An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1625


Filed: 15 July 2003


         v.                        Johnston County
                                Nos.    01 CRS 53901
RICHARD DARNELL JAMES                    02 CRS 7943-45

    Appeal by defendant from judgments entered 2 August 2002 by Judge James R. Vosburgh in Johnston County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Roy Cooper, Attorney General, by LaShawn L. Strange, Assistant Attorney General, for the State.

    John T. Hall for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Richard Darnell James, appeals three judgments finding him in criminal contempt. For the reasons discussed herein, we vacate the judgments.
    On 31 July 2002, the superior court held a hearing on a violation report filed by defendant's probation officer. After hearing the evidence, the court revoked defendant's probation and activated his suspended sentence for the offense of taking indecent liberties with a minor. While replying to a question from the trial judge, defendant unleashed a string of obscenities.
    Two days later, on 2 August 2002, the judge who had presided at the revocation hearing returned defendant to court and engagedhim in the following colloquy:
        THE COURT: Mr. James, do you know why I have sent for you to come back to the courtroom?

        DEFENDANT: I have a pretty good idea.

        THE COURT: Well, based upon the language that you directed towards the Court as you were preparing to leave the courtroom the other day after I had revoked your probation judgment, I'm going to find you in direct criminal contempt of court and give you three consecutive 30-day sentences for contempt of court, order that they be served consecutive to each other, and order they be served consecutive with the probation judgment that I revoked. . . .

        . . .

        I cannot let conduct like that go by, that kind of disrespect being shown to the Court. I cannot permit you to lower the dignity of the Court.

The trial court accepted defendant's apology for his outburst but entered three judgments of criminal contempt imposing consecutive thirty-day prison terms.
    Defendant now claims that the trial court erred in finding him in direct criminal contempt of court without notice and an opportunity to be heard as required by N.C. Gen. Stat. § 5A-15(a). He further avers that the court failed to support its judgments with written findings as required by N.C. Gen. Stat. § 5A-15(f), and exceeded the maximum thirty-day sentence prescribed for criminal contempt by N.C. Gen. Stat. § 5A-12(a).
    The State concedes that having deferred the contempt proceedings against defendant, the trial court was obliged to furnish him with notice and an opportunity to be heard. While westrongly condemn defendant's conduct at the 31 July 2002 revocation hearing, we agree. Under N.C. Gen. Stat. § 5A-15(a):
        When a judicial official chooses not to proceed summarily against a person charged with direct criminal contempt or when he may not proceed summarily, he may proceed by an order directing the person to appear before a judge at a reasonable time specified in the order and show cause why he should not be held in contempt of court. A copy of the order must be furnished to the person charged. If the criminal contempt is based upon acts before a judge which so involve him that his objectivity may reasonably be questioned, the order must be returned before a different judge.

Defendant was entitled to notice of the 2 August 2002 plenary proceeding. See O'Briant v. O'Briant, 313 N.C. 432, 436, 329 S.E.2d 370, 373 (1985). The record contains no show cause order or other evidence of notice to defendant of the specific charges against him, as required by statute. “Having found the notice to be inadequate, we find it unnecessary to determine whether there was sufficient evidence to support the contempt adjudications at issue.” Id. at 441, 329 S.E.2d at 376. Accordingly, we vacate the judgments of criminal contempt entered by the trial court.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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