                                                                        FILED
                                                                   May 27 2020, 7:48 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Amy. E. Karozos                                           J.T. Whitehead
Public Defender of Indiana                                Deputy Attorney General
                                                          Indianapolis, Indiana
Jonathan O. Chenoweth
Deputy Public Defender
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Bobby D. Wine,                                            May 27, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-2268
        v.                                                Appeal from the Wabash Circuit
                                                          Court
State of Indiana,                                         The Honorable Robert R.
Appellee-Respondent.                                      McCallen, III, Judge
                                                          Trial Court Cause No.
                                                          85C01-1902-PC-251



Altice, Judge.


                            Facts and Procedural History
Bobby Wine appeals the denial of his petition for post-conviction relief, arguing

that both trial and appellate counsel were ineffective for not objecting to the

aggregate 720-day sentence that was imposed on four counts of criminal

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contempt. The State presents an issue of first impression on cross-appeal,

claiming that this cause must be dismissed for lack of subject matter jurisdiction

because the post-conviction rules do not apply to criminal contempt

adjudications.


We affirm.


                              Facts and Procedural History
On July 30, 2012, Wine was charged with dealing in a controlled substance, a

class B felony and was subsequently convicted of that offense following a three-

day jury trial. During the trial, the trial court specifically found Wine in direct

criminal contempt on five separate occasions and sentenced him to 180 days on

each count for an aggregate term of 900 days. 1 Wine was repeatedly disruptive

throughout the course of the trial, and the trial court warned Wine after the first

episode that “for each and every contempt, [Wine] will suffer 180 days in the

Wabash County Jail. Each and every one, consecutive.” Transcript Vol. I at 4.


The first instance of contempt occurred on day one of the trial, the second and

third happened on day two, and the next episodes occurred on the third day of

trial.    Wine had to be removed from the courtroom on several occasions

because of his disrespectful and loud sarcastic remarks to the court, arguing

with the trial judge, constantly complaining in open court about trial counsel’s




1
  Although the trial court noted that Wine was in contempt on at least fifteen separate occasions, it elected to
issue findings and impose sanctions on only five of those instances.

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alleged deficient representation, and making remarks to the spectators in the

courtroom. Following these episodes, the trial court entered the following

order:


         [D]uring the questioning of a witness, the Defendant objected.
         The court again removed the jury and again advised the
         Defendant he was to speak only through counsel. The
         Defendant remained combative and disrespectful. He was then
         informed he was in contempt (Count I). The Defendant then
         baited the court to make additional findings of direct contempt
         on at least 3 additional occasions, which the court did (Counts II,
         III & IV). The Defendant was so informed. At that time, he
         turned his back to the court and looked at the gallery where
         various spectators were seated. He then said to someone “what’s
         so funny” or words to that effect. He was then found in
         contempt, again (Count V).


         The conduct of the Defendant, as recited above, is as heinous as
         the court has ever witnessed of a criminal defendant. His actions
         were clearly motivated to undermine these proceedings and to
         attempt to cause a mistrial.


Appellant’s Appendix at 4-5. Wine directly appealed the contempt findings to this

court, challenging the sufficiency of the evidence and the procedures that the

trial court followed in finding him in contempt. Wine also claimed that his

sentence was “inappropriate, manifestly unreasonable, or unreasonable.” Wine

v. State, No. 85A02-1307-CR-610, slip op. at 13 (Ind. Ct. App. Feb. 20, 2014).

We affirmed in part and reversed in part, concluding that the record supported




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four rather than five episodes of contempt. Slip op. at 8. 2 While we also

determined that the sentence of 180 days on each contempt finding was proper,

we reduced the aggregate sentence to 720 days on the four counts. Id. at 11-12.


In a separate appeal, Wine appealed his conviction on the underlying drug

dealing charge, claiming that he received the ineffective assistance of trial

counsel, 3 that the case should have been dismissed, and that the trial court

improperly admitted a statement into evidence that he had made prior to trial.

We affirmed Wine’s conviction in all respects. See Wine v. State, No. 85A05-

1307-CR-382 (Ind. Ct. App. March 27, 2014).


Thereafter, on June 6, 2019, Wine filed an amended petition for post-conviction

relief, claiming that his trial counsel was ineffective for not objecting to the

length of the sentence for contempt because the instances of contempt were part

of a single episode. Wine claimed that the aggregate sentence for criminal

contempt could not lawfully exceed 180 days pursuant to this court’s opinion in

Mockbee v. State, 80 N.E.3d 917, 922-923 (Ind. Ct. App. 2017), because he did

not waive his right to a jury trial. Wine also claimed that appellate counsel was

ineffective for the same reasons.




