        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 9, 2015 Session

      STATE OF TENNESSEE v. JOHNATHAN DALE ABERNATHY

                   Appeal from the Circuit Court for Giles County
                       No. 16357     Robert L. Jones, Judge


                No. M2014-02350-CCA-R3-CD – Filed April 26, 2016
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Defendant, Johnathan Dale Abernathy, was found not guilty of the charge of domestic
assault. At his arraignment, pursuant to T.C.A. § 40-14-202(e), the trial court had found
that he could pay a portion of his attorney fees even though the public defender was
appointed to represent him. He had only paid a portion of the fees prior to trial.
Subsequent to the trial, Defendant filed a motion to remit some or all of the fees. At the
motion hearing, and without prior notice of contempt charges to be answered, the trial
court summarily held Defendant in civil contempt with the contempt to be purged when
he paid the balance owed. Defendant appealed, and we reverse the judgment of the trial
court and dismiss all contempt charges.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                          Contempt Charges Dismissed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Claudia S. Jack, District Public Defender; and Hershell D. Koger, Assistant Public
Defender, Pulaski, Tennessee, for the Appellant, Johnathan Dale Abernathy.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Brent A. Cooper, District Attorney General; and Beverly White, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       Defendant was indicted by the Giles County Grand Jury for the Class A
misdemeanor offense of domestic assault in violation of T.C.A. § 39-13-111. At his
arraignment, the public defender was appointed to represent Defendant. Pursuant to
T.C.A. § 40-14-202(e), the trial court entered an order in which it found that Defendant
could partially reimburse the State for the cost of providing court appointed counsel, and
ordered in part that “the total sum of $750[.00] will be paid at $50[.00] per week . . .
beginning on 10-4-13 until all is paid or until further orders of this Court.” The order was
entered September 30, 2013. The $750.00 included an administrative fee of $50.00.

      From the record it appears that a jury trial was held on January 14, 2014, and
Defendant was found not guilty. Nine months later, on October 13, 2014, Defendant,
through counsel, filed a “Motion to Remit Attorney Fees.” The motion alleges as
follows:

             Comes now the Defendant, Jonathan Dale Abernathy, by and
        through his attorney of record and would respectfully ask this Court to
        remit some or all of his attorney fees due to indigency with regard to the
        above styled matter.

       The State did not file a response to Defendant’s motion. A hearing was held on
November 13, 2014. After the hearing, the trial court entered an order which states in
pertinent part:

                This cause came on to be heard . . . upon Motion of the Defendant
        . . . to remit attorney fees[.]

           IT IS THEREFORE, ORDERED ADJUDGED AND DECREE
        THAT

              Finds [sic] the Defendant in contempt and shall be held until he
        pays the $310.00 balance. He shall have until 12/12/14 to purge himself
        or report to jail at 8:00 p.m. on 12/12/14[.]

             If timely notice of appeal is filed then execution of this order is
        stayed until further order of this court.

       At the motion hearing, Defendant’s counsel announced that Defendant had paid
$440.00 of the total amount owed, which left a balance of $310.00. Defendant testified
that he worked at “Goodman’s” as a powder coat technician. He reported that he worked
36 to 40 hours per week and earned $18.42 per hour. Defendant testified as to his
monthly expenses for house rent, utilities, child support, health and automobile insurance,
automobile payment, food, and various other miscellaneous expenses. Based upon the
uncontradicted totals for the expenses and sole income for he and his wife, Defendant’s
counsel submitted that the necessary expenses “sounds like it’s pretty much his entire
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paycheck.” Defendant’s further testimony supported this conclusion. Defendant agreed
he was “living paycheck to paycheck.”

       The State did not cross-examine Defendant at the motion hearing and did not offer
any evidence. At the conclusion of the testimony the following transpired:

        THE COURT:          I cannot tell from this printout that’s in the file when
        he made his payments. I think I’m going to hold him in contempt and
        put him in jail today. We’re going to need an officer up here.

        [DEFENSE COUNSEL]: Can I ask why, Judge?

        THE COURT:         Because he was supposed to pay $50[.00] per week
        starting on October the 4th of 2013.

        This was the first time contempt of court was mentioned in the trial court
proceedings. After Defendant’s counsel argued that contempt of court could not be found
absent prior notice of the charges and of the time and date of the contempt hearing, the
trial court made revisions in its decision to hold Defendant in contempt:

        THE COURT:           Okay. I tell you what I’ll do then. I’ll allow him –
        we’ll amend the order finding him in contempt ordering him to be placed
        in jail until he purges by paying the $310[.00] balance but I’m going to
        give him until Friday, December the 12th to pay that $310[.00] to purge.
        If not, he reports to jail at 8:00 p.m. that night.

