June 5, 2020


                                                                 Supreme Court

                                                                 No. 2018-290-Appeal.
                                                                 (PM 17-3364)


         In re: Joseph I. Lamontagne.         :




                        NOTICE: This opinion is subject to formal revision before
                publication in the Rhode Island Reporter. Readers are requested to
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                250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                  Supreme Court

                                                                  No. 2018-290-Appeal.
                                                                  (PM 17-3364)


       In re: Joseph I. Lamontagne.            :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court. The defendant,1 Joseph I. Lamontagne, appeals from an

order adjudicating him to be in criminal contempt. On appeal, the defendant contends that the

trial justice erred because, he maintains, his conduct was not obstructive to court proceedings or

flagrantly disrespectful to the trial justice and he was denied an opportunity to explain and

defend himself before the trial justice made the finding of contempt. Additionally, the defendant

avers that he was given a contempt sentence that violates the constitution. This case came before

the Supreme Court on May 13, 2020 by video conferencing, pursuant to an order directing the

parties to appear and show cause why the issues raised in this appeal should not be summarily

decided.2 After carefully considering the parties’ written and oral submissions and reviewing the

record, we conclude that cause has not been shown and that this case may be decided without

further briefing or argument. For the reasons set forth in this opinion, we affirm in part and

reverse in part the order of the Superior Court.




1
  In addition to this appeal, Mr. Lamontagne also filed a separate appeal, No. 2018-241-C.A.,
from his underlying criminal conviction for first-degree robbery and assault with a dangerous
weapon in a dwelling, which appeal is pending before the Court. For clarity, we refer to him as
defendant herein also.
2
  For the first time in Rhode Island Supreme Court history, this case was heard remotely by
means of the WebEx platform.


                                              -1-
                                                 I

                                        Facts and Travel

       On July 18, 2017, defendant appeared before a justice of the Superior Court for

sentencing on a conviction for first-degree robbery and assault with a dangerous weapon in a

dwelling. At that time, the trial justice noted that she had considered the offense, the offender,

and whether defendant needed to be removed from society or had the ability to be rehabilitated.

She also considered that defendant’s “sentence should serve as a deterrence to the [d]efendant

and to others from committing similar crimes in the future[.]” The trial justice determined that

defendant’s “age and numerous contacts with the system make him a poor candidate for

rehabilitation.”   She further determined that defendant’s “absolute refusal to take any

responsibility for anything he does wrong and to describe himself as the victim” added to her

evaluation that he was a poor candidate for rehabilitation.

       Based on all of those reasons, the trial justice deviated from the sentencing benchmarks

and sentenced defendant to thirty-five years at the Adult Correctional Institutions, with

twenty-three years to serve and the balance suspended, with probation. The following exchange

then occurred between defendant and the trial justice:

               “THE DEFENDANT: That’s justice?

               “* * *

               “THE DEFENDANT: That’s bullshit.

               “THE COURT: Excuse me.

               “THE DEFENDANT: That’s not justice.

               “THE COURT: Excuse me. I am adding to that. I find you in
               contempt of court, and I sentence you to an additional three years
               at the Adult Correctional Institutions to be served consecutive to
               the sentence I just imposed. One moment. I have to articulate it.



                                             -2-
               “THE DEFENDANT: It’s all lies.

               “THE COURT: Criminal contempt committed in the presence of
               the [c]ourt.

               “THE DEFENDANT: How would you feel?”

The trial justice then stated that the contempt was “direct in its adverse effect on the authority

and prestige of the [c]ourt” and that “all essential elements of misconduct were observed by the

[c]ourt[.]” The trial justice determined that “immediate punishment [wa]s essential to prevent

demoralization of the [c]ourt’s authority before the public.”

       The trial justice then gave defendant the opportunity to address the court regarding her

contempt finding before she executed the sentence. The defendant then apologized to the trial

justice, stating: “I’m sorry, Your Honor. I didn’t mean any disrespect.” Additionally, defendant

stated that he did not feel as though he was “treated properly in this courtroom.” The trial justice

stated that defendant’s apology earned him a year off his contempt sentence. Accordingly, she

sentenced defendant to two years at the ACI for criminal contempt, to be served consecutively to

his sentence of thirty-five years with twenty-three years to serve on the underlying charges. The

defendant timely appealed to this Court.

                                                 II

                                       Standard of Review

       This Court has stated that “the inherent power of courts to punish for contempt * * * has

long been recognized by our jurisprudence.” State v. Price, 672 A.2d 893, 898 (R.I. 1996)

(brackets omitted) (quoting E.M.B. Associates, Inc. v. Sugarman, 118 R.I. 105, 108, 372 A.2d

508, 509 (1977)). We have recognized “that courts, endowed with the power to impose severe




                                             -3-
punishment for contempt in their discretion, might abuse that discretion.” Id. Therefore, “we

shall review a decision in respect to the punishment of contempt for abuse of that discretion.” Id.