2
  We determined that the record supported findings that Wine was in contempt on only four occasions
because the trial court did not specify precisely what Wine did that might have supported a fifth count. Slip
op. at 8.
3
 Wine claimed that his trial counsel was ineffective for failing to: 1) spend sufficient time with him when
preparing for trial; 2) advise him of a plea agreement that the State had offered; and 3) file a motion to
dismiss the charges prior to trial.

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Following a July 15, 2019 hearing on Wine’s petition, the post-conviction court

denied Wine’s request for relief and entered the following order:


    1. Wine was previously found to be in direct criminal contempt of
       Court (Counts I, II, III, & V) following remand from the Indiana
       Court of Appeals and its decision that Count IV be vacated. The
       Court of Appeals did not otherwise find fault with the remaining
       four counts of contempt.



    2. The Defendant was sentenced to 180 days of incarceration at the Wabash
       County Jail for each separate contempt as a sanction for his behaviors, to
       be served consecutively. As a result, the Defendant received a total
       sentence of 720 days.


    3. These consecutive sentences arose from individual and distinct acts of
       contemptuous behavior and not a single contemptuous episode. Further,
       even if they had, Mockbee v. State, 80 N.E.3d 917 (Ind. Ct. App. 2017) had
       not been decided. The Court does not find that either trial or appellate
       counsel performed deficiently or that the result would or should have
       been different.

Appendix Vol. II at 78. Wine now appeals.

                                Discussion and Decision
                                       I. Standard of Review


Our standard of review in post-conviction proceedings is well-settled:


    [P]ost-conviction proceedings do not grant a petitioner a ‘super-
    appeal’ but are limited to those issues available under the Indiana
    Post-Conviction Rules. Post-conviction proceedings are civil in
    nature, and petitioners bear the burden of proving their grounds for
    relief by a preponderance of the evidence. Ind. Post-Conviction
    Rule 1(5). A petitioner who appeals the denial of PCR faces a

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    rigorous standard of review, as the reviewing court may consider
    only the evidence and the reasonable inferences supporting the
    judgment of the post-conviction court. The appellate court must
    accept the post-conviction court’s findings of fact and may reverse
    only if the findings are clearly erroneous. If a PCR petitioner was
    denied relief, he or she must show that the evidence as a whole leads
    unerringly and unmistakably to an opposite conclusion than that
    reached by the post-conviction court.


Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019) (quoting Shepherd v.

State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations omitted),

trans. denied.


                                     II. The State’s Cross-Claim


Before proceeding to the merits of Wine’s claims, we first address the State’s

contention on cross-appeal that we are required to dismiss this cause for lack of

subject matter jurisdiction because the post-conviction rules do not apply to

criminal contempt adjudications. The State asserts that because contempt is not

a statutorily-defined criminal offense, Wine may not seek a remedy by way of

post-conviction relief.


Our post-conviction relief rules provide that “(a) [a]ny person who has been

convicted of, or sentenced for, a crime by a court of this state, and who claims: (3)

that the sentence exceeds the maximum authorized by law, or is otherwise

erroneous . . . may institute at any time a proceeding under this Rule to secure

relief.” Ind. Post-Conviction Rule 1(1)(a) (emphasis added). We note that any

act that manifests a disrespect and defiance of a court may constitute direct

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criminal contempt. Hopping v. State, 637 N.E.2d 1294, 1297 (Ind. 1994);

Mockbee, 80 N.E.3d at 920. Direct criminal contempt citations are available

where “the court has firsthand and immediate knowledge of acts demonstrating

a clear disregard for its authority which threaten to undermine the integrity of

the judicial process and impede the performance of court work.” Mockbee, 80

N.E.3d at 920 (quoting Hopping, 637 N.E.2d at 1297). The power of Indiana

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

statute, 4 rests upon the common law. It is inherent in the courts. Hopping, 637

N.E.2d at 1296.


In support of the contention that this cause must be dismissed for lack of subject

matter jurisdiction, the State directs us to T.T. v. State, 439 N.E.2d 655 (Ind. Ct.

App. 1982), where the respondent delinquent child appealed to this court

following an adjudication that he had committed criminal contempt for

disobeying a court order to attend school. This court determined that T.T. was

wrongly adjudicated a delinquent child because “all crimes are statutory, and

all who are accused of a crime are entitled to a trial by jury, and there can be no

conviction of crime except by a jury unless a jury was waived. Contempt of

court is not a crime.” Id. at 657 (citing Niemeyer et al. v. McCarty et al., 51

N.E.2d 365, 367 (Ind. 1943)). In light of this pronouncement, the State posits




4
   Our direct contempt statute provides in relevant part that “(a) [e]very 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 and engaged in the transaction of business is considered guilty of direct contempt of court.” Ind.
Code § 34-47-2-1.

