Tracy Rose Baker v. Jeffrey D. Baker

Citation: Not availableDocket: M2010-01806-COA-R3-CV

Court: Court of Appeals of Tennessee; March 8, 2012; Tennessee; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Tracy Rose Baker appeals an August 2010 order from the Chancery Court revoking her probation for eighteen counts of criminal contempt, resulting in a maximum sentence of 180 days. In an April 2010 Agreed Order, she pleaded guilty to these counts, with the sentence suspended and probation granted under specific conditions. Following a violation petition from her ex-husband, Jeffrey D. Baker, the court found her in breach of probation terms. 

Baker contends that the Agreed Guilty Plea Order is void, arguing the trial judge did not conduct a proper hearing as mandated by Boykin v. Alabama and Tennessee Rule of Criminal Procedure 11(b). Although the record indicates a possible failure to engage in the required colloquy, it does not definitively support this claim, thus the order is not void on its face. However, the appeal also questions the reasonableness of the 180-day confinement for the probation violation, which the court finds excessive relative to the circumstances. Consequently, the sentence is modified to a total confinement of 30 days. 

The background includes a contentious divorce finalized on January 12, 2009, where Mother was granted primary custody of three minor children, with Father receiving specified parenting time. Subsequent to the divorce, Father filed multiple petitions for orders of protection against Mother, citing harassment and threats, leading to a permanent injunction against her.

An ex parte temporary restraining order was issued against Mother, leading to an order of protection on June 10, 2009. On May 21, 2009, Father filed a third post-divorce petition for custody modification and criminal contempt, alleging multiple violations by Mother of a permanent injunction and the Final Decree of Divorce. A temporary restraining order was issued against Mother on May 22, 2009, prohibiting her from discussing the petition with the children. Father subsequently filed a second petition for criminal contempt on August 26, 2009, citing eleven violations of the protection order. 

On November 19, 2009, Mother countered with a petition against Father, alleging thirty-eight violations of the Final Decree due to his failure to exercise parenting time and claiming a significant change in circumstances justifying a parenting plan modification. Father responded on December 11, 2009, and later filed additional contempt petitions in December 2009 and January 2010, alleging multiple violations of the protection order.

A hearing was scheduled for April 21, 2010, concerning the various contempt and custody modification petitions. During this time, Mother sought an emergency restraining order against Father, which was denied on February 24, 2010, when Chancellor Tom Gray recused himself. Judge Carol Soloman was appointed to take over the case. Mother motioned for Judge Soloman’s recusal, citing a conflict of interest, but this request was denied. 

On April 16, 2010, an Agreed Order was entered, designating Father as the primary residential parent and modifying the parenting schedule in the children's best interests. Mother pled guilty to eighteen counts of criminal contempt and was sentenced to one hundred and eighty days in jail, to be served on probation with conditions. The document also notes that changes to the Code of Judicial Conduct would take effect on July 1, 2012.

Mother pled guilty to eighteen counts of criminal contempt as outlined in the April 16 Agreed Order, resulting in a sentence of 180 days in Sumner County Jail, with 10 days attributed to each act. The specific violations include:

1. Violating the Order of Protection from June 10, 2009, by contacting Mr. Baker on four occasions on March 1, 2010, expressing a desire to reconcile.
2. Harassing Mr. Baker on December 29, 2009, by driving by and making an obscene gesture.
3. Having their minor child send a text to Mr. Baker on December 28, 2009, urging him not to put Mother in jail.
4. Informing their children on December 25, 2009, that Mother would go to jail and blaming Mr. Baker for it.
5. Making derogatory comments about Mr. Baker to their child Alexandria on December 23, 2009.
6. Trying to persuade their children to facilitate communication with Mr. Baker on December 25, 2009.
7. Directing minor child Lillian to call Mr. Baker on July 28, 2009, to express Mother’s desire to reconcile.
8. Sending a text to Mr. Baker from an out-of-state number on July 8, 2009, indicating emotional distress regarding the relationship.
9. Having a child communicate Mother's intentions to Mr. Baker on July 10, 2009.
10. Continuing harassment by sending a photo of herself to Mr. Baker via her brother's phone on August 13, 2009.
11. Acknowledging a call made to Mr. Baker on August 18, 2009, which he did not answer.
12. Engaging in confrontational behavior at a soccer game on August 25 and 24, 2009, including derogatory remarks and attempts to provoke Mr. Baker.

