Ken Swindle v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
KEN SWINDLE,
CR07-1281
Opinion Delivered May
APPELLANT,
VS.
STATE OF ARKANSAS,
29, 2008
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CR07-1443-1,
HON. WILLIAM A. STOREY, JUDGE,
APPELLEE,
AFFIRMED IN
DECLARED.
PART;
ERROR
JIM HANNAH, Chief Justice
Appellant Ken Swindle brings this appeal raising numerous challenges to the
Washington County Circuit Court’s order finding him in contempt of court and sentencing
him to 24 hours’ confinement in the Washington County Detention Center. The State
contends that, because Swindle has already served his sentence of confinement, his appeal is
moot and should be dismissed.
Attorney Swindle represented defendant Juan Lux-Lux on a charge of first-degree
forgery. Swindle appeared with Lux-Lux at an arraignment in the circuit court on July 11,
2007. At the arraignment, the circuit court informed Lux-Lux that he was entitled to a jury
trial. On July 12, 2007, the circuit court transmitted, by facsimile, a letter order to Swindle,
notifying him that Lux-Lux’s trial had been set for September 10, 2007. Also included in the
letter was the following statement: If a jury is requested, please notify my office at least 48
hours in advance, or it will be assumed that a bench trial is sufficient or a plea will be entered
on the trial date.
On July 13, 2007, Swindle filed a Motion to Continue and Objection to Notice, on
behalf of Lux-Lux. The motion stated that the 48-hour notice requirement was “ambiguous
and unclear to the Defendant.” Further, the motion provided that there had been no
omnibus hearing in the matter and that the “Defendant [had not] waived any of his
Constitutional rights.” Therefore, Lux-Lux “object[ed]” to the notice sent by the circuit
court. The motion also noted that Swindle had a scheduling conflict with the date set for
trial. Finally, the motion requested that the trial set for September 10 be continued, that LuxLux be given a date for an omnibus hearing, “and for all other rights guaranteed to him by
the Arkansas and Federal Constitutions.” On July 16, 2007, Swindle filed an Amended
Motion to Continue and Objection to Notice, on behalf of Lux-Lux. The motion stated that
Lux-Lux “continue[d] to object to the setting notice of September 10, 2007, for the reasons
stated in his original Motion to Continue and Objection to Notice.” Additionally, the
motion stated that Lux-Lux requested “all other rights guaranteed to him by the Arkansas and
Federal Constitutions.”
Swindle and Lux-Lux appeared in the circuit court on September 10, 2007. The
following colloquy took place between Deputy Prosecuting Attorney Chreea Stanimirovic,
Swindle, and the circuit court:
MS. STANIMIROVIC:
Your Honor, if I may. Defendant—I
received a message at 4:05 on Friday
afternoon that he was requiring a Jury
Trial.
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MR. SWINDLE:
That is incorrect, Your Honor.
Defendant’s request for Jury Trial was
made previously but the Prosecutor’s
Office is not ready to proceed. There’s
also been a Motion for Discovery filed in
this case which has not been responded to.
Also, at the Arraignment in this matter I
notified the Prosecutor’s Office this is the
incorrect Court for this case because the
Defendant is too young to be in this
Court. The Prosecutor is obviously not
prepared. She has misinformed this Court.
THE COURT:
Well, Mr. Swindle, you’ve been in this
Court a number of times. You have to
understand that we call the juries. The
Prosecutor doesn’t call the juries. We have
heard nothing, whatsoever, from you or
your office requesting a jury. This—if you
have a problem with this Defendant being
charged in Juvenile Court, as you know, or
should know, you need to file a Motion to
Transfer in this case which, as I understand
it, there’s no Motion filed?
MR. SWINDLE:
There’s not, Your Honor, but there’s no
response to the Motion for Discovery
which has been filed.
THE COURT:
Well, I regret that, Mr. Swindle. I’ll tell
you what, this case is set for Trial today.
You understand how this process works,
and in my view, you are in contempt of
this Court for not complying with the way
we do things here, and for not requesting
a jury way before today.