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that Wine may not avail himself of post-conviction remedies because those

rules are necessarily limited to persons who have been convicted of, or

sentenced for, a criminal offense defined by statute.


While the State correctly observes that T.T. stands for the proposition that

criminal contempt was not “an offense” under the Juvenile Code, that case was

an appeal from the denial of a petition for post-conviction relief. Seemingly, if

contempt is not “a crime” for purposes of our post-conviction rules, it stands to

reason that T.T.’s appeal would have been dismissed, inasmuch as this court is

“required to consider” subject-matter jurisdiction sua sponte, even when the

parties do not. Albright v. Pyle, 637 N.E.2d 1360, 1363 (Ind. Ct. App. 1994).

That the merits of T.T.’s appeal were considered and not dismissed supports

the notion that a collateral challenge of a criminal contempt finding may be

pursued under the post-conviction rules—regardless of what criminal contempt

is or was under the Juvenile Code.


We further note that criminal contempt, as its name implies, is “punitive in

nature.” McCollum v. FSSA, 82 N.E.3d 368, 375 (Ind. Ct. App. 2017). One

who is subject to criminal contempt is afforded many of the same constitutional

safeguards that a defendant in a criminal trial enjoys because of the penalties

that may be imposed. See id. As the United States Supreme Court observed in

Bloom v. Illinois:


        [C]riminal contempt is a crime in every fundamental respect . . . .
        [I]n terms of those considerations which make the right to jury



Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020          Page 8 of 28
        trial fundamental in criminal cases, there is no substantial
        difference between serious contempts and other serious crimes.


        Criminal contempt is a crime in the ordinary sense; it is a
        violation of the law, a public wrong which is punishable by fine
        or imprisonment or both. In the words of Mr. Justice Holmes:
        “‘These contempts are infractions of the law, visited with
        punishment as such. If such acts are not criminal, we are in error
        as to the most fundamental characteristic of crimes as that word
        has been understood in English speech.’” Gompers v. United
        States, 233 U. S. 604, 610 (1914).


        Criminally contemptuous conduct may violate other provisions
        of the criminal law; but even when this is not the case convictions
        for criminal contempt are indistinguishable from ordinary criminal
        convictions, for their impact on the individual defendant is the same.
        Indeed, the role of criminal contempt and that of many ordinary
        criminal laws seem identical—protection of the institutions of
        our government and enforcement of their mandates.


391 U.S. 194, 201-02 (1968) (citation and some quotation marks omitted)

(emphasis added).


In addition to the above, I.C. § 34-47-2-5(a) provides that if a “defendant is

found guilty of direct contempt . . . the defendant has the right to appeal the

judgment of the court.” (Emphasis added). And pursuant to I.C. §34-47-2-5(e),

a defendant has the right to move the trial court to reconsider its opinion on the

finding of contempt and if that motion is overruled, “the defendant may appeal as

in other criminal actions.” (Emphasis added).




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Finally, we observe that unlike adjudications for criminal contempt, a finding of

civil contempt 5 can be collaterally attacked by a motion for relief of judgment

pursuant to Indiana Trial Rule 60(B). See Bello v. Bello, 102 N.E.3d 891, 895

(Ind. Ct. App. 2018). Because the consequences of criminal contempt are

punitive in nature, those actions may not be collaterally attacked under the trial

rules because those rules apply only to “suits of a civil nature[.]” Ind. Trial

Rule 1. Thus, a petition for post-conviction relief is a criminal contemnor’s

only opportunity to collaterally challenge such an adjudication. See Woods v.

State, 701 N.E.2d 1208, 1219 (Ind. 1998) (recognizing that a post-conviction

proceeding is the “preferred forum” in which to raise a claim of ineffective

assistance of trial counsel, and the only forum in which to raise a claim of

ineffective assistance of appellate counsel). For all the reasons above, we

decline to dismiss Wine’s appeal.


                                           III. Wine’s Claims


                          A. Ineffective Assistance of Trial Counsel


Wine argues that he is entitled to post-conviction relief because his trial counsel

was ineffective for failing to object to the length of the sentence that was




5
  A civil contempt is a violation of a court order resulting in a proceeding for the benefit of the aggrieved
party. Mitchell v. Stevenson, 677 N.E.2d 551, 558-59 (Ind. Ct. App. 1997), trans. denied. The objective of a civil
contempt proceeding is not to punish, but to coerce action for the benefit of the aggrieved party. McCollum,
82 N.E.3d at 375. Imprisonment is a permissible sanction for an act of civil contempt, but “if the judgment
seeks to coerce the defendant into doing an affirmative act by confinement in jail, it must provide that the
imprisonment cease as soon as the act is done, so that it gives the defendant the key of his prison in his own
pocket.” D.W. v. State, 673 N.E.2d 509, 512 (Ind. Ct. App. 1996), trans. denied.

