Faulkner v. Pegram

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[Cite as Faulkner v. Pegram, 2010-Ohio-6614.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT SHANUNA FAULKNER Plaintiff-Appellee -vsDARNELL PEGRAM Defendant-Appellant : : : : : : : : : JUDGES: Hon. Julie A. Edwards, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. Case No. 2010CA00022 OPINION CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2009JCV00441 JUDGMENT: REVERSED AND REMANDED DATE OF JUDGMENT ENTRY: December 30, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant NIKKI L. REED Child Support Enforcement Agency P. O. Box 21337 Canton, OH 44702 KIMBERLY STOUT Public Defender 200 Tuscarawas Street W. Suite 200 Canton, OH 44702 Stark County, Case No. 2010CA00022 2 Delaney, J. {¶1} Defendant-Appellant Darnell Pegram appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, to sentence Appellant to 30 days in jail for contempt. STATEMENT OF THE FACTS AND THE CASE {¶2} Plaintiff-Appellee, Shanuna Faulkner, through the Stark County Child Support Enforcement Agency, filed a Motion for Orders to Show Cause with the Stark County Court of Common Pleas, Juvenile Division, on April 9, 2009. The motion requested that Appellant appear before the court and show cause as to why he should not be held in contempt for his failure to pay his obligated child support to Appellee. {¶3} The matter was set for a show cause hearing before the magistrate on November 6, 2009. On November 6, 2009, Appellant appeared at the hearing with counsel. Appellant stipulated to a finding of contempt for his failure to pay child support. At the time of his stipulation, Appellant was in arrears for $1,586.60 for his failure to pay his $50 per month child support obligation. The magistrate accepted Appellant s stipulation, found Appellant in contempt, and imposed a 30-day jail sentence. (Nov. 6, 2009 Hrg., 7). The magistrate told Appellant that she was not imposing the sentence, but the matter would be set for an imposition hearing before the assigned trial court judge on January 4, 2010, so that the judge could review the case. (Nov. 6, 2009 Hrg., 7-8). The magistrate informed Appellant that if Appellant failed to appear at the hearing, a warrant would be issued for his arrest. (Nov. 6, 2009 Hrg., 8). The Magistrate s Order filed on November 10, 2009, stated in the disposition that, Defendant is sentenced to 30 days in the Stark County Jail. Defendant is ordered to appear for imposition hearing Stark County, Case No. 2010CA00022 3 at 1-4-2010 at 9:20 a.m. Defendant shall appear at this date and time or a warrant for his arrest will issue. The magistrate signed the judgment entry and the Order is stamped as assigned to the trial court judge. {¶4} The matter came before the trial court judge on January 4, 2010. Appellant s counsel was at the hearing, but Appellant failed to appear. The trial court thereupon issued a warrant for Appellant s arrest. (Jan. 4, 2010 Hrg., 5). The trial court further ordered that upon Appellant s arrest, Appellant was to be taken to jail and serve the 30-day sentence without further hearing. Id. {¶5} On January 12, 2010, Appellant voluntarily turned himself in. On January 13, 2010, the parties filed an Agreed Judgment Entry that stated Appellant had brought himself into substantial compliance and he was to be released from jail. The judgment entry further stated that the remainder of his 28-day sentence was deferred until June 1, 2010. {¶6} On February 3, 2010, Appellant filed his Notice of Appeal of the January 4, 2010 judgment entry. {¶7} Appellant raises one Assignment of Error: {¶8} I. THE TRIAL COURT VIOLATED DEFENDANT-APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT SENTENCED DEFENDANT- APPELLANT TO 30 DAYS IN THE STARK COUNTY JAIL WITHOUT THE DEFENDANT-APPELLANT PRESENT." Stark County, Case No. 2010CA00022 4 I. {¶9} The issue in this appeal is not whether Appellant was guilty of contempt for his failure to pay child support. Appellant does not argue the trial court s finding that Appellant was in contempt was against the manifest weight of the evidence. Nor does Appellant appeal the imposition of a 30-day jail sentence by the magistrate. Appellant did not file objections to the November 6, 2009 Magistrate s Decision. Rather, Appellant appeals the trial court s imposition of the sentence without Appellant being present at the January 4, 2010 hearing. {¶10} Contempt has been defined as the disregard for judicial authority. State v. Flinn (1982) 7 Ohio App.3d 294, 455 N.E.2d 691. Indirect contempt occurs when a party engages in conduct outside the presence of the court that demonstrates a lack of respect for the court or its lawful orders. Bierce v. Howell, Delaware App. No. 06CAF050032, 2007-Ohio-3050, ¶ 16. A contempt finding may be civil or criminal in nature. In Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610, the Supreme Court of Ohio discussed the distinction between civil and criminal contempt as follows: {¶11} While both types of contempt contain an element of punishment, courts distinguish criminal and civil contempt not on the basis of punishment, but rather, by the character and purpose of the punishment. * * * Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket * * * since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence. Such imprisonment operates not as Stark County, Case No. 2010CA00022 5 a remedy coercive in its nature but as punishment for the completed act of disobedience, and to vindicate the authority of the law and the court. * * * (Citations omitted.) Anderson v. Cameron, Stark App. No. 2008CA00042, 2009-Ohio-601, ¶13-14 citing Graber v. Siglock, Stark