Criminal Defense Attorney Jess Hoeme Obtains Appellate Reversal of Conviction

Published: 12 June 2017

On December 8, 2015, Terra McDaniel was required to report for jury duty in Sedgwick County District Court. Due to emergency circumstances, proper care for her young child was unavailable, and she was unable to report for jury duty on time. When she arrived late, she was told to report at a hearing on December 18, 2015, to explain to the judge why she did not arrive for jury duty on time. Without at attorney, Ms. McDaniel appeared as directed on December 18, 2015, ready to explain her child care dilemma. To Ms. McDaniel’s surprise, the hearing was a hearing to determine whether her late appearance for jury duty constituted criminal contempt of court. Based on information relayed from the jury clerk, the judge found Ms. McDaniel to be in direct criminal contempt of court, imposed a six-month controlling jail sentence, and ordered Ms. McDaniel to serve 30 days in jail beginning immediately after her hearing.

On appeal, Joseph, Hollander & Craft’s Jess Hoeme helped Ms. McDaniel secure a reversal of this conviction. In the written opinion released June 9, 2017, In re McDaniel, Kan. Ct. App. Case. No. 115,614, the Kansas Court of Appeals held that the facts underlying Ms. McDaniel’s conviction could not amount to direct contempt of court because the conduct was not directly observed by the judge. “If the judge needs to rely on statements and testimony from others regarding what they know about the contemptuous acts, however, the misconduct is no longer direct contempt but instead is indirect contempt.”

The appellate court ruled:
McDaniel’s failure to appear the morning of her second day of jury duty did not constitute a direct criminal contempt but instead indirect criminal contempt, if contempt at all. As explained above, the accused is entitled to greater constitutional procedural safeguards in proceedings for indirect contempt because the judge has no personal knowledge of the misconduct. Those safeguards are entrenched in accepted principles of constitutional due process and are codified in K.S.A. 2016 Supp. 20-1204a(a). In Kansas, the court must file an order to appear and show cause why a judgment of indirect contempt should not be entered. The court must file an affidavit with this order that specifically sets forth the facts supporting the allegation of indirect contempt. K.S.A. 2016 Supp. 20-1204a(a), (d). The accused must have a reasonable opportunity to meet the charges of indirect contempt by way of defense or explanation, which includes right to be represented by counsel, the right to testify, and the right to call and cross-examine witnesses. In re Oliver, 333 U.S. at 274-75.

Noting that Ms. McDaniel was denied a number of these rights, the appellate court held that the judge further erred in summarily punishing Ms. McDaniel and thereby depriving her of procedural due process. The appellate court also found that the conviction was void due to noncompliance with statutory requirements in the journal entry that memorialized the conviction.

The district court judge was directed to vacate Ms. McDaniel’s conviction. Congratulations to Ms. McDaniel and Jess Hoeme for pursuing justice and obtaining this valuable appellate decision. If you or your loved one is facing a criminal charge or investigation or needs to appeal a criminal conviction or sentence, contact the criminal defense attorneys at Joseph, Hollander & Craft. With attorneys in Wichita (316-262-939), Topeka (785-234-3272), Lawrence (785-856-0143), and Overland Park (913-948-9490), we serve clients from the Oklahoma border to the Kansas City area.

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