STATE OF NORTH CAROLINA
v. Caldwell County
No. 05 CRS 5179
MILTON TYRONE SCOTT,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Winifred H. Dillon, for defendant-appellant.
HUDSON, Judge.
Defendant appeals from a judgment finding him in criminal
contempt of court and sentencing him to thirty days of
imprisonment. Because the trial court failed to provide defendant
with summary notice and an opportunity to be heard as required by
N.C. Gen. Stat. § 5A-14(b) (2006), we reverse.
On 7 November 2000, defendant pled guilty to three counts of
common-law robbery, admitted his habitual felon status as to the
robbery charged in 00 CRS 4488, and stipulated to a prior record
level of VI. His written plea agreement provided that he would
receive a consolidated prison sentence of 26 to 32 months for two
of the robbery counts, and would be sentenced as an habitual felon
for the robbery in 00 CRS 4488 to a term of 150 to 189 months, “torun at [the] expiration of any other sentences.” An additional
provision of the agreement, which was separately initialed by
defendant and his counsel, stated as follows: “All sentences to
run consecutive to each other [and] to any sentences Mr. Scott [is]
now serving.” The trial court entered judgments in accordance with
defendant's plea agreement, sentencing him to active prison terms
of 26 to 32 months and 150 to 189 months, and ordering that the
sentences be served consecutive to each other and “at the
expiration of all sentences which the defendant is presently
obligated to serve.”
On 29 July 2004, defendant filed a motion for appropriate
relief based on several claims, including ineffective assistance of
counsel. Defendant asserts that counsel failed to conduct an
adequate investigation of his case, coerced his guilty plea with
threats of an all-white jury if he went to trial, advised him that
he would receive concurrent sentences under his plea, and refused
his request to withdraw his guilty plea in open court. By orders
entered 14 September 2004 and 24 February 2005, the trial court
summarily dismissed several claims raised in the motion for
appropriate relief but found that defendant was entitled to an
evidentiary hearing on the ineffective assistance of counsel
claims.
At the evidentiary hearing on 1 August 2005, after receiving
testimony from defendant, his mother, his appointed counsel, and
counsel's law partner, the trial court denied defendant's motion
for appropriate relief. In findings announced in open court andsubsequently reduced to writing in an order entered 24 August 2005,
the judge determined that defendant's guilty plea “was the informed
choice of the defendant and was made voluntarily and
understand[ing]ly,” that defendant knew the difference between
concurrent and consecutive sentences at the time of his plea
hearing, “that at no time did the defendant indicate that he wished
to withdraw any plea or to have a jury trial,” and that his
counsel's performance “was not deficient in any way[.]” In
addition to denying the motion for appropriate relief, the judge
announced that he was finding defendant in criminal contempt of
court, as follows:
The Court will further find that this
defendant's filing of this MAR motion borders
on contempt in that this is an interference of
the lawful process by having made false
statements under oath. That there was no
basis for the filing of . . . this MAR . . .,
and it's cost taxpayers of this state money
and time and court resources to respond to a
frivolous MAR in which this defendant has made
false statements resulting in substantial
interference of the court's processes by
taking up court time and resources. And
[this] Court finds him to be in criminal
contempt and will for reasons set forth . . .
in the defendant's presence . . . attach a
thirty-day sentence to run at the expiration
of any sentence he may be presently serving[.]
Defendant argues, and the State agrees, that the trial court
erred by finding defendant in criminal contempt without affording
him at least “summary notice of the charges and a summary
opportunity to respond” as required by N.C. Gen. Stat. § 5A-14(b).
We agree. As quoted above, the trial court found defendant in
contempt for filing a frivolous motion for appropriate reliefand/or for making false statements under oath at the evidentiary
hearing on the motion. A finding of indirect criminal contempt,
which would punish actions committed outside of the court's
presence, would require a plenary hearing upon notice to defendant,
as provided by N.C. Gen. Stat. § 5A-15 (2006). See, e.g., Cox v.
Cox, 92 N.C. App. 702, 706, 376 S.E.2d 13, 16 (1989). Even
assuming that the court held defendant in direct criminal contempt
for giving false testimony in the court's presence, the applicable
statute provides for summary contempt proceedings, as follows:
(a) The presiding judicial official may
summarily impose measures in response to
direct criminal contempt when necessary to
restore order or maintain the dignity and
authority of the court and when the measures
are imposed substantially contemporaneously
with the contempt.
(b) Before imposing measures under this
section, the judicial official must give the
person charged with contempt summary notice of
the charges and a summary opportunity to
respond and must find facts supporting the
summary imposition of measures in response to
contempt. The facts must be established beyond
a reasonable doubt.
N.C. Gen. Stat. § 5A-14 (emphasis added). Moreover, subject to two
exceptions not at issue here, a court may not sentence a contemnor
to prison unless the comtemptuous “act or omission was preceded by
a clear warning by the court that the conduct is improper.” N.C.
Gen. Stat. § 5A-12(b)(2) (2006).
Because defendant was not given summary notice and an
opportunity to respond before being found in criminal contempt of
court, we must reverse the trial court's judgment. See Peaches v.
Payne, 139 N.C. App. 580, 586-87, 533 S.E.2d 851, 854-55 (2000)(citing State v. Verbal, 41 N.C. App. 306, 307, 254 S.E.2d 794, 795
(1979)). In light of our holding on this issue, we need not
address defendant's remaining assignments of error.
Reversed.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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