App. No.2000CA00176, 2002-Ohio-6177. {¶12} Our standard of review regarding a finding of contempt is limited to a determination of whether the trial court abused its discretion. Hagan v. Hagan, Stark App. No. 2009CA00148, 2010-Ohio-540, ¶12 citing In re Mittas (Aug. 6, 1994), Stark App. No. 1994CA00053. However, our review of this case does not involve whether the trial court abused its discretion in finding Appellant in contempt because Appellant stipulated to that finding. The nature of Appellant s contempt, however, is still relevant to our analysis. {¶13} In the present case, the Magistrate s Order did not state that it recommended a sentence, but rather stated it sentenced Appellant to 30 days in jail for contempt. The magistrate set the matter for an imposition hearing before the trial court judge, but the magistrate did not set forth any purge conditions in the Order for which Appellant could comply with before the imposition hearing. The trial court judge did not sign the Magistrate s Order, but it is stamped that it is assigned to the trial court judge. On January 4, 2010, the matter came before the trial court judge for the imposition hearing. Upon Appellant s failure to appear at that hearing, the trial court did not specifically find Appellant in contempt in its judgment entry, but ordered that Appellant immediately begin to serve 30 days in jail upon his arrest for his failure to appear. The trial court did not impose any purge conditions within its judgment entry. Stark County, Case No. 2010CA00022 6 {¶14} We find that on January 4, 2010, the trial court made a finding of contempt as to Appellant in the nature of indirect criminal contempt. The trial court sentenced Appellant to an unconditional prison sentence of 30 days in jail without any statement of conditions that would allow Appellant release if he complied with those conditions. {¶15} As noted by the Ohio Supreme Court, [t]he most important consequences arising from this classification of contempt [as either civil or criminal] is that many of the significant constitutional safeguards required in criminal trials are also present in criminal contempt proceedings. Brown, 64 Ohio St.2d at 252, 416 N.E.2d 610. Perhaps the most significant of these rights is the contemnor's right to due process. Winkler v. Winkler (1991), 81 Ohio App.3d 199, 202, 610 N.E.2d 1022. The right to due process encompasses the right of the accused to be advised of the charges against him, to have a reasonable opportunity to meet the charges by way of explanation or defense, and the opportunity to call other witnesses on his behalf. See, In re Yeauger (1992), 83 Ohio App.3d 493, 497, 615 N.E.2d 289. {¶16} Appellant argues that he was denied his due process rights when the trial court went forward with the hearing and ordered that upon Appellant s arrest for his failure to appear, Appellant was to begin serving 30 days in jail without further hearing. Because we find the nature of the contempt in this case to be criminal, we agree that under the facts of this case, the trial court erred in sentencing Appellant to jail when Appellant was not present at the hearing. {¶17} Appellant s Assignment of Error is sustained. Stark County, Case No. 2010CA00022 7 {¶18} The judgment of the Stark County Court of Common Pleas, Juvenile Division, is reversed and the matter remanded for further proceedings consistent with this Opinion. By Delaney, J. Edwards, P.J., concurs separately Hoffman, J. concurs separately HON. PATRICIA A. DELANEY HON. JULIE A. EDWARDS HON. WILLIAM B. HOFFMAN Stark County, Case No. 2010CA00022 8 EDWARDS, P.J., CONCURRING OPINION {¶19} I concur with the majority as to the analysis and disposition of this case. {¶20} I write separately only to point out that the Magistrate s report, issued on November 6, 2009, and filed on November 10, 2009, is designated by the Magistrate as an order. But, the only portion of that report that should have been designated as an order is the order for Darnell Pegram to appear before the court (the Judge) for an imposition of sentence hearing. Pursuant to Juv. R. 40(D)(2)(a)(i), ¦ a magistrate may enter orders without judicial approval if necessary to regulate the proceedings and if not dispositive of a claim or defense of a party. (Emphasis added). {¶21} Therefore, I find that the order of the Magistrate to sentence Darnell Pegram to jail was invalid because the Magistrate lacked the authority to issue such an order. {¶22} Therefore, the hearing set in front of the Judge on January 4, 2010, was a sentencing hearing and Darnell Pegram was entitled to be present for sentencing and should have been brought before the court for that purpose, if he did not appear voluntarily, and should now receive a new sentencing hearing. _________________________________ Judge Julie A. Edwards Stark County, Case No. 2010CA00022 9 Hoffman, J., concurring {¶23} I concur in the analysis of Judge Edwards but for her apparent agreement with Judge Delaney the nature of the contempt was indirect criminal contempt. I find the case sub judice presents a civil contempt issue. ________________________________ HON. WILLIAM B. HOFFMAN Stark County, Case No. 2010CA00022 10 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT SHANAUNA FAULKNER Plaintiff-Appellee -vsDARNELL PEGRAM Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 2010CA00022 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas, Juvenile Division, is reversed and the matter remanded for further proceedings consistent with this Opinion. Costs to Appellee. HON. PATRICIA A. DELANEY HON. JULIE A. EDWARDS HON. WILLIAM B. HOFFMAN

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