JUSTIN DECKER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 6, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
NO.
NO.
2001-CA-002072-MR
AND
2001-CA-002073-MR
AND
2001-CA-002074-MR
AND
2001-CA-002075-MR
JUSTIN DECKER
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NOS. 98-CR-00062, 99-CR-00022,
99-CR-00023, and 00-CR-00106
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, KNOPF, JUDGES.
KNOPF, JUDGE:
Justin Decker appeals from an order of the Hart
Circuit Court holding him in contempt of court for violating his
work-release order by bleaching his hair, mustache, and eyebrows
while on work-release, thereby engaging in conduct not authorized
by the order granting work-release.
Decker contends that there
was insufficient evidence to support the trial court’s finding of
criminal contempt in that there was no evidence that he had
violated any term or condition of his work-release order.
In May 19, 1998, in circuit court case 98-CR-00062,
Decker was indicted for first-degree criminal mischief, firstdegree wanton endangerment, and first-degree complicity to wanton
endangerment.
In February 1999, in circuit court case 99-CR-
00022, Decker was indicted for receiving stolen property and
complicity to receiving stolen property.
Also in February 1999,
in circuit court case 99-CR-00023, Decker was indicted for firstdegree trafficking in a controlled substance, first-degree
possession of a controlled substance, leaving the scene of an
accident, operating a motor vehicle while license suspended, and
attempting to elude.
On July 9, 1999, Decker entered a plea agreement
resolving the foregoing indictments.
Pursuant to the plea
agreement, after consideration of concurrent sentencing, Decker
was sentenced to a total of five years to serve, with the final
one and one-half years of the sentence being probated for a
period of five-years, conditioned upon the payment of
restitution.
In September 2000, in circuit court case 00-CR-00106,
Decker was indicted for second-degree escape and second-degree
persistent felony offender.
The charges resulted from the
allegation that on June 29, 2000, Decker left the work-site while
on work-release.
Pursuant to a
plea agreement, Decker
subsequently pled guilty to third-degree escape and was sentenced
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to twelve months imprisonment to be served concurrently with his
pervious sentence.
Despite his previous escape attempt while on workrelease, on June 19, 2001, the trial court entered an order again
granting Decker work-release.
Decker’s employer was to be a
business owned by his father, Steve Decker Roofing.
On July 3, 2001, while on work-release, Decker bleached
his hair, moustache, and eyebrows, significantly changing his
appearance.
Prior to bleaching, Decker’s hair had been brown.
Upon his return to jail that evening, Decker’s change of
appearance was logged and an incident report form was filed.
The
report form noted that the incident was being logged and reported
because “it may be a violation of [Decker’s] court-order [sic]
work release since he is supposed to be working and not having
make-overs.”
The incident report was referred to the trial court,
and on July 5, 2001, Decker’s work-release privileges were
terminated.
On July 12, 2001, the trial court entered an order
directing Decker to show cause why he should not be held in
contempt for violation of the previously entered work-release
order.
The caption of the order listed circuit court cases 98-
CR-00062, 99-CR-00023, 99-CR-00022, and 00-CR-00106, and a copy
of the order was filed in all four cases.
was held on August 21, 2001.
The show-cause hearing
On August 28, 2001, the trial court
entered an order holding Decker in contempt of court for
violating his work-release order and ordering him to serve 179
days in each of the four circuit court cases, to run
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concurrently.
Notices of appeal were subsequently filed in each
of the four circuit court cases, resulting in these four appeals.
Decker contends that there was insufficient evidence to
support the trial court’s finding of criminal contempt on the
basis that there was no evidence presented that he had violated
any term or condition of his work release order.
We disagree.
The power to punish for contempt is inherent in every
court.1
Any court or judge may punish any person guilty of
contempt for disobeying a judicial order entered under the
authority of the Court.2
Contempt is “the willful disobedience toward, or open
disrespect for, the rules or orders of a court.
either civil or criminal.’”3
‘Contempts are
The purpose of civil contempt is to
coerce the contemnor into conforming his behavior in accordance
with the court's commandment.
The familiar phrase defining the
characteristic of civil contempt is that those so charged “carry
the key of their prison in their own pockets.”4
Alternatively, some contempts are deemed criminal and
are punished accordingly.
The act of disobedience consists of
1
Newsome v. Commonwealth, Ky. App., 35 S.W.3d 836, 839 (2001) (citing Arnett v.
Meade, Ky., 462 S.W.2d 940, 947 (1971); Underhill v. Murphy, Ky., 117 Ky. 640, 78 S.W. 482,
484 (1904); and Vuitton Et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 779 (9th
Cir.1981)).
2
Id. (citing Kentucky Revised Statute (KRS) 432.280).
3
Commonwealth v. Burge, Ky., 947 S.W.2d 805, 808 (1996) (quoting Gordon v.
Commonwealth, 141 Ky. 461, 133 S.W. 206, 208 (1911)).
4
Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622, 626 (1966)
(citation omitted); Blakeman v. Schneider, Ky., 864 S.W.2d 903, 906 (1993).
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doing something which the court has prohibited.5
“[C]riminal
contempts are all acts in disrespect of the court or its process
which obstruct the administration of justice, or tend to bring
the court into disrepute.”6
The court seeks to punish conduct
which has already occurred rather than to compel a course of
action. It is the purpose of the punishment (rather than the fact
of punishment per se) that distinguishes civil from criminal
contempt.7
Criminal contempt can take one of two forms; that is,
either direct or indirect.
