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State v. Powell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEVIN POWELL, DEFENDANT-APPELLANT.
IN THE MATTER OF THE SUMMARY CONTEMPT OF DEVIN POWELL.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-07-0502; 04-08-0617; 06-01-0012.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 16, 2008

Before Judges Cuff and Lihotz.

On June 8, 2007, defendant Devin Powell was sentenced in accordance with a negotiated plea agreement. Defendant had pled guilty to various offenses, including disarming a police officer and four counts of aggravated assault. On that day, the judge imposed a fourteen-year term of imprisonment subject to a No Early Release Act, N.J.S.A. 2C:35-7.2, 85% parole ineligibility term. Immediately following the sentencing, a verbal exchange occurred between the judge and defendant that led to a finding that defendant was in contempt of court and imposition of a six-month term of imprisonment consecutive to the fourteen-year term just imposed.

On appeal, defendant argues that the judge failed to follow the mandatory procedures of Rule 1:10-1 and defendant's conduct cannot be considered contemptuous. We agree and reverse.

As the sentencing proceeding was concluding, the judge explained to defendant his right to appeal. The following exchange then occurred:

THE COURT: * * * Do you understand your appeal rights and the notice which I have just given you regarding your driver's license suspensions, sir?

THE DEFENDANT: Yeah.

THE COURT: Is that a yes?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Powell, do you want to explain to me what you meant by that response?

THE DEFENDANT: Yes, sir.

THE COURT: Explain it to me.

THE DEFENDANT: I just explained it.

THE COURT: Okay.

Mr. Powell, I asked you for a response. You nodded your head. And then when I asked you if that was a yes, you gave me what I considered to be by your tone a yes, sir, meant to convey with your annoyance with my inquiry. Was I wrong in that, sir?

THE DEFENDANT: Yeah. Or yes, sir.

THE COURT: I'll ask you again. What did you mean by that?

THE DEFENDANT: Yes, sir.

How many times do I got to explain it to you?

THE COURT: Well, you have got to explain it as many times as I ask you I suppose.

THE DEFENDANT: Do you want to ask me again?

THE COURT: Pardon me.

THE DEFENDANT: Do you want to ask me again?

THE COURT: No sir, I don't want to ask you again.

You have a problem with any of this, Mr. Powell? A problem with me or a problem with this process?

That's a question you can answer. Sir? I asked you a question.

THE DEFENDANT: Are we done yet?

THE COURT: No, sir. I asked you a question.

Do you want to answer my question?

THE DEFENDANT: No.

THE COURT: All right. Have Mr. Powell take a seat in the jury box.

The judge informed defendant that he considered "[defendant's] conduct and attitude to be a contempt in the face of this court." The judge discharged defendant's counsel. Following a brief recess, the judge proceeded with the summary contempt proceeding. The judge found that defendant's conduct obstructed or if continued would have obstructed the proceedings, the conduct as will be reflected in the video record of these proceedings, occurred in my presence and was actually seen and heard by me.

The continuation and character of the conduct and the disrespect for this court which [defendant] exhibited continued after an appropriate warning, which unmistakably demonstrates its willful contumacious character on the part of Mr. Powell and, therefore, I find that immediate adjudication is necessary to permit the proceedings of this court to continue in an orderly and proper manner.

When defendant declined an opportunity to explain or excuse his conduct, the judge imposed sentence.

In a June 8, 2007 order, the judge recited that "during the course of the sentencing, the Defendant interrupted the Court proceedings by using disrespectful behavior and language to the Court; and after having been questioned by the Court as to making disrespectful comments, the Defendant failed and refused to discontinue his disrespectful behavior and language." The order then contains the following findings:

a. the conduct has obstructed, or if continued would obstruct, the proceeding;

b. the conduct occurred in the actual presence of the Judge, and was actually seen or heard by the Judge.

c. the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;

Special appellate procedures attend review of contempt orders. Initially, we must ascertain compliance with Rule 1:10-1. Then, we conduct a de novo review of the law and the facts. R. 2:10-4.

In accordance with Rule 1:10-1, the order of contempt must "recite the facts and contain a certification by the judge that he . . . saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious." An adjudication without the required recitation and certification is fatally defective. In re Duane, Morris & Heckscher, LLP, 315 N.J. Super. 304, 313 (App. Div. 1998); State v. Quintana, 270 N.J. Super. 676, 682 (App. Div. 1994). The order entered in this case does not contain the requisite factual recitation or certification; the order recites conclusions without any factual findings specific to this incident. It is, therefore, fatally defective.

Proceeding to a de novo review of the order of contempt entered in this case, we find that the facts are insufficient to sustain a finding of contempt. The exchange between the judge and defendant occurred at the end of the proceedings. No delay was caused by defendant's behavior. Furthermore, although the remarks may have been impertinent, even insolent, the inherent authority of the judge was not challenged or denigrated.

Defendant used no profanity. He did not turn his back on the judge. Indeed, the conduct evidenced in the transcript and the video recording of the proceedings suggests that defendant's behavior was symptomatic of his diagnosed psychiatric condition that may have contributed to the offenses for which he was sentenced on that day. Defendant's remarks were insufficient in quality or quantity to support a finding of contempt in the face of the court. Therefore, the order of contempt is reversed.

Reversed.

20080401

© 1992-2008 VersusLaw Inc.



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