An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-274
                         NORTH CAROLINA COURT OF APPEALS

                               Filed:      7 January 2014


STATE OF NORTH CAROLINA

      v.                                        Durham County
                                                No. 11 CRS 60616
BIBIAN NWANGUMA
     Defendant


      Appeal by defendant from order entered 28 August 2012 by

Judge Abraham P. Jones in Durham County Superior Court. Heard in

the Court of Appeals 12 September 2013.


      Roy Cooper, Attorney General, by Daniel                           P.    O’Brien,
      Assistant Attorney General, for the State.

      Wait Law,         P.L.L.C.,     by     John   L.   Wait,      for      defendant-
      appellant.


      DAVIS, Judge.


      Bibian      Nwanguma     (“Defendant”)        appeals      from     the    trial

court’s    28    August    2012     order    finding     her   in    contempt.       On

appeal, her primary argument is that the trial court erred by

failing     to        comply   with     statutorily        required          procedural

safeguards       in    connection     with    the   contempt        charge.       After

careful review, we reverse the trial court’s order.
                                       -2-




                            Factual Background

       On 23 November 2011, Defendant was charged with misdemeanor

second degree trespass and was found guilty in Durham County

District Court on 14 March 2012.                  On 15 March 2012, Defendant

appealed the conviction to Durham County Superior Court.

       On   27   August   2012,   Defendant’s           case   was   scheduled     for

trial.      Defendant appeared for the morning session of court with

her counsel.        At the conclusion of the morning session, the

trial court directed her to return to court at 2:30 p.m.                           Her

trial    counsel   also   reiterated        to    her   that   she   needed   to   be

present in the courtroom at 2:30 p.m.

       Defendant    proceeded     to   go    to    her    attorney’s     office    to

deliver some photographs but was unable to open the door to the

office.      She then went to the Department of Social Services and

eventually returned to her attorney’s office because she was

unclear about “when she ha[d] to go to court.”                        Her attorney

then attempted to escort her to the courthouse                        by following

Defendant in her car. However, she lost sight of Defendant’s

car.
                                             -3-
       When Defendant finally returned to the courthouse, it was

after    2:30     p.m.        She   discovered          that   court    was      already      in

session and the courtroom door was closed.                             She went to the

clerk’s office to seek guidance and was advised by staff to

return the next day.                Defendant was absent from the courtroom

when    her   case      was   called       that    afternoon,         and   an   order       was

entered for her arrest based on her failure to appear.

       On   the    following        day,    Defendant’s        case     was   called     once

again, and this time Defendant was present in the courtroom.

When asked by the trial court about her absence the previous

day, Defendant’s counsel explained the reason for her failure to

be present.           Defendant’s counsel also informed the court that

Defendant       was     currently      taking       several          medications       for    a

disability        and    expressed     doubt       as    to    her    ability     to    fully

understand the proceedings against her.                        Her attorney moved for

a forensic evaluation and requested that the order for arrest

for failure to appear be stricken.

       The trial court denied the request and entered an order

holding Defendant in contempt of court for                             having failed          to

appear the previous afternoon.                     On 28 August 2012, the court

entered an order requiring Defendant to serve thirty days in

custody and to receive a mental competency evaluation.
                                          -4-
      Defendant      was     determined     to    be    competent,      and    on    27

September 2012,         Defendant was released from custody.                    On 11

December 2012, Defendant filed a notice of appeal from the order

of contempt.       On 19 April 2013, Defendant filed a petition for

writ of certiorari.

                                       Analysis

I. Appellate Jurisdiction

      As an initial matter, we must determine whether we have

jurisdiction to consider Defendant’s appeal based on her failure

to give notice of appeal within fourteen days from the entry of

the contempt order as required by Rule 4(a)(2) of the North

Carolina Rules of Appellate Procedure.                   Defendant acknowledges

that her notice of appeal was untimely but asks that the merits

of   her    appeal      be   considered    pursuant       to    her    petition     for

certiorari.