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imposed. Wine contends that the aggregate 720-day sentence cannot stand

because he did not waive his right to a jury trial and, therefore, could not be

sentenced to more than 180 days of incarceration.


In ineffective assistance of counsel cases, reversal is appropriate where a

defendant shows both that counsel’s performance fell below an objective

standard of reasonableness and that said deficient performance so prejudiced

the defendant as to deprive him of a fair trial. Pennycuff v. State, 745 N.E.2d

804, 811 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)).

There is a strong presumption that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment. Id. Judicial scrutiny of counsel’s performance is highly deferential

and should not be exercised through the distortions of hindsight. Id. Isolated

poor strategy, inexperience, or bad tactics do not necessarily amount to

ineffectiveness of counsel. Id. When considering ineffectiveness assistance of

counsel claims, we “judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

Id. (citing Strickland, 466 U.S. at 690). A claim that trial counsel was ineffective

may be disposed of on the prejudice inquiry alone. Vermillion v. State, 719

N.E.2d 1201, 1208 (Ind. 1999); Williams v. State, 706 N.E.2d 149, 154 (Ind.

1999).


In addressing Wine’s contentions, we initially observe that 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.

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Duncan v. Louisiana, 391 U.S. 145, 149 (1968). On the other hand, 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).


Wine directs us to Codispoti v. Pennsylvania, 418 U.S. 506 (1974) in support of

his contention that the aggregate sentence for contempt charges cannot exceed

180 days. In Codispoti, the defendant was tried before a judge for contemptuous

conduct that occurred during the course of a criminal trial that had been tried in

a different court. Id. at 508. The judge in the contempt proceedings, who

denied Codispoti’s request for a jury trial, adjudged Codispoti guilty of seven

instances of contempt and imposed an aggregate sentence of three years and

three months. Thus, the issue before the Supreme Court was whether Codispoti

was entitled to a jury trial because the aggregate sentence for contempt

exceeded 180 days. Id. 512-13.


Prior to addressing the merits of Codispoti’s claim, the Court commented on a

trial court’s need to maintain order and a deliberative atmosphere in the

courtroom:



Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020        Page 12 of 28
        ‘[A] criminal trial, in the constitutional sense, cannot take place
        where the courtroom is a bedlam. . . . A courtroom is a hallowed
        place where trials must proceed with dignity. . . .’ Illinois v. Allen,
        397 U.S. 337, 351 (1970) (separate opinion of Douglas, J.).


                                                  ...


        ‘To allow the disruptive activities of a defendant . . . to prevent
        his trial is to allow him to profit from his own wrong. The
        Constitution would protect none of us if it prevented the courts
        from acting to preserve the very processes that the Constitution
        itself prescribes.’ Illinois v. Allen, supra, at 350; 90 S.Ct. at 1064
        (Brennan, J., concurring).


Id. at 514 (quoting N. Dorsen & L. Friedman, Disorder in the Court: Report of

the Association of the Bar of the City of New York, Special Committee on

Courtroom Conduct 10-23 (1973); Burger, The Necessity for Civility, 52 F.R.

D. 211, 214-15 (1971)).


Similarly, this court recognized in Cardwell v. State that a trial judge has the

responsibility to control the proceedings by taking responsible steps to insure

proper order and discipline. 516 N.E.2d 1083, 1085 (Ind. Ct. App. 1987), trans.

denied. And in Illinois v. Allen, the United States Supreme Court observed that


        It is essential to the proper administration of criminal justice that
        dignity, order, and decorum be the hallmarks of all court
        proceedings in our country. The flagrant disregard in the
        courtroom of elementary standards of proper conduct should not
        and cannot be tolerated. We believe trial judges confronted with
        disruptive, contumacious, stubbornly defiant defendants must be
        given sufficient discretion to meet the circumstances of each case.


Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020                 Page 13 of 28
397 U.S. 337, 343-44 (1970).


The majority then observed in Codispoti that if “each contempt is dealt with as a

discrete and separate matter at a different point during the trial,” the defendant

has no right to a jury; for each contempt, he can be sentenced to consecutive

six-month terms. Codispoti, 418 U.S. at 515; see also Mayberry v. Pennsylvania,

400 U.S. 455, 463 (1971). The Codispoti Court did note that there are

circumstances where a “contemnor may be punished by a term of no more than

six months.” Codispoti, 418 U.S. at 514. However, a judge does not exhaust the

“power to convict and punish summarily whenever the punishment imposed for

separate contemptuous acts during trial exceeds six months.” Id.


