Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                       May 09 2014, 6:47 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ADAM G. FORREST                                  GREGORY F. ZOELLER
Boston Bever Klinge Cross & Chidester            Attorney General of Indiana
Richmond, Indiana
                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT CAMPBELL,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 89A04-1309-CR-490
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE WAYNE SUPERIOR COURT
                        The Honorable Charles K. Todd, Jr., Judge
                             Cause No. 89D01-1203-MR-3



                                        May 9, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The State granted appellant-defendant Robert Campbell use immunity in exchange

for his testimony against several other codefendants in accordance with a plea agreement

to Murder,1 a felony. Campbell later refused to testify at a codefendant’s murder trial and

was found in direct contempt of court. Campbell was then sentenced to two-and-one-half

years of incarceration.

          We agree that the trial court properly found Campbell in direct contempt of court

but are compelled to remand this cause with instructions to the trial court to impose a

sentence not exceeding six months. We also affirm the trial court’s decision forbidding

the application of good time credit in these circumstances, which is an issue that might

arise on remand.

                                                 FACTS

          At some point in 2013,2 Campbell pleaded guilty to murder, pursuant to a plea

agreement that he negotiated with the State. Among the provisions of the agreement,

Campbell was granted derivative and use immunity in exchange for his testimony at his

codefendants’ trials that were pending in Wayne County.

          The trial court accepted the plea agreement, and on June 26, 2013, the trial court

issued an order granting Campbell use immunity in connection with the evidence,

testimony, or statements given by him during the trial of codefendant, Jonathan Gray.

1
    Ind. Code § 35-42-1-1.
2
  Although the parties and the trial court refer to the plea agreement and its terms at various times during
Campbell’s contempt and sentencing hearings, it appears that there is no copy of Campbell’s actual plea
agreement in either the record or appendix.

                                                     2
The order also informed Campbell that his refusal to testify could result in a finding of

direct contempt of court.

       When Campbell was called to testify at Gray’s trial on August 8, 2013, Campbell

refused to testify. As a result, the trial court found Campbell in direct criminal contempt

of court because he violated the terms of the plea agreement. Following a hearing on

August 30, 2013, the trial court sentenced Campbell to two-and-one-half years of

incarceration. Campbell now appeals.

                             DISCUSSION AND DECISION

       Campbell argues that the trial court erred when it sentenced him to two and one-

half years of imprisonment for direct criminal contempt in the absence of a jury trial or

his waiver of his right to a jury trial. Campbell also maintains that the trial court erred in

applying “good time credit” to the contempt sentence.

       In accordance with Indiana Code section 34-47-2-1:

       (a) Every person who disturbs the business and proceedings of a court:

              (1) by creating any noise or confusion;

              (2) in a court of record; and

              (3) while the court is open for and engaged in the transaction of business;

       is considered guilty of a direct contempt of court.


       (b) This section applies to a disturbance caused:

              (1) by the commission of a felony, a misdemeanor, or an other unlawful
       act;

                                              3
              (2) by talking, moving about, or by signs, or gestures; or

              (3) in any other manner.

       In construing the above, we initially observe—and the State concedes—that “a

State may choose to try any contempt without a jury if it determines not to impose a

sentence longer than six months.” Taylor v. Hayes, 418 U.S. 488, 496 (1974). However,

a sentence that exceeds six months is sufficiently severe by itself to require a jury trial.

Baldwin v. New York, 399 U.S. 66, 69 (1970); see also Jones v. State, 847 N.E.2d 190,

202 (Ind. Ct. App. 2006) (observing that because the defendant was not afforded a jury

trial or given the opportunity to waive her right to a jury trial, the trial court improperly

sentenced her to a term exceeding 180 days for contempt).

       Although “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.” Holly v. State, 681 N.E.2d 1176, 1177 (Ind. Ct. App. 1987) (quoting Codispoti

v. Pennsylvania, 418 U.S. 506, 511 (1974)). The determination of the seriousness of a

crime is normally heavily influenced by the penalty that the legislature authorizes. Id.