      When a defendant has not properly given notice of appeal,

this Court is without jurisdiction to hear the appeal.                        State v.

McCoy,     171   N.C.    App.   636,   638,     615    S.E.2d   319,    320,    appeal

dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005).                   While this Court

is unable to hear Defendant’s direct appeal, it does have the

discretion to consider the matter by granting her petition for

writ of certiorari.          Rule 21(a)(1) provides this Court with the
                                           -5-
authority to review the merits of an appeal via the issuance of

a    writ   of   certiorari      even     when       the   appeal    is     filed   in   an

untimely manner.         Anderson v. Hollifield, 345 N.C. 480, 482, 480

S.E.2d 661, 663 (1997).

       Defendant’s petition for writ of certiorari                          demonstrates

that    Defendant       lost    her     right    to    appeal      through    her   trial

counsel’s incorrect calculation of the deadline for her notice

of    appeal.     For     this   reason,        we    elect   to    grant    Defendant’s

petition for writ of certiorari and consider her appeal pursuant

to Rule 21(a).

II. Criminal Contempt

       On appeal, Defendant argues that “the trial court erred by

holding [Defendant] in criminal contempt when: (1) the trial

court failed to follow the requirements for indirect criminal

contempt; and (2) [Defendant’s] alleged conduct did not meet the

requirements for direct criminal contempt.”

       “The standard of review for contempt proceedings is limited

to determining whether there is competent evidence to support

the    findings    of    fact     and    whether       the    findings      support      the

conclusions of law.”             Watson v. Watson, 187 N.C. App. 55, 64,

652 S.E.2d 310, 317 (2007).              “Findings of fact made by the judge

in contempt proceedings are conclusive on appeal when supported
                                         -6-
by   any   competent     evidence       and    are   reviewable     only   for    the

purpose     of     passing    upon     their    sufficiency    to    warrant      the

judgment.”         Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393

S.E.2d 570, 573 (1990), aff’d per curiam, 328 N.C. 729, 403

S.E.2d 307 (1991).

      We    must    first    determine       whether    Defendant    was   held    in

direct criminal contempt or indirect criminal contempt.                      Direct

contempt exists when the act giving rise to the contempt charge

is “(1) committed within the sight or hearing of a presiding

judicial official; and (2) [i]s committed in, or in immediate

proximity to, the room where proceedings are being held before

the court; and (3) [i]s likely to interrupt or interfere with

matters then before the court.”                  N.C. Gen. Stat. § 5A–13(a)

(2011).      Any criminal contempt “that is not direct criminal

contempt is indirect criminal contempt . . . .”                   N.C. Gen. Stat.

§5A-13(b)(2011).        Accordingly,           “[i]ndirect contempt . . . is

that which arises from matters not occurring in or near the

presence of the court, but which tend to obstruct or defeat the

administration of justice.”              Atassi v. Atassi, 122 N.C. App.

356, 361, 470 S.E.2d 59, 62 (1996).

      A    key   distinction     between       direct   criminal    contempt      and

indirect     criminal       contempt    is     procedural.     Direct      criminal
                                  -7-
contempt may be punished summarily because the behavior occurs

within the sight of the judicial officer.        State v. Simon, 185

N.C. App. 247, 251, 648 S.E.2d 853, 855 (2007).              This is so

because the judge personally witnessed the contemptuous acts and

needs no other testimony or other evidence to determine what

occurred.     However,   “indirect   criminal   contempt     .    .     .    is

punishable    only   after   proceedings   in   accordance       with       the

procedure required by [N.C. Gen. Stat. § ] 5A–15.”               N.C. Gen.

Stat. § 5A–13(b) (2011).

    Here, the trial court made the following oral findings in

connection with its decision to hold Defendant in contempt:

            This defendant was due to be in court
            yesterday at 2:30 and failed to show up,
            gave no explanation to the Court nor to her
            attorney, and that is a failure to appear.
            It's not only failure to appear in terms of
            the hearing simply to schedule matters, but
            for trial.

