JAMES F. VALLEY V. STATE OF ARKANSAS

The State filed a criminal information against Sherrie Currie for abuse of an adult on

April 21, 2015. The case was filed in the Craighead County Circuit Court. James Valley

entered an appearance on Currie’s behalf. The circuit court entered a scheduling order on

August 10, 2015, setting a motion and plea day for October 2, 2015, and a jury trial for

October 19 through October 23. Valley’s signature appeared at the bottom of the scheduling

order.

1 The notice of appeal states that Valley’s client, Sherrie Currie, is the appealing party. However, the order appealed from was the order finding Valley in contempt. Thus, he is the proper party on appeal and should be listed as the named appellant. See, e.g., McCullough v. State, 353 Ark. 362, 108 S.W.3d 582 (2003); Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

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A hearing took place on October 19. Valley filed notice that Currie was changing

her plea to not guilty by reason of mental disease or defect. The court quickly ordered a

mental evaluation, which took place the morning of October 21 and was conducted by Dr.

Thomas. Another hearing took place that afternoon. Based on testimony from Dr. Thomas,

the court found that Currie did not have a mental disease or defect and could assist in her

defense. The court also stated that the case was ready for trial, which was scheduled to start

the next morning, October 22, at 9:00 a.m. Valley objected, however, and asked for a delay

so the defense could conduct an independent evaluation of Dr. Thomas’s written report,

which had yet to be completed. The court denied Valley’s request.

At that point, Valley informed the court that he would not be present the next day

for trial. He told the court that he had been subpoenaed to be a witness at a trial at the

Phillips County District Court in Helena. The court, incredulous, told Valley that the trial

would commence nonetheless. The following colloquy took place:

THE COURT: We are going to have a trial tomorrow.

MR. VALLEY: And, Your Honor, you seem to be raising your voice with me.



THE COURT: I’m not raising my voice with you. I’m just telling you we’re having trial tomorrow.



MR. VALLEY: Your Honor, I will not be here.

THE COURT: I’m just telling you we’re having trial tomorrow, Mr. Valley.

MR. VALLEY: Your Honor, I understand what you said.

The hearing ended shortly thereafter. The court reconvened the next morning at 9:00 a.m.

for the jury trial. Fifty-nine jurors were empaneled. Ms. Currie, the defendant, appeared.

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Valley, however, did not. The court released the jury and, upon the State’s motion, entered

an order to show cause against Mr. Valley for failure to comply with the court’s scheduling

order.

Valley was served with the order the same day. A hearing on the show cause was

held on November 18, 2015. Valley, who was represented by counsel, testified in his own

defense. Valley explained that he had been served with the subpoenas in the Phillips County

District Court case on Monday, October 19. Valley also admitted that he appeared in court

for Ms. Currie’s case on Tuesday, October 20, but failed to advise the court of the conflict

until the court had ordered Currie fit for trial on the afternoon of Wednesday, October 21.

Valley also admitted that he failed to file a motion to quash the subpoena in the Phillips

County case. Last, Valley admitted that he appeared as a witness in the Phillips County case

rather than appear for Ms. Currie’s jury trial.

The circuit court concluded that Valley had willfully violated its scheduling order

and found him in criminal contempt. The court noted that Valley had never filed a motion

to continue the jury trial due to the scheduling conflict, but simply told the court, “I will

not be here.” Nor did Valley present the court with the subpoena from the Phillips County

case. The court fined Valley $500 and ordered him to repay the clerk for $885 in juror costs

and to repay the prosecutor’s office $114.80 in restitution. Valley subsequently appealed.

Under the standard of review for a case of criminal contempt, we view the record in

the light most favorable to the circuit court’s decision and affirm if the decision is supported

by substantial evidence. James v. Pulaski Cty. Circuit Ct., 2014 Ark. 305, 439 S.W.3d 19.