The Codispoti Court explained that


        [w]hen the trial judge . . . postpones until after trial the final
        conviction and punishment of the accused or his lawyer for
        several or many acts of contempt committed during the trial,
        there is no overriding necessity for instant action to preserve
        order and no justification for dispensing with the ordinary
        rudiments of due process. Mayberry v. Pennsylvania, supra, at 463-
        64; Groppi v. Leslie, 404 U.S. 496, 499-507, Taylor v. Hayes, 418
        U.S., at 497. Moreover, it is normally the trial judge who, in
        retrospect, determines which and how many acts of contempt the
        citation will cover. It is also he or, as is the case here, another
        judge who will determine guilt or innocence absent a jury, who
        will impose the sentences and who will determine whether they
        will run consecutively or concurrently. In the context of the post-
        verdict adjudication of various acts of contempt, it appears to us
        that there is posed the very likelihood of arbitrary action that the
        requirement of jury trial was intended to avoid or alleviate. Cf.
        ibid.

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Id. at 515. As a result of the above, the Court recognized that multiple acts of

contempt are not considered “separate offenses” if they “arose from a single

trial, were charged by a single judge, and were tried in a single proceeding.” Id.

at 517. If there is but a single act or episode of contempt, the maximum

aggregate sentence can be no longer than six months without a jury trial or the

defendant’s waiver thereof. See id.


Notwithstanding Wine’s reliance on Codispoti, he has failed to demonstrate that

the trial court here would have been compelled to reduce the length of his

sentence, had trial counsel objected. In Codispoti, the Court vacated the

aggregate sentence that exceeded 180 days, reasoning that “[i]n the context of

the post-verdict adjudication of various acts of contempt, . . . there is . . . the very

likelihood of arbitrary action that the requirement of jury trial was intended to

avoid or alleviate.” Id. at 515 (emphasis added).


Unlike Codispoti, there was no “post-verdict” adjudication of Wine’s

contemptuous episodes. Rather, the trial court imposed a sentence of 180 days

on each count immediately after determining that Wine had committed a

particular contemptuous act. As a result, the rule set forth in Codispoti is not

instructive here, and Wine has failed to show that an objection to the length of

his sentence on this basis would have been sustained.


Wine further contends that his trial counsel was ineffective for failing to object

to the length of his sentence in light of this court’s decisions in Mockbee and

Fearman v. State, 89 N.E.3d 435 (Ind. Ct. App. 2017). First, we note that both


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cases were decided after Wine’s direct appeal was decided. As a result, trial

counsel cannot be said to have been ineffective for failing to challenge Wine’s

sentence on this basis. See Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)

(holding that counsel cannot be held ineffective for failing to anticipate or

effectuate a change in existing law) (citing Trueblood v. State, 715 N.E.2d 1242,

1258 (Ind. 1999)); see also Timberlake v. State, 753 N.E.2d 591, 605 (Ind. 2001)

(counsel was not ineffective for failing to raise an issue at a particular stage of

the proceedings when there was no appellate authority establishing the point at

which the issue should be presented).


Moreover, we cannot say that there was a reasonable probability that the trial

court would have vacated all but 180 days of the sentence had Wine’s trial

counsel raised the issue. More specifically, the rule announced in Mockbee does

not control the outcome here. There, the trial court conducted a brief hearing

on two of the defendant’s pending motions. Throughout the hearing, Mockbee

taunted opposing counsel, “constantly interrupt[ed] the Court on a continuing

basis,” and directed profanity toward the judge. 80 N.E.3d at 919, 921.

Mockbee also made “glaring, smirking remarks” and “face gestures to the

court” during the hearing. Id. at 919. As Mockbee’s behavior continued, the

trial court had him removed from the courtroom, observing that it was “not

going to subject the parties or a jury to this kind of behavior. . . .” Id. The trial

court subsequently entered its order and


        ‘found [Mockbee] in contempt and ordered a sentence of one
        hundred and eighty (180) days and ordered an additional one

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020           Page 16 of 28
        hundred and eighty (180) days for continued actions, words, and
        disruptive behavior.’ (App. Vol. 2 at 47). The trial court ordered
        ‘two separate sentences’ of six months ‘based upon defendant’s
        failure to cease his disruptive behavior after the imposition of the
        first contempt sentence.’ (App. Vol. 2 at 49).


Id. at 920.


On appeal, a panel of this court determined that the defendant’s behavior

amounted to a single episode for the purposes of sentencing because it:


        occurred within a single proceeding, lasted a relatively short
        period of time, was not interrupted by another proceeding, and
        flowed from a single criminal intent—to disrespect and disrupt
        the administration of justice. Even though [the defendant]
        continued to behave in a contemptuous manner after the initial
        contempt citation, his continuing behavior was in response to the
        trial court’s initial contempt citation and flowed from the same
        criminal objective.


