Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40470-2-II

                             Respondent,                       Consolidated with:

       v.                                                        No. 40790-6-II

MICHAEL A. HOLCOMB,                                        UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Michael A. Holcomb appeals a contempt order finding him in contempt at 

his sentencing hearing and imposing a sanction of 60 days' confinement.  He asserts that the 

sentencing court failed to follow the statutory procedure required under RCW 7.21.050(1) by

refusing him an opportunity to "speak in mitigation of the contempt" and by failing to impose 

sanctions immediately.  In his Statement of Additional Grounds for Review1 (SAG), he further 

asserts that he was denied release despite posting bail.  We affirm.

1 RAP 10.10. 

No. 40470-2-II/
No. 40790-6-II

                                            FACTS

       In November 2009, the State charged Holcomb with possession of heroin.  Holcomb 

pleaded guilty.  He remained out on bail until his March 1, 2010 sentencing hearing.  

       The case proceeded to sentencing on March 1.  When defense counsel asked for a short 

continuance, the sentencing court2 questioned why Holcomb, who had nine prior offenses, was 

not already in custody3 and why his bail had not been increased following his guilty plea.  

Although the sentencing court agreed to continue the sentencing hearing, it increased Holcomb's 

bail to $25,000 and remanded Holcomb into custody.

       The sentencing hearing reconvened on March 8.  After hearing the parties'

recommendations, the sentencing court asked Holcomb if he had anything to say.       Holcomb's 

response to the court included the use of profanity three times, despite the trial court's repeated 

admonitions to Holcomb that his behavior was in contempt of court.     The sentencing court had 

Holcomb removed from the courtroom.  Later that day, Holcomb returned to court, and defense

counsel advised the sentencing court that Holcomb was asking to "purge the contempt," and 

wanted to apologize for his "outburst."  Verbatim Report of Proceedings (VRP) (Mar. 8, 2010) at 

9.  Holcomb then "apologize[d] for [his] outburst."  VRP (Mar. 8, 2010) at 9.  After briefly 

discussing some scheduling issues, the sentencing court announced that it was setting a hearing 

for the next morning to "determine what sanction, if any, to impose" for the contempt.  VRP

(Mar. 8, 2010) at 10.  Defense counsel responded, "Like I said, for the record, he is willing to 

2 A different judge accepted Holcomb's guilty plea.
3 The State explained that Holcomb had "[p]osted bail." VRP (Mar. 1, 2010) at 3.

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purge it at this time and he has apologized to the Court."  VRP (Mar. 8, 2010) at 10.  The 

sentencing court responded by repeating the date and time of the next hearing.

       The next day, the sentencing court acknowledged that the hearing was to address the 

contempt issue and stated, "The statute requires that the defendant in these kinds of situations be 

given an opportunity to speak in mitigation.  So, this is Mr. Holcomb's opportunity, [defense 

counsel]."  VRP (Mar. 9, 2010) at 11.  Defense counsel explained that Holcomb had been angry 

in part because defense counsel had not explained the bail process following the guilty plea and in 

part because he would not be able to "say goodbye" to his new wife.  VRP (Mar. 9, 2010) at 12.  

He also stated that Holcomb was upset by the 24-month sentence.  The sentencing court then 

asked Holcomb if he wanted to say anything and Holcomb again apologized for his "outburst."  

VRP (Mar. 9, 2010) at 13.

       The  sentencing court issued written findings of fact and conclusions of law on the 

contempt issue.  The findings stated that Holcomb had engaged in inappropriate behavior before a 

crowded courtroom despite the sentencing court's admonishment.  Although the sentencing court 

acknowledged that Holcomb had apologized for his behavior, it found that he had committed 

"two acts of contempt" and ordered him to serve 60 days in jail prior to entry of the judgment and 

sentence.4  The sentencing court also stated that Holcomb had been "provided an opportunity to 

speak in mitigation as required by RCW 7.21.050."    Clerk's Papers at 25.  Holcomb appeals the 

contempt order.5  

4 It also ordered that Holcomb would not receive credit for the 60 days against his sentence. 

5 While this appeal was pending, the sentencing court also denied Holcomb's motion to withdraw 

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                                          ANALYSIS

                                      I.  Contempt Issues

       RCW 7.21.050(1) provides:

       The judge presiding in an action or proceeding may summarily impose either a 
       remedial or punitive sanction authorized by this chapter upon a person who 
       commits a contempt of court within the courtroom if the judge certifies that he or 
       she saw or heard the contempt.  The judge shall impose the sanctions immediately 
       after the contempt of court or at the end of the proceeding and only for the 
       purpose of preserving order in the court and protecting the authority and dignity of 
       the court.  The person committing the contempt of court shall be given an 
       opportunity to speak in mitigation of the contempt unless compelling 
       circumstances demand otherwise.     The order of contempt shall recite the facts, 
       state the sanctions imposed, and be signed by the judge and entered on the record.

(Emphasis added).  Holcomb argues that the sentencing court erred in imposing contempt 

sanctions without allowing him the opportunity to speak in mitigation and in failing to impose 

sanctions immediately after finding him in contempt or by the end of the proceedings in which the 

contempt occurred. We disagree.

       The sentencing court was not untimely in formally entering sanctions the day after the 

contempt occurred, after giving Holcomb a full opportunity to speak in mitigation. See State v. 

Hobble, 126 Wn.2d 283, 296, 892 P.2d 85 (1995) (imposing contempt sanctions one week after 

contempt occurred during trial proceedings was "timely" under RCW 7.21. 050(1)).  The record

also shows that the sentencing court gave Holcomb ample opportunity to speak in mitigation; first

his guilty plea prior to entry of the judgment and sentence and a request for a "furlough." VRP 
(May 24, 2010) at 4.  After the sentencing court filed the judgment and sentence on May 24, 
2010, Holcomb filed a second notice of appeal.  We consolidated the notices of appeal.  Holcomb 
does not, however, raise any issues related to the judgment and sentence or the order denying his 
motion to withdraw his guilty plea.  

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on the day of the contempt, after allowing Holcomb the opportunity to calm down, and then the 

following day before entering the actual contempt order.

       We note that RCW 7.21.050(1) does not expressly require that the court allow the person 

subject to the contempt order to speak in mitigation immediately following the contemptuous act.

It merely requires that the person have an opportunity to speak before sanctions are formally 

imposed,  unless there are compelling circumstances.  Furthermore, compelling circumstances 

clearly existed here where Holcomb engaged in several outbursts in a short period of time during 

open court.  Some delay in offering Holcomb the opportunity to speak  in mitigation was 

appropriate. We hold that the sentencing court complied with RCW 7.21.050(1)'s requirements.

                                         II.  Bail Issue

       In his SAG, Holcomb appears to assert that the sentencing court denied him release 

despite his having posted the required $25,000 bail. Although the record suggests that Holcomb 

may have attempted to request release on bail, there is nothing in the record before us showing 

that he posted the required bond.  Because this issue involves matters outside the record, we 

cannot consider it on direct appeal.  State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 

(1995).

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       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                                   Johanson, J.
We concur:

               Armstrong, P.J.

                   Hunt, J.

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