                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-3056-18T3

IN THE MATTER OF
CALVIN ROANE
__________________________

                 Submitted December 10, 2019 – Decided January 21, 2020

                 Before Judges Gilson and Rose.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Camden County, Indictment No. 18-11-2726.

                 Joseph E. Krakora, Public Defender, attorney for
                 appellant Calvin Roane (Susan L. Romeo, Assistant
                 Deputy Public Defender, of counsel and on the brief).

                 Respondent State of New Jersey has not filed a brief.

PER CURIAM

       Defendant Calvin Roane appeals from an order finding him in contempt

of court and summarily sentencing him to six months of incarceration. We

reverse because defendant was not afforded a sufficient opportunity to be heard

on either the finding of contempt or the sentence. Consequently, the procedural
safeguards set forth in Rule 1:10-1 and In re Daniels, 118 N.J. 51 (1990) were

not honored.

       The record establishes the relevant facts. Defendant and his counsel were

before the court on a Miranda1 motion to suppress a statement defendant had

given to the police. After the court denied the motion, the prosecutor asked for

excludable time. Defendant interjected: "Excludable time? How much time

y'all want? I've been here for six months." The court advised defendant to calm

down. Defendant repeated that he had been incarcerated for six months and the

court began to explain to defendant that he needed to have a proper demeanor in

court. In reply, defendant stated: "[m]an, you as a judge can suck my dick."

While defendant used the word "man," the judge was a woman. Without further

proceedings, the court announced that defendant was in contempt. Defendant

responded: "I don't give a fuck."

       The court then asked defense counsel whether she wanted to be heard

concerning the sentence. Defense counsel pointed out that her client was often

very emotional and that he had mental health issues. Counsel also contended

that, if given an opportunity, she thought defendant would apologize and

acknowledge that his outburst was unacceptable.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
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Specifically, the following exchange occurred on the record:

      [PROCECUTOR]: We would request excludable time,
      Your Honor.

      [DEFENSE COUNSEL]: No objection.

      THE COURT: Okay.

      [] DEFENDANT: Excludable time? How much time
      y'all want? I've been here for six months.

      THE COURT: Mr. Roane, please --

      [] DEFENDANT: How much time you want?

      THE COURT: -- Mr. Roane, please calm down. It's not
      going to help you, Mr. Roane, to have outbursts in
      court.

      [] DEFENDANT: I don't -- (indiscernible).

      THE COURT: Okay. I just want to --

      [] DEFENDANT: (Indiscernible) every constitution --
      everything, man.

      [DEFENSE COUNSEL]: (Indiscernible) next Monday.

      THE COURT: [Defense counsel] --

      [] DEFENDANT: Come on, man.

      THE COURT: -- on his --

      [] DEFENDANT: I've been here for six months and
      shit, (indiscernible).


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                                3
            THE COURT: -- [Defense counsel] -- Mr. Roane. Let
            me explain to you, Mr. Roane, and this is important.
            Now, you have to have proper demeanor in the
            courtroom. If you use profanity -- listen, Mr. --

            [] DEFENDANT: Man, you as a judge can suck my
            dick.

            THE COURT: Okay, that's fine. Have a seat, sir. And
            what's going to happen is, that is contempt in the
            presence of the court. I am holding you in contempt,
            sir. Under the court rule --

            [] DEFENDANT: I don't give a fuck.

            THE COURT: You -- before you are sentenced,
            [Defense counsel], do you wish to be heard before I
            sentence him? [Defense counsel], do you wish --

            [DEFENSE COUNSEL]: Yes, Judge.

            THE COURT: -- to be heard before I sentence him?

            [DEFENSE COUNSEL]: Judge, with regard to the
            contempt, Judge, I would note that we would ask for
            you to not hold my client in contempt. My client is
            obviously very emotional. He has -- he has been during
            my whole representation of him. I believe that Mr.
            Roane will apologize and he understands that this
            outburst was not acceptable.
                  Additionally, Your Honor, I do note that he does
            have some mental health concerns. I have represented
            Mr. Roane before.

      The court did not give defendant an opportunity to explain or apologize.

Instead, the court asked the assistant prosecutor for his position. I n response,


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the prosecutor noted that defendant's outburst was inappropriate, but the

prosecutor did not ask for contempt nor did he want to be heard on a sentence.

Consistent with that position, the prosecutor's office elected not to submit a brief

to us and, consequently, took no position on this appeal.

      The court then imposed a six-month sentence. In that regard, the court

stated, in total:

             THE COURT: Okay. The court finds that Mr. Roane is
             in contempt of court in the presence of the judge. The
             court rule supports it. When there's a contempt in the
             presence of a judge, the court can hold him in contempt.
                   The language that he used in my courtroom, the
             record speaks for itself. He has told the court to suck
             his dick in the presence of my -- in the presence of the
             court. I find him in contempt.
                   He's sentenced to six months effective today.

      Those proceedings took place on the record on March 15, 2019. Three

days later, the court issued a written order, dated March 15, 2019, holding

defendant in contempt and sentencing him to six months of incarceration. The

order did not stay the sentence for five days as required by Rule 1:10-1.

      Both we and the Supreme Court denied defendant's request to file an

emergent motion. In denying defendant's motion, the Supreme Court noted that

if defendant filed an appeal, the provisions of Rule 1:10-1 would control. Under

that rule defendant's sentence would be stayed pending an appeal. Thus, on


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                                         5
March 20, 2019, defendant first requested a stay from the trial court, which was

denied, and then filed this appeal.

