State v. Del Mason

486 P.3d 94

STATE of Utah, Appellee,

v.Von Del MASON Jr., Appellant.

No. 20190618-CA

Court of Appeals of Utah.

Filed April 8, 2021

Emily Adams, Freyja Johnson, Salt Lake City, and Cherise Bacalski, Attorneys for Appellant

Brent M. Johnson, Attorney for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Von Del Mason Jr. appeals the district court's order finding him in contempt. We affirm.

BACKGROUND

¶2 Mason and his ex-wife, who were embroiled in contentious post-divorce proceedings, attended a hearing regarding the ex-wife's relocation to Arizona. Before the judge ruled, he told the parties, "I don't want any talking to each other. I'm not open for any debate.... I'll give you my ruling and we can all leave, whatever your opinion is about it." After the judge made his ruling, which was adverse to Mason, he announced, "[W]e are adjourned." Immediately thereafter Mason proclaimed to the judge, "You are a disingenuous, intellectual liar." Following that statement, the court recording was turned off for approximately one minute. However, in a written order entered that same day, the judge recited that during that break "[s]everal times the court suggested that Mr. Mason should stop talking" and later "instructed Mr. Mason to stop talking, but he continued with similar accusations and disrespectful comments." When the recording was turned back on, the following exchange took place:

Mr. Mason: That's the truth, sir. And I have every right to tell you that.

The Court: Mr. Mason, you are in contempt.

Mr. Mason: Go figure.

The Court: I don't appreciate—

Mr. Mason: I don't appreciate you. You're not—you're dishonest.

....

The Court: —you're trying to make this personal.

Mr. Mason: No, you've made it personal, sir. You said this was your courtroom. This is not your courtroom, sir. You have a job. You were an antitrust lawyer.

The Court: I told you repeatedly to stop talking. You're not listening. You are in contempt. I'm tired of it.

....

Mr. Mason: You're a disingenuous liar, sir.

The Court: You are in contempt.

Mr. Mason: Okay. Enjoy it.

¶3 Based on Mason's behavior in its presence, the judge found Mason "guilty of contempt pursuant to Utah Code 78B-6-301(1) and (5)" for disrupting its proceedings and disobeying its order to stop talking and sentenced him to forty-eight hours in jail. The next day, however, the court "suspend[ed] the balance of the jail time" and ordered Mason released from jail. Mason now appeals his contempt conviction.

ISSUES AND STANDARDS OF REVIEW

¶4 As a threshold issue, we must determine whether Mason's appeal is moot in light of the fact that he has already completed his sentence. If "the requested relief cannot affect the rights of the litigants, the matter is moot and we will not consider it." Gardiner v. York , 2010 UT App 108, ¶ 30, 233 P.3d 500 (quotation simplified). And we consider the issue of mootness as a question of law. See State v. Legg , 2018 UT 12, ¶ 12, 417 P.3d 592 (explaining that mootness is reviewed "de novo").

¶5 Mason raises several substantive challenges to the district court's contempt order. First, he asserts that the court denied his right to counsel. Next, Mason asserts that he could not be held in contempt for statements he made after the court had adjourned and that the court exceeded its discretion in holding him in contempt because the court did not impose a clear order. Mason did not preserve these issues for our review, but he asks that we nevertheless review them for plain error and exceptional circumstances.

¶6 Normally, "[w]hen a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. Plain error and exceptional circumstances are such exceptions. However, here the State raised the issue of mootness and briefed Mason's challenges to the court's contempt order on their merits. And as discussed below, we agree with the State that the issues Mason raises fail on their merits. Where this is the case, we possess the discretion to reject claims on their merits, even when those claims have not been properly preserved. See State v. Kitches , 2021 UT App 24, ¶¶ 27–28, 484 P.3d 415. We elect to exercise that discretion here, and after first determining that Mason's appeal is not moot, we address, and reject, Mason's claims on their merits.