Each act represents a clear violation of court orders, leading to the agreed-upon sentence.

On August 25, 2009, at approximately 7:00 p.m., during a soccer game, the mother (referred to as "Mother") approached Mr. Baker while he was talking with their minor child, Alexandria. A permanent injunction against Mother was issued on April 20, 2009. In violation of this injunction, Mother contacted Mr. Baker 18 times between May 18 and 19, 2009. The agreed order outlined specific probation terms for Mother, including compliance with treatment by Dr. Scott West, adherence to medication, attendance at appointments, and prohibition from discussing litigation with the minor children. Mother was also required to follow a June 10, 2009 order of protection and timely pay child support.

Additionally, Mother was ordered to pay $45,000 in attorney's fees to Father, with a lien placed against the marital residence. The marital home was to be sold, and the proceeds divided equally between the parties, with Mother's attorney fees deducted from her share. Mother's counter-petition was dismissed with prejudice, and her attorney withdrew on the same day, with no appeal taken from the April 16, 2010 order.

On July 20, 2010, Father filed a petition to revoke Mother's probation and for an ex parte order to discontinue her visitation due to alleged violations, including harassment and failure to attend counseling. A temporary restraining order was issued on July 21, 2010, preventing Mother from exercising parenting time. Following a hearing on August 19, 2010, the court found Mother in violation of her probation, imposing a 180-day jail sentence and ordering her to pay $6,550 in attorney's fees to Father. Mother timely appealed this order.

In her appeal, Mother contests three court orders: the denial of her motion for recusal, the April 16, 2010 agreed order finding her in contempt and placing her on probation, and the August 2010 order revoking her probation. She claims the denial of her recusal motion was erroneous, arguing that an appearance of impropriety existed due to Father’s attorney having previously represented the judge, although no supporting affidavits were provided for her motion.

During the March 31, 2010 hearing regarding a motion for recusal, Judge Soloman disclosed that Scott Parsley, the opposing party, had represented her in her divorce and property dispute in the late 1990s. She stated that after consulting the Board of Judicial Review and other authorities, she believed her disclosure allowed her to hear any case involving him, denying the motion for recusal. The court expressed disagreement with her assertion, emphasizing that mere disclosure does not eliminate reasonable doubts about a judge's impartiality. The court cited relevant case law affirming litigants' entitlement to an impartial court and underscored the importance of public confidence in judicial integrity. It noted that recusal is warranted if a judge harbors any doubt about their impartiality or if an ordinary person would have reasonable grounds to question the judge's neutrality. The court ultimately found no abuse of discretion in Judge Soloman's denial of the motion based on the disclosed relationship. However, it allowed for a renewed motion for recusal should new and valid grounds arise in the future.

Mother argues that Father's attorney functioned as an "unsworn captive private prosecutor," which she claims is grounds for overturning the convictions and sentences for criminal contempt. Referencing Wilson v. Wilson, the Supreme Court of Tennessee affirmed that no constitutional or ethical standards disqualify a private attorney from prosecuting contempt actions related to civil court order violations. The court highlighted the impracticality of expecting district attorneys to handle such contempt cases. Mother contends that the ruling in State v. Culbreath modifies Wilson's applicability; however, the court finds Culbreath's circumstances distinct and not undermining Wilson's principles. 

Additionally, Mother asserts that her guilty pleas to eighteen counts of criminal contempt were obtained through a constitutionally flawed process, rendering them void and making the subsequent revocation of her probation and sentencing unenforceable. The court references State v. Mackey, which outlines mandatory procedures for accepting guilty pleas, aligned with the U.S. Supreme Court's standards in Boykin v. Alabama and Tennessee Rule of Criminal Procedure 11(b). These procedures require the trial judge to personally inform the defendant of their rights and the implications of a guilty plea, including understanding the charges, penalties, rights to counsel, trial, and potential immigration consequences.