Substantial evidence is evidence of a sufficient force and character to compel a conclusion

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one way or another, forcing the mind to pass beyond suspicion or conjecture. Id. The

relevant statute provides that a circuit court may punish, as criminal contempt, “willful

disobedience of any process or order lawfully issued or made by it.” Ark. Code Ann. § 16

10-108 (Repl. 2010). The disobedience of any judgment, order, or decree of a court having

jurisdiction to enter it is such an interference with the administration of justice as to

constitute contempt. Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004). The scheduling

of cases is tantamount to a direct order of the court. Id.

Valley argues on appeal, without citing much authority and in a very discursive

fashion, that he cannot be held in contempt for willfully violating the court’s scheduling

order because he was under subpoena in another court. Thus, he claims, the circuit court

should have granted his motion for a directed verdict. Further, Valley alleges that the court’s

decision to deny Valley’s motion to delay the trial for an independent expert to review Dr.

Thomas’s fitness report rendered the court’s underlying scheduling order invalid. Therefore,

“any contempt for failure to comply with that order should and must be reversed and

dismissed.” Viewing the evidence in the light most favorable to the court’s ruling, we hold

that substantial evidence supports the contempt finding.

At the outset, we reject Valley’s assertion that the court’s scheduling order was invalid

and that he, accordingly, was under no obligation to abide by it. First, Valley never

challenged the scheduling order below, so this argument is not preserved. E.g., Holland v.

State, 2015 Ark. 318, 468 S.W.3d 782. Indeed, he signed the scheduling order on August

10, 2015, and never challenged it. Second, in considering appeals from a criminal contempt

finding, we will not look behind the order to determine whether it is valid. See James, supra.

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Valley’s lone citation adheres exactly to this view. See Etoch v. State, 332 Ark. 83, 964

S.W.2d 798 (1998). We did note an exception to this general rule in Etoch, which is when

a “contemnor [is] making a legitimate and successful challenge to the validity of the

underlying order.” Id. at 88, 964 S.W.2d at 801. But Valley cannot challenge the order on

this basis: the circuit court clearly had the ability to schedule cases. Under our rules of

criminal procedure, “the court shall control the trial calendar and shall provide for the

scheduling of cases.” Ark. R. Crim. P. 27.2 (2016). So any challenge to the court’s

scheduling order would have been neither legitimate nor successful.

Next, the fact that Valley was under subpoena in another court does not provide a

basis to reverse the circuit court on this record. One case is instructive. See Perroni, 358 Ark.

17, 186 S.W.3d 206. There, the defense attorney had two jury trials scheduled at the same

time—one in federal court and one in state court. The attorney asked for a continuance in

the state case, which the court denied. The attorney consequently failed to appear for the

jury trial in state court. The court found the attorney in contempt, and the attorney

appealed.

We affirmed. We stated that “state trial judges have an obligation to assure their

courts are conducted in an orderly and correct manner. The trial court does so by scheduling

cases.” Id. at 26, 186 S.W.3d at 212. Of particular importance, we noted that the attorney

never informed the federal judge of an existing conflict in state court. Had he done so, we

stated, “[i]t is most reasonable and plausible to believe [the federal judge] would have

deferred to the State to try its case first, since it was set prior to [the federal matter].” Id. at

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27, 186 S.W.3d at 212. We concluded that the attorney’s “failure to address his conflict

problem with both the federal and state judges” justified the court’s contempt finding. Id.

Likewise, in this case, Valley failed to adequately address his conflict problem. He

failed to file a motion to quash the subpoena in the Phillips County District Court. He failed

to file a motion to continue the Currie matter due to his conflict. Instead, he simply

informed the court, the day before trial, that he would not attend.

These failures provide substantial evidence to affirm the circuit court’s contempt

finding. The court’s scheduling order had been in place since August. The Phillips County

subpoena was served on October 19. It is reasonable to conclude that, had Valley at least

filed a motion to quash the subpoena in light of a pending jury trial, such a request would

have been granted by the Phillips County District Court. Or, on the other hand, had Valley

filed a motion to continue the Currie matter, the circuit court might have consulted with

the district court to devise a solution. The circuit court noted this in his ruling from the

bench.