### FILED 

### March24, 2015 In theOfficeofthe ClerkofCourt W AStateCourtofAppeals, Division [If

IN THE COURT OFAPPEALS OFTHE STATE OFWASHINGTON DIVISION THREE 

# I 1 STATE OF WASHINGTON, Respondent, J 

### v. J 

# 1 i RICHARD M. PAYNE, Appellant. 

# 1 • ) No. 31943-1-111 

### ) } ) ) 

### ) ) UNPUBLISHED OPINION 

### ) } BROWN, 

### J.

- Criminal defenseattorney David Hearrean separately appealsthe 

# t j Spokane SuperiorCourt's RCW7.21.010 civil contemptfinding issued during his**~** 1 J representation of Richard M. Payne in a morethan yearold prosecution forthree sex 

# I crimes. Mr. Hearrean contendsthetrial court erred in finding him in contemptfor his



### , failure to appearata presentment hearing and failed to place purge conditions in its contempt order. He argues here, as hedid before thetrial court, hisfailure to appear was unintentional and unavoidable based on a medical condition. Wedecidethe contempt order, including provision fora co-counsel in the continued criminal casetoavoid furthertrial delay, was properlywithin the trial courts
case managementdiscretion and the contempt orders were self-purging. Because Mr. Hearreanfailed to timely submita required declaration explaining his absence and failed to timely submit medical documentation satisfactoryto the court as ordered, we concludethetrial court did noterr in finding contempt. Even so, because Mr. Payne'sNo. 31943-1-111 State v. Payne

case was concluded with the assistance ofthe required co-counsel, and the contempt orders were self-purging, we conclude the matter is now moot. Accordingly, we dismiss this appeal. FACTS Mr. Payne's trial datewas set for July 29,2013 after multiple continuances. He successfully requested another continuance to August 19, 2013 dueto Mr. Hearrean's planned vacation beginning August 10. The court scheduled a presentment hearing on August 1, 2013 to enterfindings offacts and conclusions of law regarding prior rulings it made on the CrR 3.5 hearing, the ER 404(b) hearing, a motion to dismiss, a motionto vacate child hearsay, and a motion for additional discovery. The night before, Erica Hearrean, legal assistant and Mr. Hearrean'swife, e-mailed the court and the parties expressing her displeasure with the trial setting interfering with theirscheduled vacation. On July 29, 2013, Mr. Hearrean's doctor prescribed new medication for high blood pressure. During the afternoon hours ofJuly 31,2013, Mr. Hearrean claims he suffered side effects from the new medication including dizziness, chest pains and poor focus and memory. As a result, he was not present atthe August 1,2013 presentment hearing. Instead, attorney Erika Snyder attended the hearing and asked the courtfor a continuance based upon Mr. Hearrean's condition. The trial court directed Mr. Hearrean to write a declaration under penalty of perjury explaining the reason for his absencetogetherwith a doctor's note due at 3:00 that afternoon. When Mr. Hearrean failed to provide the declaration or a doctor's



### 2No. 31943-1-111 State v. Payne explanation, the court continued the matter another day. On August 2, 2013, Mr. Hearrean did not provide the requested declaration, but provided a letterfrom Dr. Donald Condon, stating Mr. Hearrean was advised to cease all workfortwo weeks due to medical concerns, butwithout explaining the concerns. On August 16, 2013, the court set a contempt show cause hearing. Mr. Hearrean appeared. By then, three letters from Dr. Condon had been received bythe court, but all three were vague about Mr. Hearrean's condition. Mr. Hearrean still had notfiled the requested declaration. The court noted, "The courtwas notified atthe last minute of Mr. Hearrean's inabilityto appear. Thereafter Mrs. Hearrean has staunchly and consistently advised the court Mr. Hearrean would not appear. Mr. Hearrean has not directly advised the court ofanything. No information given tothe court about his condition otherthan conclusory statements that he could not work." Report of Proceedings (RP) (Aug. 16,2013)at 37. The courtthen stated, 'Those statements, in conjunction with the very serious trial issues we have in this case, and thefact thatthis case, as we sit today, is approximately 14 months old, were ofconcern to the court." Id. On August 19, 2013, the court entered an order on the show cause hearing, finding Mr. Hearrean in contempt ofcourt under RCW7.21.010(1){b) and (1){d). The court ordered sanctions including that if Mr. Hearrean decided to continue as trial counsel, he must, at his expense, employ co-counsel who is equally prepared to trythis
case if Mr. Hearrean is unableto proceed. Mr. Hearrean associated Ms. Snyderto assistwith trial. Apparently the casewas continued again to September 30, 2013.



### 3No. 31943-1-111 State v. Payne Additionally, the trial court reserved its decision on recoupmentfor the State ofairline ticket costsfor witnesses scheduled atthe continued trial date. The record does not show any action on this reserved sanction. Mr. Hearrean filed this appeal on September 13, 2013. His reconsideration motion was denied by amended order on October 1,2013on the basis that itwas nottimelyfiled. Apparently trial finally began on September 30 and concluded in early October 2013 with ajuryverdict against Mr. Payne on all counts. See State v. Payne, no. 32096-1-111. On October 8,2013, our record shows Mr. Hearrean and his doctorfiled detailed declarations; the record does not showany court response to the detailed declarations orfurther action concerning Mr. Hearrean's contempt. Nothing in our record shows any remaining sanctions against Mr. Hearrean. ANALYSIS The sole issue on appeal is whetherthe trial court erred by abusing its discretion in finding Mr. Hearrean in contempt. Mr. Hearrean contends no intentional actjustified contempt and he did not have the means or ability to complywith the court's directive. Hefurther argues the contempt order is invalid because it did not contain a purge clause. We review a contempt order under RCW7.21.010 for abuse ofdiscretion. Moreman v. Butcher, 126Wn.2d 36, 40,891 P.2d 725 (1995). A court abuses its discretion when its decision is based on untenable grounds or is made for untenable
reasons. Id.