Id. at 922. The Mockbee Court further explained that “where, as here, multiple

acts of contempt form a single contemptuous episode, . . . a single punishment

of not more than six months may be imposed, without a jury trial.” Id.; see also

Fearman, 89 N.E.3d at 437 (holding that the defendant’s disrespectful comments

and remarks at a brief sentencing hearing amounted to only one episode of

contempt because, as were the circumstances in Mockbee, the contemptuous

behavior occurred at a single proceeding, lasted only a short time, and flowed

from the sole intent to disrupt the proceedings). Notwithstanding this result,

the Mockbee Court went on to observe that



Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020          Page 17 of 28
        determining whether multiple acts of contemptuous behavior
        forms a single contemptuous episode is a fact sensitive
        determination. We can imagine scenarios within a single hearing that
        might justify multiple contempt citations. For example, a litigant
        whose outburst receives a contempt citation might be properly
        cited again after a period of calm behavior within the same
        proceeding. See Smith v. State, 382 Md. 329, 855 A.2d 339 (Md.
        2004) (three acts of contempt were separate and discrete
        supporting three convictions).


80 N.E.3d at 922 (emphasis added).


Under the circumstances here, it is apparent that the trial court dealt with each

instance of Wine’s contemptuous behavior as a separate and discrete matter at

different points, and every day, during the course of the three-day jury trial.

Although the trial court chose to charge Wine with only five counts of criminal

contempt, the trial court had cited Wine for contempt “at least fifteen times”

and “had [him] removed from the courtroom several times.” Wine, slip op. at

6. Moreover, there were other occasions during the trial where the judge

overlooked Wine’s behavior that otherwise might have constituted contempt-

worthy comments and remarks. The record shows that there were, in fact,

sufficient breaks after each disruption. After each finding of contempt, the trial

judge immediately steered from the interruption back to the trial proceedings.

The record demonstrates that Wine’s remarks and comments amounted to

separate contemptuous incidents.


In sum, we do not find Wine’s reliance on Codispoti or Mockbee controlling in

these circumstances. Mockbee had not been decided at the time of Wine’s direct

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020               Page 18 of 28
appeal, and the record supports the conclusion that Wine committed separate

acts of criminal contempt over the course of his three-day jury trial. For these

reasons, Wine has failed to show that an objection to the 720-day aggregate

sentence on this basis would have been sustained. As a result, the post-

conviction court properly concluded that Wine was not denied the effective

assistance of trial counsel.


                        B. Ineffective Assistance of Appellate Counsel


Wine also claims that his appellate counsel was ineffective for failing to raise

the sentencing issue discussed above on direct appeal. Wine advances the same

arguments about appellate counsel as he does with respect to trial counsel.


The standard of review for a claim of ineffective assistance of appellate counsel

is the same as that for trial counsel. Massey v. State, 955 N.E.2d 247, 257 (Ind.

Ct. App. 2011) (citing Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997)). The

defendant must show that counsel’s performance was deficient in that counsel’s

representation fell below an objective standard of reasonableness and that but

for appellate counsel’s deficient performance, there is a reasonable probability

that the result of the appeal would have been different. Id. at 257-58 (citing

Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007)). Our Supreme Court has

recognized three categories of alleged appellate counsel ineffectiveness: (1)

denying access to an appeal; (2) failing to raise an issue on appeal; and (3)

failing to present an issue completely and effectively. Bieghler, 690 N.E.2d at

193-95. As with claims of ineffective assistance of trial counsel, the contention


Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020         Page 19 of 28
that appellate counsel was ineffective may first be disposed of on the prejudice

inquiry alone. Vermillion, 719 N.E.2d at 1208; Williams, 706 N.E.2d at 154.


We previously addressed the issue as to “whether the sentence for contempt

findings was proper” in Wine’s direct appeal. Id. at 1-2. Specifically, we

concluded that Wine’s sentences, for four instances of contempt, were not

inappropriate, not manifestly unreasonable, and not unreasonable. Id. at 6.

Thus, Wine’s challenge at this juncture best fits category (3) above, namely

failing to present an issue completely and effectively.


Wine’s argument regarding the ineffective assistance of appellate counsel fails

for the same reason that Wine’s assertion of ineffective assistance of trial

counsel fails. The entirety of Wine’s claim, citing Codispoti, rests on the

assertion that his contempt of court did not involve multiple, separate examples

of contempt and therefore, the aggregate sentence could not exceed 180 days

because he did not waive his right to a jury trial. See Appellant’s Brief at 12, 18.

The circumstances here involved multiple instances of contempt and not one

single act, thus removing the sentencing limits or proscriptions described by

Codispoti and Mockbee. Moreover, Wine acknowledges that Mockbee had not yet

been decided at the time of his direct appeal. Appellate counsel cannot be

ineffective for not arguing case law that does not yet exist. See Timberlake, 753

N.E.2d at 605. For these reasons, Wine’s claim that his appellate counsel was

ineffective fails.


