13, 2018 Session
from the Circuit Court for Knox County No. 125184 Gregory S.
appeal arises from three post-divorce petitions for criminal
contempt against Father in which Mother asserts over 200
separate counts. The principal issues on appeal pertain to
the Double Jeopardy Clause of the United States and Tennessee
Constitutions. Following a three day trial on the first
petition, Father was found to be in criminal contempt of 60
counts. After Mother filed her second petition in which she
alleged 133 additional counts of contempt, the parties
appeared in court to announce a settlement pursuant to which
Father would plead guilty to 10 unspecified counts with the
remaining counts to be dismissed. Without advising and
questioning Father before accepting a plea as Tenn. R. Crim.
P. 11(b) requires, the trial court approved the agreed order,
finding Father in criminal contempt of 10 unspecified counts.
After Mother filed her third petition for criminal contempt,
Father filed a "Motion to Alter or Amend and/or Rule
60.02 Motion to Set Aside Most of the Criminal Contempt
Findings and Holdings in this Cause, " contending all
but two of the 60 initial convictions were constitutionally
flawed. As for the first 58 convictions, Father argued the
notice of criminal contempt failed to specifically state
essential facts concerning each ground as required by Tenn.
R. Crim. P. 42(b). With regard to Father's guilty plea to
10 additional counts, Father contended the plea and sentence
were fatally flawed because the trial court failed to
ascertain whether Father's guilty plea was knowingly and
voluntarily entered as Tenn. R. Crim. P. 11(b) requires. The
trial court vacated 55 of the 60 initial convictions, finding
the notice of criminal contempt failed to state essential
facts as required by Tenn. R. Crim. P. 42(b); however, the
order that followed held Father in criminal contempt for
sending a text to Mother at 10:11 a.m. on June 20 for which
Father had been acquitted following trial. The court also set
aside Father's guilty plea to 10 of the 133 additional
counts in the second petition because the court failed to
advise and question Father before accepting a plea as
required by Tenn. R. Crim. P. 11(b). The trial court also
ruled, over Father's objections, that Mother could
prosecute Father on all 133 counts in the second petition. In
this appeal, Father contends the trial court violated the
constitutional prohibitions against double jeopardy by (1)
finding Father guilty of a count of criminal contempt for
which he had been acquitted following trial, and (2) allowing
Mother to prosecute her second petition. Because double
jeopardy prohibits a prosecution after an acquittal on the
same count, we vacate Father's conviction for criminal
contempt for sending a text to Mother at 10:11 a.m. on June
20. As for allowing Mother to prosecute all 133 counts in her
second petition, the agreed order, in which Father pled
guilty to 10 counts, failed to specifically identify any of
the counts for which Father pled guilty or any of the counts
for which he was acquitted; therefore, jeopardy did not
attached to any of the 133 counts. Accordingly, we affirm the
trial court's decision allowing Mother to prosecute the
133 counts in her second petition.
R. App. P. 9 Interlocutory Appeal; Affirmed in Part, Reversed
in Part, Vacated in Part and Remanded
G. Sobieski, Diane M. Messer, and Caitlin Elledge, Knoxville,
Tennessee, for the appellant, Joseph Charles Marlow.
W. Shepherd and D. Chris Poulopoulos, Maryville, Tennessee,
for the appellee, Amy Brasfield Marlow.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Charles D. Susano Jr. and John W. McClarty
G. CLEMENT JR., P.J., M.S.
Marlow ("Mother") and Joseph Marlow
("Father") divorced on October 2, 2012, and a
Permanent Parenting Plan was incorporated into the
parties' Final Decree of Divorce.
19, 2014, Mother filed a petition for criminal contempt
("Petition 1"), alleging Father violated the following
provision in the permanent parenting plan:
Both parents are entitled to be free of derogatory remarks
made about such parent or such parent's family by the
other parent to or in the presence of the child. T.C.A.
1 was tried over three days on September 8, 9, and 15, 2015.
At the conclusion of the trial, the court found Father guilty
of 60 separate counts of criminal contempt. In its oral
ruling, which was incorporated into the trial court's
final order of October 15, 2015, the trial court identified
each communication with specificity that constituted an act
of contempt. Five of the 60 counts for which Father was found
in criminal contempt pertained to Father's communications
on June 20, 2015. Specifically, the court found Father guilty
of criminal contempt for sending texts to Mother at 9:53
a.m., 11:07 a.m., 11:26 a.m., 11:42 a.m., and 8:25 p.m. One
of the counts for which Father was acquitted was for a text
sent to Mother at 10:11 a.m. on June 20, 2015, which is
significant for reasons discussed below.
trial court sentenced Father to ten days for each offense,
for a total of 600 days of incarceration; however, the court
ordered that Father serve eight days, with 592 days
suspended, provided Father complied with the court's
orders in the future.
interim, Mother filed a Petition to Modify Permanent
Parenting Plan and on August 19, 2014, the parties entered
into a Temporary Parenting Plan that read in pertinent part:
[Father] is enjoined and restrained from sending email and
texts to [Mother] with offensive language about [Mother], for
the purpose to harass [Mother], or without a legitimate
purpose of communication about the children.
February 5, 2016, Mother filed her second petition for
criminal contempt which contained 133 counts ("Petition
2"). Instead of trying the issues, the parties
came to an agreement regarding Petition 2, and presented an
agreed order to the trial court pursuant to which Father
would plead guilty to 10 unspecified counts, with a sentence
of 10 days for each count, and the remaining counts would be
dismissed. The agreement additionally provided that, in
exchange for Father's guilty plea, Father's 100-day
sentence for the 10 unspecified violations would be
suspended. The agreed order also provided that Father's
592-day suspended sentence arising from Petition 1 would be
held in abeyance subject to his strict compliance with court
the parties agreed to modifications to the parenting plan,
which included prohibiting Father from visiting the children
at school without Mother's written consent and limiting
Father to three phone calls per week with the children. The
agreement also prohibited Father from coming within
"visual distance" of Mother's residence and
five other specified locations without Mother's express
written consent. The trial court approved the parties'
agreed order, which included Father's guilty plea;
however, the court did not conduct a plea colloquy as
required by Tenn. R. Crim. P. 11 to determine if Father's
guilty plea was knowingly, voluntarily, and intelligently
entered. The agreed order was entered on May 26, 2016.
7, 2016, Mother filed a third petition for contempt
("Petition 3") alleging thirteen counts against
Father, most of which concerned alleged violations of
provisions in the May 2016 agreed order. Father filed an
answer to Mother's petition and also filed a