       However, as in direct criminal contempt cases, where no legislative penalty is

specified and sentencing is left to the trial court’s discretion, the pettiness or seriousness

of the contempt will be judged by the penalty actually imposed. Id. Sentences up to six

months may be imposed for criminal contempts without guilt or innocence being



                                              4
determined by a jury. Id. However, sentences that exceed six months may not be

imposed absent a jury trial or waiver thereof. Id.



       In this case, because the trial court sentenced Campbell to two-and-one-half years

of incarceration without a jury trial or a waiver thereof, Campbell’s sentence was

improper. Id. As a result, we must remand this cause with instructions to the trial court

to impose a sentence not exceeding six months.

                                      II. Good Time Credit

       In addition to our decision to remand this cause for the above-stated reasons, we

will proceed to address Campbell’s claim that the trial court erred in determining that he

was not entitled to good time credit regarding his sentence for contempt because the issue

may arise on remand.

       Our Supreme Court has refused to apply good time credit to a contempt sentence

on several occasions. In re Baars, 683 N.E.2d 555, 556 (Ind. 1997). Moreover, our

General Assembly’s purpose in enacting “good time” credit statutes is to encourage

inmates of penal institutions to behave well while confined, to improve their morale, and

to assist prison authorities maintain order and control. Jones, 847 N.E.2d at 201. While

not specified in Indiana Code section 35-50-6-3,3 which pertains to the amount of good


3
  The current version of Indiana Code section 35-50-6-3, which remains in effect until July 1, 2014,
discusses offenders who are assigned to various classes and earn good time for each day that they are
imprisoned in a penal institution for a crime or while awaiting trial or sentencing:


                                                 5
time that is earned when an offender is placed in a certain class within a penal institution,

our Supreme Court has defined credit time as “a statutory reward for a lack of conduct

that is in violation of institutional rules. It is earned toward release on parole for felons,

and does not diminish the fixed term or affect the date on which a felony offender will be

discharged.” Id. at 201.

        It is also apparent that Campbell was not “imprisoned for a criminal offense” as

contemplated by Indiana Code section 35-50-6-4, which pertains to reclassifying or

reassigning offenders within the prison when he or she is incarcerated while “imprisoned

for a crime or imprisoned awaiting trial or sentencing.”4

        As discussed above, the trial court sentenced Campbell to a term of imprisonment

for committing an act of direct contempt. His refusal to testify was directed against the

dignity and authority of the trial court and resulted in the obstruction of justice. Tr. p. 9-



        (a) A person assigned to Class I earns one (1) day of credit time for each day the person is
        imprisoned for a crime or confined awaiting trial or sentencing.

        (b) A person assigned to Class II earns one (1) day of credit time for every two (2) days the
        person is imprisoned for a crime or confined awaiting trial or sentencing.

        (c) A person assigned to Class III earns no credit time.

        (d) A person assigned to Class IV earns one (1) day of credit time for every six (6) days the
        person is imprisoned for a crime or confined awaiting trial or sentencing.

        Although our general assembly has amended this statute that will take effect after July 1, there is
no indication that the revised version applies to actions that involve direct contempt.
4
  Similar to the provisions that are set forth in Indiana Code section 35-50-6-3, the current version of the
statute remains in effect until July 1, 2014. Again, while the amended version that becomes effective on
July 1, 2014 may contain some substantive revisions regarding the reassignment of offenders to various
classes while they are incarcerated, there is no indication that the amended statute applies to contempt
actions.
                                                     6
10. Therefore, the purpose of the sentence imposed was to vindicate the authority of the

trial court and not to punish for the commission of a criminal act, as our legislature has

defined and subsequently codified in the criminal code. Jones, 847 N.E.2d at 201.

       Because Campbell was not “imprisoned for a crime,” Indiana Code sections 35-

50-6-3 and -4 do not apply to his sentence for criminal contempt. Id. at 201 (holding that

the good time credit statutes do not apply to a sentence for criminal contempt). As a

result, Campbell has failed to establish that the trial court erred in determining that

Campbell was not entitled to good time credit on the sentence imposed for contempt. For

these reasons, we affirm this portion of the trial court’s judgment.

       The trial court’s judgment is affirmed, but we remand this cause with instructions

to impose a sentence not to exceed six months. See Holly, 681 N.E.2d at 1178.

BARNES, J., and CRONE, J., concur.




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