MR. SWINDLE:
It is requested in my pleadings, Your
Honor.
THE COURT:
Well, we haven’t received any of your
pleadings. There’s nothing. You are in
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contempt of this Court. I’m gonna put
you in jail for 24 hours, then you can the
next time around—and I’m gonna reset
this matter for November 21. And if you
want Motions heard, you can file Motions
and you address these issues the proper
way. So you have a seat over there, Mr.
Swindle.
Swindle was escorted to the Washington County Detention Center, where he served
a twenty-four hour term of confinement. The circuit court memorialized its findings in an
order entered September 10, 2007. The circuit court found:
That on the 11th day of July, 2007, the defendant, Juan Lux-Lux, appeared for
arraignment in this cause with his attorney, Ken Swindle, at which time the
defendant was arraigned on the charge of forgery in the first degree.
That at the conclusion of said arraignment hearing, the defendant and his
attorney, Ken Swindle, were advised that this matter was set for trial for
September 10, 2007.
That on the 12th day of July 2007, defendant’s attorney was once again notified
by way of facsimile transmission that defendant’s case was set for trial
September 10, 2007.
That on the 10th day of September, 2007, defendant appeared with his
attorney, Ken Swindle, who advised the Court that the case was filed in the
“wrong court” and further, that defendant demanded a jury trial.
That defendant’s attorney, Ken Swindle, did not formally raise any
jurisdictional issues or communicate with the Court as to the status of
defendant’s case prior to September 10, 2007.
That Deputy Prosecuting Attorney Chreea Stanimirovic, on four occasions,
attempted to discuss the status of defendant’s case with his attorney, Ken
Swindle, by telephone, which attempts were unsuccessful in that defendant’s
attorney, Ken Swindle, did not return Deputy Prosecutor’s Stanimirovic’s
telephone calls.
That on the 10th day of September, 2007, defendant’s attorney, Ken Swindle,
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made unprofessional and uncivil remarks in open court relating to the deputy
prosecuting attorney’s representation of the State of Arkansas in this cause.
That defendant’s attorney, Ken Swindle, advised the Court that he had
requested a jury in his pleadings, which representation is incorrect in that no
such request appears in the pleadings.
That defendant’s attorney’s conduct as set forth above constitutes a deliberate
and purposeful attempt to obstruct and interfere with the orderly and efficient
administration of justice, and by reason thereof, defendant’s attorney, Ken
Swindle, should be and is hereby found to be in contempt of this court and
incarcerated in the Washington County Detention Center for a period of 24
hours.
Three days after the citation of contempt, the circuit court transmitted, by facsimile,
its letter order resetting the trial for November 21, 2007. Again, the order included the 48hour notification requirement and, again, Swindle filed an objection to the notice.
Swindle filed a Motion and Brief for Reconsideration of the order of contempt. In
his motion, Swindle noted that his client’s request for a jury trial was guaranteed by the
Arkansas Constitution and the United States Constitution. In addition, Swindle stated that
his motions filed on July 13 and July 16, 2007, requested his client’s guaranteed constitutional
rights. Swindle contended that the circuit court should have given him notice of a hearing
concerning the telephone calls from Deputy Prosecuting Attorney Stanimirovic because the
calls did not take place in the presence of the court. As to the circuit court’s finding regarding
Swindle’s uncivil remarks to Stanimirovic, Swindle contended that his statements were
factually true, namely that there was a failure by Stanimirovic to respond to discovery and that
she was unprepared for trial on September 10, 2007.
The circuit court held a hearing on the motion for reconsideration, which was denied
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in an order entered October 24, 2007. Swindle appeals the order of contempt and the denial
of his motion for reconsideration.
As a preliminary matter, we must address the State’s argument that this appeal is moot
and should be dismissed. The State asserts that this court cannot entertain any of Swindle’s
challenges to the circuit court’s order of contempt because his appeal is moot due to the fact
that he has already served his sentence of confinement.
Swindle contends that,
notwithstanding the fact that he has served his sentence, the court should address his
arguments because the circuit court’s use of an unconstitutional order is a wrong that is likely
to reoccur.