Judgment affirmed.


Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020           Page 20 of 28
Tavitas, J., concurs.


May, J., concurs in result with separate opinion.




Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020   Page 21 of 28
                                            IN THE
    COURT OF APPEALS OF INDIANA

Bobby D. Wine,
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-2268
        v.

State of Indiana,
Appellee-Plaintiff




May, Judge, concurring in result.


I respectfully concur in result but write separately to address the State’s

argument that Wine’s appeal should be dismissed and to emphasize the

importance that the procedural posture of the case played in determining my

vote.


          1. Applicability of Indiana Post-Conviction Rules

I agree with Judge Altice that Wine’s appeal should not be dismissed. In T.T. v.

State, we held criminal contempt did not constitute a criminal offense if

committed by an adult, and therefore the trial court erred in adjudicating T.T.

delinquent and committing her to the Indiana Department of Correction under

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020                      Page 22 of 28
the portion of the delinquency statute that required finding the juvenile

committed an act that would be a criminal offense if committed by an adult.

439 N.E.2d 655, 657 (Ind. Ct. App. 1982). The State contends, based on T.T.,

that if criminal contempt does not constitute a criminal offense, then a person

may not collaterally attack a criminal contempt finding via a petition for

postconviction relief because the Indiana Post-Conviction Rules apply only to

persons convicted of or sentenced for a crime. I believe the State’s argument

construes our holding in T.T. too broadly.


As Judge Altice notes, criminal contempt is meant to be punitive. Slip op. at *8.

A person charged with contempt is entitled to certain constitutional safeguards

because of the potential penalties, including loss of liberty. Id. at *8-*9. Given

that a post-conviction proceeding is the “preferred forum” for deciding claims

of ineffective assistance of counsel, I agree with Judge Altice that we should

allow a person found in criminal contempt to collaterally challenge the

contempt finding by filing a petition for postconviction relief. Id. at *10 (quoting

Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998)).


                      2. Ineffective Assistance of Counsel

The trial court sanctioned Wine for four contemptuous acts that occurred

within five pages of transcript. Much to the trial court’s credit, the judge

patiently and repeatedly explained to Wine that he was to remain quiet during

trial and to allow his attorney to address the court on his behalf. Nevertheless,

during the State’s direct examination of a witness, Wine stated, “Your Honor,

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020          Page 23 of 28
at this time I would like to object.” (Prior Case Tr. Vol. II at 21.) The trial court

excused the jury and stated to Wine, “You can’t follow a simple admonition.

You are now in contempt—one hundred and eighty days that doesn’t get good

time credit.” (Id. at 22.) The trial court found Wine in contempt additional

times during the following exchange:


        Court: Stop. Your attorney has a voice of his own. You do not
        speak during these proceedings. I’m telling you for the last time
        you don’t say anything while this trial is going on unless it’s a
        response to a question from me, or the State, or your attorney.
        Nothing. Not hello, goodbye, whatever. You hear me? Do you
        hear me?


        Wine: I hear you. I don’t understand you.


        Court: You don’t understand when I tell you to not speak unless
        you’re - -


        Wine: Your Honor - -


        Court: - - requested by me?


        Wine: Your Honor - -


        Court: That’s it. That’s it. One hundred and eighty days. Now
        I’m gonna bring the jury back in.


        Wine: Well, he better start doing his job.


        Court: (Inaudible). Stop talking.


Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020            Page 24 of 28
        Wine: Well - -


        Court: That it. That’s two, one hundred and eighty days.


        Wine: Give me a third one.


        Court: How about three hundred and sixty? Okay - -


(Id. at 23.) The trial court again instructed Wine to remain quiet unless asked a

question by the court, the prosecutor, or his attorney. Before the judge brought

the jury back into the courtroom, Wine turned to someone in the gallery and

said, “All right. Is something funny?” (Id. at 25.) The trial court then held

Wine in contempt again.


Clearly, Wine was not dissuaded from continuing his disrespectful behavior

after being held in contempt and sanctioned. At that point, the court would

have best served the objective of maintaining order by removing Wine from the

courtroom. See Wilson v. State, 30 N.E.3d 1264, 1270-71 (Ind. Ct. App. 2015)

(holding trial court did not abuse its discretion by removing defendant from trial

when defendant continued to act disrespectfully after being held in contempt),

trans. denied. If we were evaluating this case on direct appeal, I would vote to

remand the case. In that situation, the trial court could choose to modify

Wine’s sentence to 180 days on the grounds that because the contempt findings

and imposition of sanctions occurred in such quick succession, they amount to

only one episode of contempt. See Fearman v. State, 89 N.E.3d 435, 437 (Ind. Ct.

