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Portage County criminal contempt cases reversed
TRACEY BLAIR
Legal News Reporter
Published: December 31, 2020
A Portage County Juvenile Court abused its discretion in finding three counseling employees who failed to show up to testify for a juvenile rape hearing in criminal contempt of court, the 11th District Court of Appeals recently found.
The underlying case involves a delinquent complaint of rape filed against a minor, D.S.S.
A motion was filed to allow D.S.S. and the minor victim, M.H., to have contact with each other.
In preparation for a hearing on the motion, the guardian ad litem for M.H. served subpoenas to three employees of Children’s Advantage, where M.H. was believed to have received counseling services.
However, employees Krysta Gattozzi, Kelly Szydlowski and Brian Pavelko did not appear at the February 2020 hearing at the direction of Children’s Advantage’s executive management.
A letter from Children’s Advantage was sent to the guardian ad litem notifying them that they would not appear, but it was not received until after the hearing. The trial court issued an order to show cause against each employee. At each hearing, the court found each employee in contempt.
Gattozzi was sentenced to 10 days in jail and assessed a $250 fine and court costs. The jail sentence and $225 of the fine were suspended on the condition that she obey all court subpoenas issued in Portage County for one year.
She appealed her sentence and filed a stay of execution, which the lower court granted.
Citing Cleveland v. Goodman (2020-Ohio-2713) and Camp-Out, Inc. v. Adkins (2007-Ohio-3946), the appellate court first noted, “Any sanction imposed for civil contempt must afford a contemnor the right to purge himself of the contempt.’ * * * The punishment for criminal contempt, by contrast, ‘is “punishment for the completed act of disobedience” and usually consists of fines and/or an unconditional period of incarceration.’”
Eleventh District Judge Cynthia Westcott Rice noted in her opinion that in distinguishing between civil and criminal contempt, the courts have most often considered the character and purpose of the contempt sanctions.
“Here, the court’s sentence, except $25 in fines, was suspended ‘on the condition that [Ms. Gattozzi] obey all court subpoenas issues in Portage County, Ohio, to any court, within the next year,’ “ Rice wrote. “In this, the court was not asking her to do something she had refused to do. She did not have the ability to impact any of her sentence by obedience; only by further violation could her sentence be reinstated. Moreover, just after sentencing her, the court expressly dismissed her from future proceedings, acknowledging she did not have any pertinent information. Thus, she was not afforded the opportunity to “purge [herself] of the contempt” indicating this sentence was intended to be punitive.
“This is further evidenced by the language of the court post-sentencing: ‘I cannot and will not endorse anybody not appearing for a subpoena that’s been duly served and again, I understand your situation, ma’am, but I’ll tell you what, the executive involved in this should be condemned for what they did to you and what they’ve done to the court, and you can take that message back to them, too. I’m pretty offended by the whole thing * * *.’ The court also suggested that she ask Children’s Advantage to reimburse her for the fine imposed.
“In light of this, we agree with Ms. Gattozzi that the court intended to punish her for her failure to comply with a subpoena, not compel her immediate compliance, and thus the finding of contempt was criminal in nature, not civil.”
Rice added the trial court made no finding of guilt beyond a reasonable doubt and did not address the element of intent.
“No testimony or evidence was presented to show that Ms. Gattozzi acted intentionally; indeed, Ms. Gattozzi consistently argued that she did not intend to defy the court, but would have obeyed had she known she was still required to attend despite her employers’ instructions to the contrary,” Rice said. “Accordingly, the trial court erred in finding her guilty of indirect criminal contempt of court.”
Appellate judges Timothy P. Cannon and Matt Lynch concurred Gattozzi’s argument had merit.
The case is In re D.S.S., 2020-Ohio-5386.
The 11th District made similar findings in the appeals of Szydlowski and Pavelko.