Direct contempt is committed in the
actual presence of the court, insulting the court's decorum and
proceedings.
This form of contempt can be punished summarily
absent any need for fact-finding proceedings as all elements of
the offense are within the personal knowledge of the court.8
Indirect contempt occurs outside the court and requires that a
hearing be had on all elements of the offense to establish
whether the court's order has been violated.
Its punishment
requires proceedings which satisfy due process.9
The order appealed from found Decker to be in criminal
contempt as it was clearly intended to punish rather than coerce.
5
Blakeman, 864 S.W.2d at 906.
6
Levisa Stone Corp. V. Hays, Ky., 429 S.W.2d at 414 (1966) (quoting Jones v.
Commonwealth, 308 Ky. 233, 213 S.W.2d 983, 985 (1948)).
7
Blakeman, supra.
8
Burge at 808.
9
Id.
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Further, since the contempt occurred outside of court, the
conduct was indirect contempt.
The crime of criminal contempt contains three essential
elements: (1) there must be a violation; (2) of a clear,
unambiguous, and reasonably specific order of the court; and (3)
the violation must have been willful.10
The evidence necessary
for a finding of contempt must show willful disobedience toward,
or open disrespect for, the rule or orders of a court.11
To be
punished for criminal contempt, it is necessary to prove that the
defendant had knowledge of a valid order that prohibited the
conduct in question and that he intentionally violated it.12
When contempt is criminal in nature, it is necessary for all
elements of the contempt to be proven beyond a reasonable
doubt.13
We are persuaded that the evidence supports, beyond a
reasonable doubt, the trial court’s holding of Decker in criminal
contempt of court.
The June 19, 2001, work-release order contained a
provision which clearly, unambiguously, and with reasonable
specificity, proscribed the conduct for which Decker was held in
contempt.
Paragraph three of the order provided as follows:
[T]he Defendant shall be in the Hart County
Jail at all times when not at work or en
route to and from work, with the Defendant
10
U.S. v. Heavrin, 144 F.Supp.2d 769, 782 (W.D.Ky. 2001).
11
Commonwealth v. Pace, Ky. App., 15 S.W.3d 393, 396 (2000).
12
Butts v. Commonwealth, Ky., 953 S.W.2d 943, 944 (1997).
13
Pace at 396 (citing Brannon v. Commonwealth, 162 Ky. 350, 172 S.W. 703 (1915)).
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being furloughed from the jail for work
between the hours of 6:00 a.m. to 6:00 p.m.
Mon - Friday.
The work-release order thus provided for three
possibilities: (1) that Decker be at work; (2) that Decker be en
route to or from work; or (3) that Decker be in the Hart County
Jail.
Further, the order provided that “the Defendant’s work
release privileges be and they are hereby restricted to” Steve
Decker Roofing.
Steve Decker is Justin Decker’s father, and
Decker’s work release employment was roofing.
Beyond a reasonable doubt, when Decker was bleaching
his hair, mustache, and eyebrows, he was not working, en route to
or from work, or in the Hart County Jail.
It follows that,
beyond a reasonable doubt, Decker violated the order.
persuaded that the nature of the violation —
We are
the appellant’s
bleaching of his hair so as to significantly alter his appearance
— is circumstantial evidence sufficient to support a finding,
beyond a reasonable doubt, of willful disobedience toward, or
open disrespect for, the trial court’s work-release order.
Accordingly, all of the necessary elements to support a finding
of criminal contempt are met.
Decker argues that the evidence was insufficient
because he bleached his hair at his father’s home, which also
serves as the roofing business office and which was listed on the
work-release order as the employer’s address.
Decker alleges
that he bleached his hair while he waited for his father to make
business calls and for the other roofers to arrive, “during a
period when he and his supervisor were required to ‘wait’ as a
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matter of business necessity, and applying bleach to his
relatively short hair and beard, [was] a process surely not
taking longer than an ordinary restroom break.”
Decker equates
his conduct to smoking a cigarette, having a cup of coffee,
watching television, or reading the paper during an
inconsequential period of idleness at the job site.
Decker’s conduct was of significantly greater
consequence than merely killing time during a period of down-time
idleness by, for example, reading the newspaper.
It is doubtful
that if one of the other workers had arrived early, businessowner Steve Decker would have approved of the employee going into
the office bathroom and bleaching his hair.
Similarly, if Decker
had been employed by another roofer rather than his father, it is
doubtful that his supervisor, during a period of down-time, would
have condoned Decker entering the office bathroom and bleaching
his hair.
Further, the hair bleaching, according to the deputy
jailer’s testimony, completely altered Decker’s appearance and
would not have been permitted on the jail premises.
We are not persuaded that the trial court erred or
abused its discretion.
Decker’s conduct could reasonably be
thought to have demonstrated disrespect for the trial court’s
order granting Decker the significant privilege of work-release.
It was thus lawful for the trial court to hold Decker in
contempt, both to punish him for disrespecting the work-release
order, and to communicate a message to other work-release
prisoners that engaging in conduct outside the terms of workrelease will result in disciplinary action by the court.
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For the foregoing reasons the judgment of the Hart
Circuit Court is affirmed.
COMBS, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS WITH RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brenn O. Combs
Reinhardt, Morgan & Isaacs
Lexington, Kentucky
Albert B. Chandler
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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