Before accepting a plea of guilty or nolo contendere, the court must personally address the defendant in open court to confirm that the plea is voluntary and not coerced by force, threats, or unauthorized promises. The court is also required to ascertain whether the plea stems from discussions between the defendant and the district attorney or their attorney. Additionally, the court must establish a factual basis for the plea before entering judgment, as mandated by Tennessee Rule of Criminal Procedure 11(b). The repeated use of "shall" in the rule emphasizes the court's obligation to engage in this colloquy and make necessary determinations.

Tennessee law further stipulates that a trial court must inform the defendant of potential enhanced penalties due to prior convictions or other factors, which could affect future sentences. Failure to comply with these procedural safeguards, as illustrated in State v. Ream, where the juvenile court's acceptance of a guilty plea was deemed inadequate, can lead to a reversal of the plea. The appellate court in Ream rejected the argument that criminal contempt proceedings lack ordinary criminal safeguards, affirming that constitutional rights, including the presumption of innocence and the requirement for proof beyond a reasonable doubt, apply to all criminal charges, including criminal contempt.

Criminal contempt is recognized as a crime that requires constitutional protections, as stated by the U.S. Supreme Court. In contempt proceedings, judges must adhere to Rule 11(b), which mandates personal engagement with the defendant in a courtroom setting and individualized determinations before accepting a guilty plea, including appropriateness of the sentence. 

The mother appealed the order revoking her probation and imposing a 180-day sentence but failed to appeal the Agreed Guilty Plea Order for eighteen counts of criminal contempt in a timely manner. As a result, her challenge to the Agreed Guilty Plea Order is classified as a collateral attack, which is not a direct appeal. A collateral attack can only be made under limited grounds, such as lack of subject matter jurisdiction or personal jurisdiction, neither of which the mother claims. Instead, she questions the validity of her guilty plea and sentence on constitutional grounds, specifically the Boykin criteria, which requires a clear understanding of the plea's implications.

The court notes that there is no precedent for such a collateral attack on a guilty plea in this context. Although the mother did not file a direct appeal to raise a Boykin challenge, the option of seeking relief through a motion under Tennessee Rule of Civil Procedure 60.02 is not presently before the court. Typically, challenges to constitutional issues post-judgment are pursued through post-conviction relief petitions, which the mother appears to have done in a separate case, but that is not relevant to the current appeal.

Mother's guilty plea may not have adhered to Boykin or Tennessee Rule of Criminal Procedure 11(b), but this issue is not clearly evident in the record, which means the Agreed Guilty Plea Order remains valid and cannot be successfully challenged. Mother has filed a timely direct appeal concerning her 180-day confinement sentence for probation violation, which is currently under review by the Court of Criminal Appeals in Case Number M2011-01381-CCA-R3-PC, scheduled for argument on March 21, 2012. 

A void judgment is one that is clearly invalid on its face, whereas a voidable judgment is valid until challenged and requires additional evidence to prove its invalidity. The document emphasizes that criminal contempt serves to uphold the law's dignity and public authority, contrasting it with civil contempt, which aims to enforce private rights. In cases of criminal contempt, the court has discretion in sentencing and may revoke probation if conditions are violated, thereby enforcing the original sentence.

The court possesses discretionary authority to impose a lesser sentence than the original upon revoking probation, contingent on the case's circumstances. The determination of consequences for probation violations is a separate discretionary exercise. In reviewing the trial court's order mandating that Mother serve her full 180-day sentence, the court noted her emotional struggles due to divorce and parenting stress, yet acknowledged her violations of probation terms, including inappropriate communication with Father, missed mental health counseling appointments, and violating probation with text messages to her children. The court emphasized that while incarceration is warranted, Mother's urgent need for mental health counseling is a significant factor. The court concluded that the original 180-day sentence was excessive given her violations and modified it to a 30-day confinement, affirming in part and modifying in part the trial court's judgment. Each party is responsible for their attorney's fees and costs incurred on appeal, and costs are to be shared equally.