App. 2017) (holding cursing and threatening behavior that “occurred during a

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020         Page 25 of 28
single proceeding, lasted a short period of time, was not interrupted by any

other proceeding and flowed from [defendant’s] single intent to disrupt the

court proceedings” constituted a single, contemptuous episode); see also Mockbee

v. State, 80 N.E.3d 917, 923 (Ind. Ct. App. 2017) (holding defendant serve one

six-month sentence for contempt consecutive to his sentences for his criminal

convictions), trans. denied. Or, the trial court could conduct a jury trial on the

multiple charges of contempt, and if the jury found Wine guilty, the court could

impose a sentence greater than six months. See Codispoti v. Pennsylvania, 418

U.S. 506, 517 (Ind. 1974) (holding in the context of a post-verdict adjudication

for contempt, an alleged contemnor is entitled to a jury trial if the sentence for

contempt is to exceed six months).


However, this case is not before us on a direct appeal. Four of the trial court’s

contempt findings and the 180-day sentences for each finding were affirmed on

direct appeal. Wine v. State, No. 85A02-1307-CR-610, 2014 WL 684151 (Ind.

Ct. App. Feb. 20, 2014). Wine’s appeal in the case at bar follows the denial of

his petition for post-conviction relief on the basis that both his trial counsel and

his appellate counsel were ineffective for not arguing that Wine was entitled to

a jury trial. Precedent dictates that we do not declare counsel ineffective for not

making a novel argument.


For example, in Smylie v. State, our Indiana Supreme Court explained that

neither a trial lawyer nor an appellate lawyer would be considered ineffective

for failing to argue a defendant’s sentence was unconstitutional pursuant to a

rule later announced in a United States Supreme Court decision. 823 N.E.2d

Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020           Page 26 of 28
679, 690 (Ind. 2005), cert. denied, 546 U.S. 976 (2005). To impose such a duty

would “drastically alter the burden imposed on counsel as to what constitutes

effective assistance to their clients.” Id. We judge an attorney’s performance

based on the case law at the time and will not penalize an attorney for not

anticipating changes in the law. Wieland v. State, 848 N.E.2d 679, 683 (Ind. Ct.

App. 2006), reh’g denied, trans. denied, cert. denied, 549 U.S. 1038 (2006).


Wine’s postconviction counsel draws parallels between his case and the United

States Supreme Court’s opinion in Codispoti. However, as Judge Altice explains,

“Unlike Codispoti, there was no ‘post-verdict’ adjudication of Wine’s

contemptuous episodes. Rather, the trial court imposed a sentence of 180 days

on each count immediately after determining that Wine had committed a

particular contemptuous act.” Slip op. at *15. Justice White, writing for the

plurality in Part II of Codispoti, recognized “[t]here are recurring situations

where the trial judge, to maintain order in the courtroom and the integrity of

the trial process in the face of an actual obstruction of justice convicts and

sentences the accused or the attorneys for either side for various acts of

contempt as they occur.” 418 U.S. at 513 (internal citations and quotation

marks omitted). That is what happened in Wine’s case. The court summarily

convicted and sentenced Wine for each act of contempt as it occurred.


Justice Marshall did not join Part II of Justice White’s opinion in Codispoti. He

stated in his concurring opinion:


        Where the contemptuous acts arose out of a single course of
        conduct by the defendant, I think that they should be treated as a
Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020           Page 27 of 28
        single serious offense for which the Sixth Amendment requires a
        jury trial, whether the judge seeks to use his summary contempt
        power in individual instances during trial or tries the contempts
        together at the end of trial.


Id. at 519-20. Justice Marshall’s concurrence was prescient because Indiana law

has since evolved to conform with his beliefs regarding contempt. However,

Wine’s attorneys were not ineffective for failing to argue the court should adopt

the position stated in Justice Marshall’s concurrence, but unsupported by the

rest of the Court, because the Indiana law subsequent to Codisponti was not in

existence at the time of Wine’s trial. See Gann v. State, 550 N.E.2d 73, 75 (Ind.

1990) (holding petitioner’s trial counsel was not ineffective when “he did not

make an objection to an instruction which had not yet been held to be reversible

error”).


I vote to affirm the denial of Wine’s petition for postconviction relief because

there was not any Indiana case law available at the time of Wine’s trial or his

direct appeal to indicate Wine was entitled to a jury trial before the court

imposed sentences for contempt which totaled over 180-days. I recognize

Justice Marshall advocated for such a result in Codispoti. Nonetheless, I will not

vote to hold that Wine’s attorneys were ineffective for failing to advance such

an argument.




Court of Appeals of Indiana | Opinion 19A-PC-2268 | May 27, 2020         Page 28 of 28