                                                III

                                            Discussion

       Before this Court, defendant avers that the trial justice erred in adjudicating him in

criminal contempt because, he argues, his conduct was not obstructive to court proceedings or

flagrantly disrespectful to the trial justice and he was denied an opportunity to explain and

defend himself before the trial justice made the finding of contempt.

       We have repeatedly held that “Rule 42(a) [of the Superior Court Rules of Criminal

Procedure] and its federal counterpart have been consistently interpreted to permit a court to

dispense with due process requirements and exercise its extraordinary but narrowly limited

power to punish summarily for contempt only in specifically delineated circumstances.”3 State v.

Price, 66 A.3d 406, 418-19 (R.I. 2013) (deletions omitted) (quoting Nestel v. Moran, 513 A.2d

27, 28-29 (R.I. 1986)). “It is our strong policy to ‘firmly and steadfastly uphold the right of a

trial justice to impose summary punishment in certain circumstances.’” Id. at 418 (brackets

omitted) (quoting Nestel, 513 A.2d at 30). Such circumstances exist

               “when the alleged misconduct has occurred in open court, in the
               presence of the judge, which disturbs the court’s business, where
               all of the essential elements of the misconduct are under the eye of
               the court, are actually observed by the court, and where immediate
               punishment is essential to prevent demoralization of the court’s
               authority before the public.” Id. at 419 (quoting Nestel, 513 A.2d at
               29).




3
  Rule 42(a) of the Superior Court Rules of Criminal Procedure provides, in pertinent part, that
“[a] criminal contempt may be punished summarily if the judicial officer certifies that the
judicial officer saw or heard the conduct constituting the contempt and that the conduct was
committed in the actual presence of the court.”


                                             -4-
       After our careful review of the entire record, we are of the opinion that the trial justice

did not abuse her discretion. Indeed, this Court has stated that “not every impolite or vulgar

remark suffices to justify contempt proceedings[.]” Price, 66 A.3d at 419 (quoting United States

v. Marshall, 371 F.3d 42, 48 (2d Cir. 2004)). However, while acknowledging that this is a close

case, it is the trial justice who “has had an opportunity to appraise witness demeanor and to take

into account other realities that cannot be grasped from a reading of a cold record.” Silva v.

Laverty, 203 A.3d 473, 481 (R.I. 2019) (quoting Voccola v. Forte, 139 A.3d 404, 413 (R.I.

2016)). It is clear from the record that defendant, unhappy with his sentence, acted out in the

presence of the court, and that his comments were specifically directed at the court and not mere

sorrowful remarks at the severity of his sentence. Therefore, the trial justice was clearly within

her authority to summarily punish defendant “to prevent demoralization of the court’s

authority[.]” See Price, 66 A.3d at 419 (quoting Nestel, 513 A.2d at 29).

       The defendant also asserts that his two-year contempt sentence was “unlawful and

unconstitutional” given that the United States Supreme Court has squarely held that, pursuant to

the United States Constitution, sentences over six months for criminal contempt require that a

defendant be given the opportunity to choose a jury trial. Codispoti v. Pennsylvania, 418 U.S.

506, 511-12 (1974) (citing Bloom v. Illinois, 391 U.S. 194 (1968)). While we have “generally

declined to review either the validity, legality, or excessiveness of a sentence on direct appeal[,]”

based on the unique facts of this case, we agree with defendant’s contention. See State v. Price,

820 A.2d 956, 973 (R.I. 2003).

       The United States Supreme Court has quite plainly held that “sentences up to six months

c[an] be imposed for criminal contempt without guilt or innocence being determined by a

jury[.]” Codispoti, 418 U.S. at 511-12. The trial justice’s two-year consecutive sentence is




                                              -5-
clearly beyond the six-month maximum. Accordingly, we remand the case to the Superior Court

for resentencing. On remand, the trial justice may reduce the defendant’s sentence to a period of

six months or less, or, in the alternative, if the trial justice determines the defendant’s conduct

warrants more than a six-month sentence, a criminal complaint or information shall be filed by

the Attorney General, and, if the defendant so chooses, a jury trial shall be conducted to

determine the defendant’s guilt or innocence with respect to the criminal contempt charge.

                                                IV

                                           Conclusion

       For the reasons stated herein, we affirm in part and reverse in part the order of the

Superior Court. The record shall be returned to that tribunal for further proceedings consistent

with this opinion.




                                             -6-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        In re: Joseph I. Lamontagne.
                                     No. 2018-290-Appeal.
Case Number
                                     (PM 17-3364)
Date Opinion Filed                   June 5, 2020
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For State:

                                     Mariana E. Ormonde
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Camille A. McKenna
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
