Clark County Musings.
Susan K. Carpenter, Public Defender, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant.
Jeffrey A. Modisett, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for appellee.
OPINION
RUCKER, Judge.
After the trial judge sentenced defendant-appellant William Holly to serve seventyeight years for attempted murder, rape, and robbery, Holly referred to the judge by using profanity. The trial judge found Holly in direct contempt of court and sentenced him to an additional one year term of imprisonment. Holly now appeals contending the one year sentence is constitutionally infirm and that the conviction should be reversed and this cause remanded for trial by jury.
The Sixth Amendment to the United States Constitution, applied to the States through the Fourteenth Amendment, guarantees to defendants in criminal cases the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), reh'g denied. While petty contempts like other petty crimes may be tried without a jury, serious criminal contempts must be tried with a jury if the defendant insists on this mode of trial. Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). The determination of the seriousness of a crime is normally heavily influenced by the penalty authorized by the legislature. Id. However where no legislative penalty is specified and sentencing is left to the discretion of the judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be judged by the penalty actually imposed. Id. There is a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are considered serious crimes and those carrying a sentence of six months or less are considered petty crimes. Id. Thus sentences up to six months may be imposed for criminal contempts without guilt or innocence being determined by a jury. Id. Sentences exceeding
six months may not be imposed absent a jury trial or waiver thereof. Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966).
The one-year sentence imposed in this case exceeds by six months the length of penalty characterizing a "petty offense" for Sixth Amendment purposes. Because the sentence was imposed without the benefit of a trial by jury it is erroneous. However we disagree with Holly's contention that his conviction should be reversed and this cause remanded for trial by jury. There is no question that the trial court properly found Holly in contempt of court. Holly's outburst which was specifically directed to the trial judge undermined the authority of the judge and the dignity of the courtroom. Accordingly, summary proceedings for Holly's direct contempt were appropriate. Hopping v. State, 637 N.E.2d 1294 (Ind.1994), cert denied, 513 U.S. 1017, 115 S.Ct. 578, 130 L.Ed.2d 493. The only error here was the sentence the trial court imposed. Under similar circumstances we have remanded the cause to the trial court for resentencing. See e.g. Matter of Craig, 571 N.E.2d 1326 (Ind.Ct.App.1991) (cause remanded to trial court for resentencing where 270-day sentence for contempt violated due process); See also Cheff, 384 U.S. at 379-85, 86 S.Ct. at 1526 (nothing restricts the power of a reviewing court in appropriate circumstances to revise sentences in contempt cases tried with or without juries). Therefore Holly's conviction for contempt is affirmed; but the cause is remanded with instructions to the trial court to impose a sentence not exceeding six months.
Judgment affirmed and cause remanded.
SHARPNACK, C.J., and HOFFMAN, J., concur.
************************************************************************************** Punishment for contempt is generally within the sound discretion of the trial court. Hopping v. State, 637 N.E.2d 1294, 1298 (Ind.1994), cert. denied, 513 U.S. 1017, 115 S.Ct. 578, 130 L.Ed.2d 493. We have previously noted that Ind.Code 34-4-7-6, which limited punishment to a fine of $500.00 and/or imprisonment of no more than three months, has been repealed. See Contempt of Steelman, 648 N.E.2d 366, 369 (Ind.Ct.App.1995); Matter of Craig, 552 N.E.2d 53, 56 (Ind.Ct.App.1990) . Now, in the absence of the statute, the power to punish contempt is limited by reasonableness. Id. ( citing Green v. U.S., 356 U.S. 165, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958) (holding that the lack of statutory limitations does not give the trial court "unbridled discretion," as the trial court has a "special duty to exercise such an extraordinary power with the utmost sense of responsibility and circumspection")).
Our supreme court has held that a sentence for contempt shall be reviewed to determine whether it is manifestly unreasonable. Hopping, 637 N.E.2d at 1297. In order to find a sentence manifestly unreasonable, we must determine whether the sentence is appropriate given the particular offense and the character of the offender. Id.
In assessing the reasonableness of a sentences for contempt, federal appellate courts have compared the sentences with sentences for the like offenses of perjury, obstruction of justice, and civil contempt. See e.g., U.S. v. Gracia, 755 F.2d 984, 990 (2dCir.1985) (comparing sentences for criminal contempt to perjury and holding that "it would be anomalous to encourage those who would otherwise remain silent to choose, instead, to lie"); U.S. v. Gomez, 553 F.2d 958, 959 (5th Cir.1977) and U.S. v. Leyva, 513 F.2d 774, 780 (5th Cir.1975) (both holding that a two year sentence was appropriate after comparing the sentences for the offenses of perjury (five years), obstruction of justice (five years), and civil contempt (eighteen months) to the sentence imposed by the trial court); U.S. v. Patrick, 542 F.2d 381, 393 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977) (holding that the four year sentence imposed by the district court was appropriate as it was comparable to the five year sentence for perjury or obstruction of justice).
Even though Art. 1, § 16 does not require comparative proportionality analysis, our supreme court has encouraged appellate counsel to conduct comparative proportionality review of all death sentences. See Stevens v. State, 691 N.E.2d 412, 437 (Ind.1997), cert.
denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Furthermore, in Conner v. State, 626 N.E.2d 803, 806 (Ind.1993), the court compared the defendant's six year sentence for dealing in a substance represented to be a controlled substance with the maximum three year sentence for dealing marijuana. The court determined that "[s]uch a doubling of the penalty is out of proportion to the nature of the offense." Id.
We find the comparative analysis used in the above-mentioned cases to be appropriate in this case. A review of our criminal code discloses that perjury and obstruction of justice, offenses comparable to criminal contempt, are Class D felonies. See Ind.Code § 35-44-2-1; Ind.Code § 35-44-3-4. The possible sentence for a Class D felony ranges from a minimum of six months to a maximum of three years. Ind.Code § 35-50-2-7. Under the circumstances of the present case, we hold that the trial court's sentence, which is out of proportion with the comparable sentences for like offenses, is manifestly unreasonable. We see no reason based upon general deterrence to impose a greater punishment for Gardner's silence than for lying to the trial court. We hold that a sentence of three years is proportioned to the nature of the offense of criminal contempt in this case. In so holding, we observe that this sentence is adequate both to vindicate the authority of the trial court and to punish Gardner for his contempt.
CONCLUSION
We reverse and remand with instructions that the trial court vacate Gardner's sentence for criminal contempt and impose a sentence of three years.
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