ANALYSIS

       We address the issues raised by Defendant by first clarifying what this appeal does
not involve and will not address: whether Defendant should have some or all of the
attorney fees and/or administrative fees remitted.

      The precise issues addressed in this opinion are as taken from Defendant’s brief:

             (1)    Does T.C.A. § 40-14-202(e) by its own terms, allow the trial
        court to hold a defendant in contempt for failure to pay attorney’s fees
        assessed by the trial court for the appointment of counsel?

             (2)    In conducting a contempt hearing on the basis of a
        defendant failing to pay attorney’s fees assessed by the trial court for the

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        appointment of counsel, does the defendant have the right to notice of
        the hearing, prior to the hearing being conducted?

       The pertinent statutory language states as follows:

              (e) If the court appoints counsel to represent an accused in a felony
        case under this section or in a misdemeanor case as required by law, but
        finds the accused is financially able to defray a portion or all of the cost
        of the accused’s representation, the court shall enter an order directing
        the party to pay into the registry of the clerk of the court any sum that the
        court determines the accused is able to pay. The sum shall be subject to
        execution as any other judgment and may also be made a condition of a
        discharge from probation. The court may provide for payments to be
        made at intervals, which the court shall establish, and upon terms and
        conditions as are fair and just. The court may also modify its order when
        there has been a change in circumstances of the accused.

T.C.A. § 40-14-202(e) (emphasis added)

       In its brief, the State asserts that the trial court has authority pursuant to T.C.A. §
29-9-102(3) to hold a defendant in contempt of court for having the ability to pay, but
having willfully failed to pay attorney fees assessed pursuant to T.C.A. § 40-14-202(e).
However, the State concedes in its brief that there is reversible error by the trial court in
this case by its failure to provide Defendant with prior notice of contempt allegations
before the hearing, and requests this Court to remand the case for appropriate notice and a
new hearing. At oral argument the State acknowledged that if the attorney fees and costs
imposed pursuant to T.C.A. § 40-14-202(e) is a court cost, then contempt is not an
available remedy to enforce payment by a defendant.

       Specifically as to Defendant’s first issue, we note the particular language of
T.C.A. § 40-14-202(e), highlighted above, that “[t]he sum shall be subject to execution as
any other judgment.” Clearly, this refers to collection by execution as any other money
judgment. “In Tennessee, money judgments are enforceable by execution, garnishment,
and judgment liens. Tenn. Code Ann. § 26-1-103(1980).” Kuykendall v. Wheeler, 890
S.W.2d 785, 786 (Tenn. 1994). Specifically relying upon Kuykendall, the State’s
Attorney General in 2006 opined that, “[m]oney judgments may only be enforced by
execution, garnishment, and judgment liens.” Tenn. Op. Atty. Gen. No. 06-135, 2006
WL 2929088, at *1 (Aug. 21, 2006) (emphasis added). In that opinion, the Tennessee
Attorney General answered the following question among five questions asked:


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               2. Is contempt a statutorily authorized procedure for the collection
        of litigation taxes, court costs, and fines?

      The Attorney General concluded that while failure to pay a fine (which is a form
of punishment) may result in incarceration under certain circumstances, id., 2006 WL
2929088 at *3, “trial courts have no authority to enforce payment of money judgments by
contempt.” Id. at *3.

        An order for a criminal defendant to pay a portion of his legal fees when he/she is
found to be “partially” indigent is not a form of punishment. The legislature provided
that the dollar amount to be paid is subject to “execution as any other judgment and may
also be made a condition of a discharge from probation.” T.C.A. § 40-14-202(e)
(emphasis added). It is noteworthy that the legislature did not also provide that payment
of the attorney fees could also be made a condition of probation, with failure to pay
resulting in revocation of probation.

       Based upon the above authority, we conclude that the trial court does not have
authority to hold a defendant in contempt of court for failure to pay attorney fees or
administrative costs assessed pursuant to T.C.A. § 40-14-202(e). Accordingly, the
judgment of the trial court holding Defendant in contempt is reversed, and the contempt
charges are dismissed.

       In the event of further review, we also conclude that if the trial court did have
authority to use its contempt power to punish for non-payment of fees assessed pursuant
to T.C.A. § 40-14-202(e), the holding of contempt in this case would have to be reversed
for lack of notice to Defendant. When “indirect contempt” is the subject of the
proceedings, prior notice of the contempt allegations and the date, time and place of the
hearing must be given to the defendant, along with enough reasonable time to prepare a
defense. See Tenn. R. Crim. P. 42(b).

      The judgment of the trial court is reversed, and the contempt charges are
dismissed.

                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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