



                                     Conclusion

             We reverse the judgment of the trial court and remand this case for

proceedings consistent with this opinion and Tenn. R. Crim. P. 42.




                                                Norma McGee Ogle, Judge




Jerry L. Smith, Judge




Joe G. Riley, Judge




                                           9