      Defendant makes two arguments on appeal, which he articulates as

follows:

            POINT I DEFENDANT'S SUMMARY CONVICTION
            FOR CONTEMPT MUST BE REVERSED BECAUSE
            THE TRIAL COURT'S ALMOST INSTANTANEOUS
            ADJUDICATION FAILED TO ACCORD HIM THE
            DUE PROCESS TO WHICH HE WAS ENTITLED
            UNDER IN RE DANIELS, 118 N.J. 51 (1990), AND
            BECAUSE     THE  COURT     IGNORED       THE
            MITIGATING EVIDENCE OF DEFENDANT'S
            MENTAL HEALTH PROBLEMS

            POINT II DEFENDANT'S SENTENCE MUST BE
            REVERSED BECAUSE THE COURT PROVIDED
            NO FACTUAL FINDINGS OR CONCLUSIONS TO
            SUPPORT ITS IMPOSITION OF A SIX-MONTH
            CONSECUTIVE    SENTENCE,  WHICH   WAS
            EXCESSIVE FOR CONDUCT THAT OCCURRED
            ON A SINGLE OCCASION AND LASTED ONLY
            MINUTES

      The power of courts to punish contempt is well-established. Amoresano

v. Laufgas, 171 N.J. 532, 549 (2002) (citing In re Buehrer, 50 N.J. 501, 513

(1967)). It is, however, an "extraordinary power" that "should be exercised

sparingly and only in the rarest of circumstances." In re Daniels, 118 N.J. at 61.

      Acts committed in the presence of the court are governed by Rule 1:10-1.

That rule provides:

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                                        6
            A judge conducting a judicial proceeding may
            adjudicate contempt summarily without an order to
            show cause if:

            (a) the conduct has obstructed, or if continued would
            obstruct, the proceeding;

            (b) the conduct occurred in the actual presence of the
            judge, and was actually seen or heard by the judge;

            (c) the character of the conduct or its continuation after
            an appropriate warning unmistakably demonstrates its
            willfulness;

            (d) immediate adjudication is necessary to permit the
            proceeding to continue in an orderly and proper
            manner; and

            (e) the judge has afforded the alleged contemnor an
            immediate opportunity to respond.

            The order of contempt shall recite the facts and contain
            a certification by the judge that he or she saw or heard
            the conduct constituting the contempt and that the
            contemnor was willfully contumacious. Punishment
            may be determined forth with or deferred. Execution of
            sentence shall be stayed for five days following
            imposition and, if an appeal is taken, during the
            pendency of the appeal, provided, however, that the
            judge may require bail if reasonably necessary to assure
            the contemnor's appearance.

      The summary contempt power is a narrow exception to due process

requirements   "where    immediate     punishment     is   essential     to   prevent

'demoralization of the court's authority' before the public." In re Daniels, 118


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                                        7
N.J. at 62 (quoting In re Oliver, 333 U.S. 257, 275 (1948)). Our Supreme Court

has explained that before a court takes the extraordinary step of exercising its

summary contempt power, the court should evaluate (1) the gravity of the

conduct; (2) afford the party who is the subject of the contempt an "opportunity

to retreat or explain the circumstances"; (3) consider whether immediate

adjudication is necessary; (4) "evaluate whether the record will adequately

disclose the essence of the contempt"; (5) "consider whether there is any

appearance of personal confrontation or loss of objectivity that woul d require"

referencing the matter to another judge "[i]f the contempt involves personal

insult to the court"; and (6) if "imprisonment may be warranted," consider

whether a "more formal charging process and reference to another judge for

adjudication and sentence" would be appropriate to accord more due process.

Id. at 67-68.

      Our review of a summary contempt order is de novo. Id. at 62. In that

regard, Rule 1:10-1 allows an immediate appeal from a finding of contempt and

stays any sentence pending that appeal. Our Supreme Court has explained that

"[t]he provision for de novo appellate review of summary contempt convictions

is a fail-safe mechanism for assuring that the contempt power is not abused."

Ibid. (citing In re Yengo, 84 N.J. 111, 135 (1980) (Handler, J., concurring)).


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                                       8
      Here, the trial court did not afford defendant any opportunity to explain

or apologize for the outburst. The outburst itself was clearly inappropriate. It

was, however, directed at the judge and the judge should have used her

discretion to give defense counsel an opportunity to confer with defendant who

was obviously emotional at the moment. Importantly, the record does not reflect

that defendant's inappropriate comments were made over an extended period of

time after he had been warned that his statements were inappropriate. Instead,

the record reflects that those brief outbursts were a spontaneous, albeit

inappropriate, response to the prosecutor's request for excludable time.

      More importantly, there is no explanation for the imposition of a six-

month sentence. Trial courts have a wide array of potential sanctions for

contemptuous behavior.      Those sanctions can include censure, fines, or

incarceration.   If, however, incarceration is to be imposed, a court should

carefully consider according more due process by referring the contempt matter

to another judge for adjudication and sentence. See In re Daniels, 118 N.J. at

68. Indeed, our Supreme Court has explained that "ordinarily" such a reference

is required when imprisonment may be warranted for contempt. Ibid.

      Accordingly, we reverse and vacate the March 15, 2019 order finding

defendant in contempt and imposing a sentence. We remand the matter with the


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                                       9
direction that if the court believes contempt is still appropriate, the issue should

be referred to another judge for adjudication and sentence.

      Reversed and remanded. We do not retain jurisdiction.




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