            Not only a failure to appear for trial, but
            a failure to appear trial [sic] after having
            been here in court speaking to go her [sic]
            directly and she even knew or should have
            known she was to be here at 2:30. And she
            wasn't and the Court can't tolerate that
            type of behavior from any individual because
            it puts it at the disposal of individual
            whims and vicissitudes and not able to
            expect a person to behave as everyone else
            has to behave when under the premature [sic]
            of the Court.

            . . .
                                          -8-


               Ergo, I am going to find her in contempt of
               Court and lock her up for 30 days and order
               during that 30 days that she be allowed to
               get to be evaluated by the people who do the
               evaluations at Butner or Dix. I guess Butner
               now.

       Based    on    the    record    before    us,    we   do    not   believe    the

necessary elements required for a finding of direct criminal

contempt were met.            Defendant’s failure to appear at the time

specified by the trial court obviously was not an overt act that

occurred in the trial court’s presence. Indeed, the very reason

she was held in contempt was her absence from the courtroom at

the relevant time period.

       We find instructive our decision in Cox v. Cox, 92 N.C.

App. 702, 376 S.E.2d 13 (1989).                 In Cox, the trial court held

the defendant in contempt for failing to appear at a hearing

concerning alimony payments.              In its contempt order, the trial

court   did     not    indicate       whether   the     contempt    was    direct    or

indirect.       This Court held that because the trial judge did not

have    any     direct      knowledge    of     facts    establishing       that    the

defendant’s       failure       to     appear     was     willful,        the   proper

classification was indirect criminal contempt.                     Id. at 707, 376

S.E.2d at 17.
                                       -9-
    Here, as in Cox, Defendant was held in contempt for failing

to appear in court as ordered.            Because Defendant’s conduct did

not constitute direct contempt, we believe that her failure to

appear   as   ordered     on    27    August     2012    constituted        indirect

criminal contempt.

    Having    determined       that    Defendant        was   held    in    indirect

criminal contempt, we now turn to the question of whether the

appropriate   procedural       safeguards      were     followed     by    the   trial

court.    Indirect      criminal      contempt    may    be   punished      only   in

accordance with the procedure set out by statute.

          G.S. sec. 5A-13(b) provides that “[a]ny
          criminal contempt other than direct criminal
          contempt is indirect criminal contempt and
          is punishable only after proceedings in
          accordance with the procedure required by
          G.S. 5A-15.” G.S. sec. 5A-15 provides for a
          plenary hearing for indirect contempt . . .
          and establishes, inter alia, requirements of
          notice and a hearing. If a defendant is
          found guilty of contempt, the judge must
          make findings of fact beyond a reasonable
          doubt in support of the verdict. G.S. sec.
          5A-15(f).

Id. at 706, 376 S.E.2d at 16.             As a part of this process, the

trial court must issue an order to the contemnor to show cause

why a finding of contempt is not warranted and the order must

give adequate notice of the acts considered to be contemptuous.
                               -10-
O'Briant v. O'Briant, 313 N.C. 432, 436, 329 S.E.2d 370, 373

(1985).

    Here, the record shows that Defendant never received the

statutorily required hearing or an order requiring her to show

cause why she should not be held in contempt.     In its comments

from the bench, the trial court explained why it believed it

could hold Defendant in contempt without following the procedure

mandated by N.C. Gen. Stat. §15A-15:

          I don’t think I   have to because she was here
          and I told her    to come back. She was here
          like everybody     else. To me that is a
          violation of a    Court order in the Court’s
          presence as far    as I am concerned. She was
          here.

          . . .

          She got this because I told her and she just
          didn’t come back. And furthermore, I know
          she was in the courthouse because I saw her
          in the courthouse before 2:30 walking around
          talking to herself. And I didn’t know what
          to make of it, but I couldn’t say anything
          to her.

          . . .

