                                                                          FILED
                                                                     Dec 14 2017, 10:14 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                           Curtis T. Hill, Jr.
Victoria L. Bailey                                        Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana                                     Katherine Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan Fearman,                                            December 14, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1704-CR-802
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marc Rothenberg,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G02-1703-MC-10188



May, Judge.




Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017                   Page 1 of 6
[1]   Bryan Fearman appeals his 910-day sentence for direct criminal contempt, 1

      arguing a sentence longer than six months violates his right to a trial by jury

      under the Sixth Amendment of the United States Constitution. The State

      argues this matter should be remanded to resolve the number of instances of

      direct contempt for which the trial court intended to sanction Fearman. We

      reverse Fearman’s sentence and remand for the trial court to enter a sentencing

      order for criminal contempt with a six-month sentence.



                                Facts and Procedural History
[2]   Fearman was convicted of attempting to murder Lerron McDowell, as well as

      several other offenses. 2 The McDowell family attended Fearman’s sentencing

      hearing on March 17, 2017. When the prosecutor informed the court of the

      family’s presence, Fearman said, “Who gives a f*ck if they’re in the f*cking

      room.” (Tr. Vol. II at 6.) The judge informed Fearman his behavior in court

      would be considered when he was sentenced. Fearman then rolled his eyes and

      said, “I’ll be out long enough to walk. B*tch is [sic] still got to worry about

      me.” (Id. at 7.) When asked to repeat what he said, Fearman said, “Read my

      lips, when I get out I’m going to wring his f*cking neck.” (Id.) The judge had

      Fearman removed from the courtroom.




      1
          Ind. Code § 34-47-2-1 (1998).
      2
       The record does not provide details as to Fearman’s criminal convictions; however, the trial court’s order
      and abstract of judgment both list multiple cause numbers to which the contempt sentence is ordered to run
      consecutive.

      Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017                       Page 2 of 6
[3]   The trial court later issued an order in which it stated: “Through this order the

      court formally finds the defendant in direct contempt of court for his behavior

      at sentencing, especially the express threats made to the Victim.” (App. Vol. II

      at 13.) Factors taken into consideration when sentencing Fearman for direct

      contempt were:


                 a. The nature of the proceeding. The defendant was being
                 sentenced for the violent crime of Attempt Murder, a Level 1
                 Felony.
                 b. The behavior of the defendant. The defendant displayed
                 disrespect for the court through his tone and physical behavior.
                 c. The contemptable [sic] behavior itself. The defendant
                 committed the forcible felony of intimidation in open court,
                 threatening the person of the Victim of the underlying attempted
                 murder.


      (Id.) Additionally, the trial court noted in its order Fearman’s behavior equated

      to Level 6 felony intimidation, 3 “punishable up to 2.5 years of incarceration,

      and $10,000.00 fine.” (Id.) Considering those factors, the trial court sentenced

      Fearman for contempt to 910 days in the Department of Correction,

      consecutive to his other sentences, without credit time.



                                    Discussion and Decision
[4]   A trial court may cite a person for direct criminal contempt when “the court has

      firsthand and immediate knowledge of acts demonstrating a clear disregard for



      3
          Ind. Code § 35-45-2-1 (2014).


      Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017   Page 3 of 6
      its authority which threaten to undermine the integrity of the judicial process

      and impede the performance of court work.” Hopping v. State, 637 N.E.2d 1294,

      1297 (Ind. 1994), cert. denied 513 U.S. 1017 (1994). “The power of Indiana

      courts to summarily punish for direct criminal contempt, while specified by

      statute, rests upon the common law. It is inherent in the courts.” Id. Such

      sanctions are “essential to ensuring that judicial processes are not undermined.”

      Mockbee v. State, 80 N.E.3d 917, 921 (Ind. Ct. App. 2017), trans. denied.


[5]   The Sixth Amendment to the United States Constitution, applied to the States

      through the Fourteenth Amendment, guarantees the right to a jury trial in

      criminal cases. Duncan v. Louisiana, 391 U.S. 145, 149 (1968), reh’g denied.

      However, petty offenses, wherein the penalty “imposed does not exceed six

      months or a longer penalty has not been expressly authorized by statute,” may

      be tried without a jury. Taylor v. Hayes, 418 U.S. 488, 495 (1974). “[I]n the

      absence of legislative authorization of serious penalties for contempt, a State

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

      sentence longer than six months.” Id. at 496. Sentences exceeding six months

      may not be imposed absent a jury trial or waiver thereof. Holly v. State, 681

      N.E.2d 1176, 1177-78 (Ind. Ct. App. 1997).


[6]   Without challenging the trial court’s finding of direct contempt, Fearman

      argues he was denied his Sixth Amendment right to trial by jury because his

      sentence for direct contempt exceeded six months. The State argues the trial

      court could have been imposing sanctions for multiple counts of contempt and,



      Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017   Page 4 of 6
      based thereon, asks us to remand to the trial court for clarification of the

      number of counts of contempt for which Fearman was sentenced.


[7]   Implicit in the State’s request for remand and clarification of the number of

      counts of contempt is an assumption that the trial court could have stacked

      multiple six-month sentences to justify the sentence imposed. However, the

      State does not provide any support for that allegation, and the law we found

      does not indicate we should follow the State’s suggestion. Instead, the United

      States Supreme Court has held that although a trial court may find a person in

      contempt multiple times arising out of a single proceeding, the sentence,

      without a jury trial, may not exceed six months. Codispoti v. Pennsylvania, 418

      U.S. 506, 517 (1974).


[8]   At his sentencing hearing, Fearman interrupted the court and spoke profanely

      multiple times, and then the court removed him from the courtroom and

      sentenced him for contempt. This all occurred during a single proceeding,

      lasted a short period of time, was not interrupted by any other proceeding, and

      flowed from his single intent to disrupt the court proceedings by threatening

      McDowell. See Mockbee, 80 N.E.3d at 923 (enumerated factors of what

      constitutes a single episode of contemptuous behavior). Fearman’s multiple

      acts of contemptuous behavior constitute a single contemptuous episode and

      can only warrant a “single punishment of not more than six months[,] without

      a jury trial.” Id. Therefore, we reverse Fearman’s 910-day sentence for

      contempt and remand for the trial court to enter a sentencing order for criminal

      contempt with a six-month sentence, to be served consecutive to Fearman’s

      Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017   Page 5 of 6
      criminal convictions in 49G02-1507-F1-25929, 49G02-1507-F4-26885, 49G02-

      1510-FD-38200, and 49G02-1510-F5-38275.


[9]   Reversed and remanded.


      Barnes, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017   Page 6 of 6