### 4

### No. 31943-1-111 State v. Payne
The trial courtfound Mr. Hearrean in contempt under RCW7.21.010(1)(b) and (1)(d). Subsection (1)(b) relates to "[d]isobedience ofany lawfuljudgment, decree, order, or process ofthe court" and subsection (1)(d) relates to U[r]efusal, without lawful authority, to produce a record, document, orother object." RCW 7.21.010. Under RCW 7.21.010(1), all acts must be "intentional." Mr. Hearrean claims he did not intentionally fail to provide the requested declaration or doctor's explanation. This claim, however, is not supported bythe record. Mr. Hearrean required a continuancefor a vacation, which the court granted. His wife then contacted the court about herfrustration with matters being scheduled close to theirvacation. Mr. Hearrean then developed a sudden illness and could not attend a presentment hearing. The court, reasonably, wanted a shortdeclaration explaining the situation forthe record and
a doctor's explanation ofthe medical condition. While overthe next multiple weeks three letters were drafted by Mr. Hearrean's doctor, none addressed what medical condition rendered Mr. Hearrean unable to draft a briefdeclaration. Mr. Hearrean continued to refuse to draftthe required declaration even to the day ofthe show cause contempt hearing. It is inconceivablewith all the communication shown in this record between the parties and the court that Mr. Hearrean did not know what was required of him. The trial court could reasonably conclude Mr. Hearrean chose notto provide the required documents. This satisfies the intent requirement in RCW7.21.010. Mr. Hearrean next contends he lacked the means orability to comply with the court's order. The law presumes an individual is capable ofperforming the actions



### 5No. 31943-1-111 State v. Payne required undera court order. In re Pers. RestraintofKing, 110Wn.2d 793, 804, 756 P.2d 1303 (1988). An affirmative defense to noncompliancewould be an inabilityto comply. Id. The party challenging a finding ofcontempt has the burden to show his or her inability to comply with the court order. Id. The contemnor "must offer evidence as to his inability to comply and the evidence must be ofa kind the court finds credible." Id. Up until the day before the presentment hearing, Mr. Hearrean appeared medically capable of representing Mr. Payne. The court then was notified Mr. Hearrean could not proceed, butthe courtwas unable to obtain specific information from Mr. Hearrean or Dr. Condon as to why. The trial court even told Mr. Hearrean what sort of evidence the court would find credible. Thetrial courtwanted a documentfrom Mr. Hearrean, Signed under penalty of perjurythat explained the situation. Mr. Hearrean did not provide thatdocument. The court wanted an explanation ofhis medical condition that rendered him unable to continuefora time period. Thiswas not provided. Because the law presumes an individual is capable ofperforming the actions required under a court order, Mr. Hearrean was required to provide more than bald assertions that he cannot comply. King, 110Wn.2d at 804. Mr. Hearrean did not meet his burden of proof in showing he lacked the means or ability to comply with the court's order. Mr. Hearrean next argues the contempt order is invalid because it does not contain a purge clause. A judge may imposesanctions after a contemptfinding under RCW7.21.020. Thesanctions may be punitive (sanctions imposed to punish) or remedial (sanctions imposed to coerce performance). RCW7.21.010(2) and (3). In

6No. 31943-1-111 State v. Payne general, sanctions "'must contain a purge clause underwhich a contemnor has the abilityto avoid afinding ofcontempt and/or incarceration for non-compliance.'" In re InterestofRebecca 

### K., 101 Wn. App. 309,314,2 P.3d 501 (2000) (quoting State ex rei. Shaferv. Bloomer, 94 Wn. App. 246, 253, 973 P.2d 1062 (1999)). Here, Mr. Hearrean was ordered to retain co-counsel "at his own expense" "to try the case if Mr. Hearrean cannot do so" to avoid a delay in the trial in the event Mr. Hearrean became ill again. RP at 61. This sanction entailed a specific condition expiring atthe end oftrial. Indeed, the matter is now over and the sanction is no longer in effect; it has been purged. Accordingly, the trial court properly imposed sanctions under RCW7.21.010 and properly set atime limit (ortime ofpurge) atthe end oftrial. Given all, the trial court had tenable grounds to find Mr. Hearrean in contempt of court and did not abuse its discretion. Moreover, we note this appeal is moot. A matter is mootwhen a court can no longer provide effective relief. State v. Ross, 152Wn.2d 220,228,95 P.3d 1225 (2004). Our record shows the sanctions were self-purging at the completion ofthe trial. Mr. Hearrean does not provide argument concerning recoupment ofcosts. Additionally, our record shows a declaration from Mr. Hearrean drafted in lateAugust. Although a trial court stamp showing itwas filed is not on the front page, it is assumed the declaration was broughtto the court's attention. Our record also shows a later-filed detailed declaration from Dr. Condon. This furthershows the matter was purged. Since there is no additional reliefthis court can provide, the matter is moot.



### 7No. 31943-1-111 State v. Payne
Dismissed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 

### 2.06.040.

Brown, 

### J. WE CONCUR:

# Sid~/tt= Lawrence-Berrey, 

### J.

8