ANALYSIS

I. Mason's Appeal Is Not Moot

¶7 "A challenge to a conviction of criminal contempt is not moot if there is a possibility that collateral legal consequences may result from the conviction." Gardiner v. York , 2010 UT App 108, ¶ 33, 233 P.3d 500. The State maintains that there is no possibility of collateral legal consequences, asserting that a criminal contempt conviction will not appear in Mason's criminal record and is not the type of criminal conviction that can be used for impeachment purposes. However, even assuming, without deciding, that the State's assertions are correct, the State does not respond to Mason's argument that "because this criminal contempt conviction comes in the midst of a family law case where child custody is involved, a record of criminal contempt may affect future decisions on custody." Cf. State v. C.H. , 2008 UT App 404U, para. 2, 2008 WL 4817192 (explaining that a criminal contempt conviction may have "ramifications on future investigations or adjudications by the Division of Child and Family Services" and could therefore affect a person's right to parent their children). "The burden of persuading the court that an issue is moot lies with the party asserting mootness," State v. Legg , 2016 UT App 168, ¶ 9, 380 P.3d 360 (quotation simplified), aff'd , 2018 UT 12, 417 P.3d 592, and we cannot say with certainty that Mason's contempt conviction could have no possible impact on future child custody determinations or in future encounters with the legal system. Thus, we agree with Mason that this appeal is not moot.¹

II. Mason Was Not Entitled to the Appointment of Counsel in a Direct Contempt Summary Proceeding

¶8 Mason argues that the district court improperly denied his right to be represented by counsel during the proceeding in which it found him in contempt and imposed a sanction. Mason argues that he was entitled to the assistance of counsel in these criminal contempt proceedings and that the court's failure to advise him of that right or to facilitate the appointment of counsel violated his constitutional rights and prevented him from adequately challenging the merits of the contempt finding. Although a defendant in most criminal proceedings—including many criminal contempt proceedings—generally has the right to counsel, see Turner v. Rogers , 564 U.S. 431, 441, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) ; United States v. Dixon , 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court previously held, in Cooke v. United States , 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), that such a right does not exist in summary criminal contempt proceedings involving conduct committed in the presence of the judge, see id. at 534, 45 S.Ct. 390 ("There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary.").

¶9 Mason asserts that subsequent Supreme Court case law acknowledging that "[c]riminal contempt is a crime in the ordinary sense" and that "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings," International Union, United Mine Workers of Am. v. Bagwell , 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (quotation simplified); see also Argersinger v. Hamlin , 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ("[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial."), should be interpreted as repudiating the Court's previous position that the appointment of counsel is not required in summary criminal contempt proceedings. However, the Supreme Court has continued to reaffirm the exception for summary criminal contempt. See Turner , 564 U.S. at 441, 131 S.Ct. 2507 (citing Cooke with approval and stating that "an indigent defendant [has] the right to state-appointed counsel in ... criminal contempt proceedings (other than summary proceedings)" (quotation simplified)); Dixon , 509 U.S. at 696, 113 S.Ct. 2849 (explaining that "constitutional protections for criminal defendants," including the right to the assistance of counsel, "apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions" (emphasis added)). Although these more recent holdings may not address the issue head-on, the Court's continued reference to the exception without repudiating Cooke leaves us with no basis, under the federal constitution, for recognizing a constitutional right to the assistance of counsel in summary criminal contempt proceedings. Because Mason had no right to counsel, the court could not have erred by not informing him of such a right or by choosing not to appoint counsel to assist him in the summary proceeding.

III. We Reject Mason's Challenges to the Court's Contempt Finding

¶10 The court found Mason in contempt based on both subsections (1) and (5) of Utah Code section 78B-6-301. Mason raises challenges with respect to the court's findings under both provisions.

A. The Court Did Not Err by Holding Mason in Contempt After Stating That Proceedings Were Adjourned

¶11 In his challenge to the contempt order, Mason asserts on appeal that the court erred in holding him in contempt under Utah Code section...