The general rule regarding contempt orders is that where the terms of a contempt
order have been fulfilled, the issue of the propriety of the contempt order is moot. See Conlee
v. Conlee, 370 Ark. 89, ___ S.W.3d ___ (2007) (stating that any argument pertaining to
seven-day sentence for criminal contempt was moot where appellant had completed the
sentence and paid the fine associated with that contempt order); Centr. Emergency Med. Servs.,
Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998) (dismissing appeal from criminal contempt
order as moot where emergency medical service provider paid the fine that the court
imposed); Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956) (holding that the issue of
civil contempt was moot, where the party held in contempt for failure to pay child support
paid the delinquent child support and purged the contempt).
This court has recognized two exceptions to the mootness doctrine. The first one
involves issues that are capable of repetition, yet evade review, and the second one concerns
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issues that raise considerations of substantial public interest which, if addressed, would prevent
future litigation. Delancy v. State, 356 Ark. 259, 151 S.W.3d 301 (2004). Ordinarily,
mootness resolves the controversy and renders a decision unnecessary. Owens v. Taylor, 299
Ark. 373, 772 S.W.2d 596 (1989). But that choice is ours to make and where consideration
of an issue that is capable of repetition, yet evades review, is present, we may elect to settle
an issue, even though moot. See id.
In the instant case, we agree with the State that the question of whether the circuit
court erred in holding him in contempt is moot. However, because one of the bases for
holding Swindle in contempt was his failure to request a jury trial 48 hours before trial is an
issue capable of repetition, but that evades review, we find it necessary to address the
propriety of that portion of the circuit court’s order.
The Arkansas Constitution provides that an accused in a circuit court case has a right
to a trial by jury and that the right shall remain inviolate unless waived by the parties in the
same manner prescribed by law. See Ark. Const. art. 2, §§ 7, 10. In order for a defendant to
waive his or her right to a jury trial, he or she must do so personally either in writing or in
open court and the waiver must be assented to by the prosecutor and approved by the court.
Ark. R. Crim. P. 31.1, 31.2.
In every criminal trial where there is a right to a trial by jury, the court should proceed
as if a jury were to be used unless waiver takes place in accordance with the law. Calnan v.
State, 310 Ark. 744, 749, 841 S.W.2d 593, 596 (1992). The burden is on the trial court to
assure that, if there is to be a waiver of the right to a jury trial in a criminal case, it be done
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in accordance with the rules by which we have implemented our Constitution. Id., 841
S.W.2d at 596. The Arkansas Constitution and the Arkansas Rules of Criminal Procedure
assume a defendant will be tried by a jury unless that right is expressly waived. Id., 841
S.W.2d at 596. The law providing the manner of waiver is obviously designed to assure that
the jury trial right is not forfeited by inaction on the part of the defendant. Id., 841 S.W.2d
at 596.
We wish to make it clear that in the present case, the defendant was not denied his
right to a jury trial. Nevertheless, we are troubled by the circuit court’s standard practice of
requiring a defendant to request a jury at least 48 hours before trial, as this practice is not in
accordance with the Arkansas Constitution and our rules of criminal procedure.
The right to a jury trial is a right held by a defendant, not the circuit court. A
defendant is not required to request a right to which he or she is already guaranteed. In
essence, the notice requirement puts the defendant in the position of forfeiting his or her right
to a jury trial due to inaction. It is not proper for the circuit court to assume that a jury trial
is waived due to a defendant’s inaction. Nor is defense counsel required to make this request
on behalf of a defendant.
We are sensitive to the circuit court’s challenges in managing its docket in an orderly
fashion; however, a defendant has a fundamental right to a trial by jury, and again, any waiver
of that right must be done in accordance with our Constitution and our rules of criminal
procedure.
See Reaser v. State, 47 Ark. App. 7, 11, 883 S.W.2d 851, 854 (1994).
Accordingly, we declare error as to the circuit court’s use of orders requiring defendants to
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request a jury trial 48 hours prior to trial.
Affirmed in part; error declared.
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