ANALYSIS OF FEBRUARY 26, 2008 CAV OPINIONS

[Posted February 26, 2008] The Court of Appeals gives us two published rulings today, one in a purely criminal case and the other in the quasi-criminal field of contempt.

Criminal law

(Memo to self: 1. If I’m ever damn fool enough to turn to a life of robbery, don’t try to rob the place where I used to work, and where everybody recognizes me. 2. If I disregard the sound advice in item 1 above, don’t count on mistaken identity as a basis for a defense.)

A life of reading and analyzing appellate opinions has to have some advantages, and getting solid life advice like this is one of those benefits today, as the Court of Appeals decides Coleman v. Commonwealth . Coleman, a previously convicted felon, pulled a stickup on, of all places, a Goodwill Industries store. He got away with the cash from a couple of employees there, who recognized him since he formerly worked there.

He pleaded guilty, but just before sentencing, hastily filed a motion to withdraw his guilty plea, maintaining that he pleaded guilty not out of guilt, but “out of fear.” The trial court reasoned that the only thing he “feared” was getting sentenced for robbery, which could be as much as life in prison. Coleman didn’t deny this. The court rejected his request and sentenced him anyway, though alas, today’s opinion doesn’t specify what the sentence was, so we have no idea whether his fear was warranted.

On appeal, the court applies the very recent Supreme Court holding in Justus v.Commonwealth, 274 Va. 143 (2007), dealing with the withdrawal of guilty pleas. Justus, faithful readers of this web site will recall, sought to withdraw her plea because she had two defenses, not raised by her former lawyer, that would provide absolute defenses to the charges against her. Coleman, in contrast, just wanted to try to claim that the witnesses against him might have been mistaken when they picked him out as the perpetrator. The evidence, the trial court noted (and the appellate court agrees), was overwhelming.

Lest you think that this is mere rationalizing by hindsight, be assured that the strength of the evidence makes a difference. The Supreme Court in Justus ruled that a “merely dilatory or formal” defense wouldn’t ordinarily suffice to crowbar a guilty plea open, but a substantive, meaningful one would. The court thus affirms the trial court’s exercise of its discretion in rejecting the motion and in sentencing Coleman.

Contempt

Today’s opinion in Fisher v. Salute arises out of the tragic death of Salute’s son, who was electrocuted on Fisher’s lakeside dock, and drowned. Salute filed a wrongful death action in Prince William County, and the parties eventually agreed to a settlement. One of the terms of that settlement was that Fisher was to remove his dock within 60 days, and not have another one as long as he lived in the area. Reading between the lines, I infer that this provision was intended as a sort of tribute to the drowned boy, so that no other child would be injured or killed in this manner at Fisher’s dock. The requirement was incorporated, pretty much word for word, into the final settlement order.

But the deadline came and went, and the dock remained. Salute filed a show cause petition, and the court ruled after a hearing that Fisher was in violation of the court order. The court gave Fisher another 2 ½ months to purge himself of this contempt. When that day arrived, the pier was gone, but Fisher had attached stanchions to the landing platform at the shore, and was tying boats up to that structure. The court found that this, still, did not comply with the order, found him in contempt again, and gave him another seven weeks to comply.

This time, he did what he was supposed to do, so Salute advised the court that the matter could be removed form the hearing docket, and the contempt marked purged. But a year later, the parties were back; Fisher was now “securing boats to the last few steps at the bottom of the wooden stairway that led from the residence to the water, to stakes driven in the ground along the shoreline, and to pontoon boats.” At this point, if you’re like me, you’re really running out of patience for Fisher, who seems to be looking for every way he can to get around the language of the court order that he had agreed to. We’re in good company; the trial judge felt that way, too.

The court ordered Fisher to remove everything from the shoreline, and to pay Salute’s attorney’s fees and costs (to the tune of $4,700). This time, it gave him two weeks to purge himself. You’ll be encouraged to learn that he did it (the judge must have been particularly stern at the previous hearing). But nine months later, he was at it again; this time, he was tying boats to rocks along the shoreline, lashing a couple of boats together, and running an electric cord up to them (remember that Salute’s son had been electrocuted). Another hearing; another contempt finding. Fisher decided to seek relief in Richmond.

On appeal, the court first addresses a couple of jurisdictional issues, including whether the circuit court had the authority, in light of Rule 1:1, to conduct all those contempt hearings. This ruling is a foregone conclusion; the appellate court finds that trial courts do, indeed, have the authority to enforce their orders through contempt powers. That’s because contempt proceedings are “ancillary to and in support of” the earlier final decree.

The court then turns to the contempt finding itself. Fisher’s principal argument is that the initial decree didn’t define the word dock. He also contended that the court kept changing the definition of the word as later and later hearings produced more and more restrictions on what he could do. Finally, he concludes that there was nothing in the order that kept him from tying boats up to rocks on the shore.

I’ll jump ahead and tell you that the court affirms the finding of contempt. In my view, Fisher was his own worst enemy throughout these proceedings; if he had earnestly attempted to comply with the plain intent of the agreed order, then he wouldn’t be in this position. But he constantly tried to find and take advantage of any ambiguity in the order to enable him to effectively use the area just as he had before. My sense is that if he had sought clarification in good faith from the outset, he might have been able to moor some boats (though not with the electrical lines) adjacent to the shore somehow. But by the time he got to that point, the trial judge had just had it with him. And since the appellate court reviews the trial court’s finding under a very deferential standard, the contempt finding stands.