          So I think I am doing her a favor really.
          Not favor. I think I am doing what any - –
          any - – any judicious judge would do under
          these circumstances. I can’t have people
          coming in my court and I give them a direct
          order and they just simply don’t do it and
          then they get -- then I give more orders
          that we are going to do this, we are going
          to did [sic] the other, and I don’t have any
                                    -11-
            confidence it’s going to             happen   at   all
            unless we have her body.

            And so I am going to get it. We do have her
            body. When they set up the evaluation at
            Butner they will be able to come get her,
            transport her, be evaluated, and then the
            docs would know this kind of business, will
            be able to tell me if there is some problem.
            If there is no problem then we will release,
            go for October 22nd, and that’s where we
            are.

    These    statements      demonstrate   the    trial   court’s    mistaken

belief   that   no   procedural    safeguards      were   required    because

Defendant’s acts gave rise to direct – rather than indirect –

criminal contempt.         As set out above, this was not the case.

Therefore, the contempt order cannot be sustained.              See Cox, 92

N.C. App. at 707, 376 S.E.2d at 17 (vacating indirect criminal

contempt order where trial court failed to follow procedures set

out in N.C. Gen. Stat. §5A-13 and §5A-15).

    Defendant also argues that the contempt order was invalid

on the additional ground that the trial court failed to make the

requisite findings of fact.       We agree.

    This    Court    has   held   that   for   purposes   of   an    order   of

contempt, a trial judge must “make findings of fact beyond a

reasonable doubt, and enter a written order.”             State v. Coleman,

188 N.C. App. 144, 148, 655 S.E.2d 450, 452-53 (2008) (citing

N.C. Gen. Stat. § 5A-15(f) (2005) (emphasis added)).                 Moreover,
                                                  -12-
an   order      for    contempt      is      fatally       defective    when   it   is   not

supported       by    a    finding      of    fact       that   defendant’s    failure    to

comply with the court order was willful.                             See Smith v. Smith,

247 N.C. 223, 225, 100 S.E.2d 370, 371-372 (1957) (holding that

in contempt proceedings it is “necessary for the court to find

the facts supporting the judgment and especially the facts as to

the purpose and object of the contemnor, since nothing short of

‘willful disobedience’ will justify punishment”).                              Willfulness

in this context means an act “done deliberately and purposefully

in violation of law, and without authority, justification, or

excuse.”        State v. Chriscoe, 85 N.C. App. 155, 158, 354 S.E.2d

289, 291 (1987).

       Moreover,          N.C.   Gen.     Stat.      §    5A-15(f)    requires   that    the

court’s findings be “beyond a reasonable doubt.”                               “Failure to

make     such    an       indication         is     fatally     deficient,     unless    the

proceeding is of a limited instance where there were no factual

determinations for the court to make.”                          State v. Ford, 164 N.C.

App. 566, 571, 596 S.E.2d 846, 850 (2004).

       Here, the trial court made oral findings of fact — without

reducing them to writing — and then entered judgment on a form

issued     by    the       Administrative           Office      of   the   Courts   simply

stating, in pertinent part, as follows:                              “Defendant found in
                                         -13-
contempt      of   court   and   taken    into   custody,       Defendant    was   to

return to court on August 27, 2012 at 2:30 P.M. and failed to do

so.”    To the extent these statements can be deemed findings of

fact, they are insufficient under N.C. Gen. Stat. §5A-15(f).

       For all of the reasons set out herein, we conclude that the

trial court failed to follow the mandatory statutory procedures

applicable to indirect criminal contempt orders.                     Accordingly,

the trial court’s order must be reversed.                   See In re Contempt

Proceedings Against Cogdell, 183 N.C. App. 286, 289, 644 S.E.2d

261,    263   (2007)   (reversing     trial      court    order   without    remand

where    trial     court   failed   to    indicate       that   reasonable    doubt

standard was used in criminal contempt proceeding).

                                    Conclusion

       For the reasons stated above, we reverse the trial court’s

contempt order.

       REVERSED.

       Judges HUNTER, JR. and ERVIN concur.

       Report per Rule 30(e).
