                                                                               FILED
                                                                          Jul 19 2017, 5:38 am

                                                                               CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                           Curtis T. Hill, Jr.
      Lawrenceburg, Indiana                                      Attorney General of Indiana
                                                                 Chandra K. Hein
                                                                 Deputy Attorney General



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Brandon Mockbee,                                           July 19, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 15A01-1701-CR-22
              v.                                                 Appeal from the Dearborn Circuit
                                                                 Court
                                                                 The Honorable James D.
      State of Indiana,                                          Humphrey, Judge
                                                                 Trial Court Cause No.
      Appellee-Plaintiff.
                                                                 15C01-1607-F5-049



      Pyle, Judge.


                                         Statement of the Case
[1]   Brandon Mockbee (“Mockbee”) appeals the trial court’s finding that he was

      twice in direct criminal contempt of the court and the trial court’s sentence that

      Mockbee serve one year in jail. Mockbee argues that his behavior did not rise

      to the level of a contemptuous act required for two findings of direct contempt

      Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017                      Page 1 of 12
      and that the trial court was not authorized to sentence him to more than six

      months in jail for direct contempt without a jury trial. We conclude that the

      trial court did not err in finding Mockbee in direct contempt. However,

      because we conclude that there was only one continuous act of contempt, we

      reverse the trial court’s finding of two acts of contempt and remand to the trial

      court to enter a sentence of six months.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                       Issue
              Mockbee raises three issues, which we consolidate and restate as
              whether his behavior constituted a single episode of contempt.


                                                       Facts
[3]   In July 2016, the State charged Mockbee with two counts of Level 5 felony

      burglary and one count of Level 5 felony conspiracy to commit burglary, and it

      alleged that he was an habitual offender. Mockbee was initially represented by

      counsel, but he then chose to represent himself and had two attorneys acting as

      standby counsel. Mockbee filed numerous motions, most of which the trial

      court described as “frivolous and repetitive.” (Tr. 40). As a result, the trial

      court held “almost 40 hours” of hearings on his motions. (Tr. 40). Mockbee

      was removed from the courtroom during those hearings “for disruptive and

      threatening behavior” and was warned about his constant unruly actions. (Tr.

      39).




      Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017     Page 2 of 12
[4]   On November 29, 2016, the trial court held a final hearing on Mockbee’s

      pending motions, which included a motion to suppress and a motion to sever.

      Mockbee represented himself, and, during the hearing, he interrupted the judge,

      confused the witnesses, and asked questions that had previously been answered.

      During an attempt to play a video, Mockbee taunted opposing counsel by

      stating, “Get the Discovery, quit hiding it, we’re going to trial on the 5th, are

      you scared? I’m not.” (Tr. 39). The court interjected that it had “had enough”

      of Mockbee’s behavior and noted for the record that Mockbee was “constantly

      interrupting the Court on a continuing basis” and “ha[d] been warned by the

      Court countless times for his disruptive behavior.” (Tr. 39). The trial court

      noted that Mockbee’s behavior was “a deliberate attempt to make a circus of

      our legal system” and found that Mockbee had forfeited his right to self-

      representation. (Tr. 41).


[5]   The hearing then continued with Mockbee’s standby counsel representing him.

      While Mockbee’s counsel was speaking, Mockbee “ma[de] some kind of

      gesture with his hand or finger” to the trial court, and made “glaring, smirking

      remarks” and “face gestures at the Court.” (Tr. 50). Mockbee again

      interrupted the trial court and counsel during the proceeding and had to be

      reminded that his counsel was now representing him. The trial court warned

      Mockbee that he would be removed from the courtroom if he continued his

      disruptive behavior. Mockbee again interjected when the trial judge was

      speaking and was ordered to leave the courtroom. Mockbee then said, “[f]uck




      Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017     Page 3 of 12
you,” as the officers removed him. (Tr. 51). The trial judge had the officers

bring Mockbee to the bench where the following exchange occurred:


     MR. MOCKBEE: Go ahead; say what you got to say.
     THE COURT: The Court is going to say -
     MR. MOCKBEE: Say it please; that you’re bias[ed], you[’re]
     unprejudicial [sic], you’re scared to give somebody a fair trial in this
     Courtroom! I filed a police report against you and [defense counsel].
     Please say it, because all the remarks –
     THE COURT: Mr. Mockbee –
     MR. MOCKBEE: – you make as a Judge when you’re not in control
     and you’re not in the situation – God have mercy on your soul, sir!
     THE COURT: Okay, take him out of here.
     MR. MOCKBEE: Now contempt that, please!
     THE COURT: Okay, you are found in direct contempt of this Court.
     MR. MOCKBEE: Thank you.
     THE COURT: I am going to order, based upon your continued
     misbehavior in this Courtroom –
     MR. MOCKBEE: Please do so –
     THE COURT: Six months; six months –
     MR. MOCKBEE: – because your behavior is what’s been
     distinguished here, sir.
     THE COURT: – make it nine months.
     MR. MOCKBEE: Your very distinguished behavior has been an
     absolute disgrace –
     THE COURT: Get him out of here.
     MR. MOCKBEE: – in this Courtroom!
     THE COURT: Okay, Mr. Mockbee…
     MR. MOCKBEE: And I don’t back down on you for fear of you, sir!


Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017     Page 4 of 12
           THE COURT: Okay, Mr. Mockbee has just got himself another six
           months –
           MR. MOCKBEE: Please man.
           THE COURT: – so he’s looking at, I’m going to make it one year
           additional.


      (Tr. 51-53). After Mockbee left the courtroom, the trial court noted that his

      “behavior at this time ha[d] continued” and that the trial court was “not going

      to subject the parties or a jury to this kind of behavior . . . .” (Tr. 53). The trial

      court found that Mockbee was in “direct contempt” and that “he w[ould] be

      sentenced accordingly[.]” (Tr. 53). The hearing then continued without

      Mockbee present.


[6]   On December 5, 2016, the trial court entered its order of direct contempt. The

      trial court “found [Mockbee] in contempt and ordered a sentence of one

      hundred and eighty (180) days and ordered an additional one 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). Mockbee now

      appeals.1




      1
       Mockbee was later convicted of multiple counts following a jury trial, and he separately appeals those
      convictions under appellate cause number 15A01-1703-CR-483.

      Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017                           Page 5 of 12
                                                    Decision
[7]   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.” Hopping v. State, 637 N.E.2d 1296,

      1297 (Ind. 1994). Indeed, “[a]ny act which manifests a disrespect and defiance

      of a court may constitute direct criminal contempt.” Id. (emphasis in original).

      “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. at 1296. “On appeal, we afford great deference to trial

      courts’ contempt decisions.” Carroll v. State, 54 N.E.3d 1081, 1085 (Ind. Ct.

      App. 2016). Accordingly, we accept as true the statements of facts entered by

      the trial court. Id.


[8]   We note that the direct contempt statute provides, in relevant part, that:


          (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 and engaged in the transaction of business
          is considered guilty of 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;
              (2) by talking, moving about, or by signs, or gestures; or
              (3) in any other manner.



      Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017   Page 6 of 12
       I.C. § 34-47-2-1. “Indiana courts have long held that ‘[d]isorderly conduct,

       insulting demeanor to the court, and a disobedience of its orders in facie curiae

       constitute a direct contempt.’”2 Carroll, 54 N.E.3d at 1086 (quoting Holman v.

       State, 105 Ind. 513, 5 N.E. 556, 557-58 (1886)). “Indiana appellate courts will

       only interfere with a contempt finding ‘where it clearly appears the acts do not

       constitute contemptuous acts.’” Id. at 1085-86 (quoting In re Nasser, 644 N.E.2d

       93, 95 (Ind. 1994)). “Contemptuous acts are those in opposition to a court’s

       authority, justice and dignity.” Nasser, 644 N.E.2d at 95.


[9]    Contempt sanctions are essential to ensuring that judicial processes are not

       undermined. Hopping, 637 N.E.2d at 1297. “[W]here no legislative penalty is

       specified and sentencing is left to the discretion of the judge, as is often true in

       the case of criminal contempt, the pettiness or seriousness of the contempt will

       be judged by the penalty actually imposed.” Holly v. State, 681 N.E.2d 1176,

       1177 (Ind. Ct. App. 1997). “[S]entences up to six months may be imposed for

       criminal contempts without guilt or innocence being determined by a jury.” Id.


[10]   First, it must be noted that from time to time difficult litigants appear in court

       and disturb proceedings with foul and abusive behavior. During those times,

       even the most patient judges must use contempt powers to maintain order and

       the dignity of Indiana’s courts. However, contempt powers may not be used to

       “‘heal the wounded sensibilities of a judge; it may be invoked only when the




       2
           In facie curiae means “[i]n the presence of the court.” BLACK’S LAW DICTIONARY 896 (10th ed. 2014).


       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017                            Page 7 of 12
       offending act impedes or disturbs the administration of justice.’” Grimm v.

       State, 240 Ind. 125, 128, 162 N.E.2d 454, 456 (Ind. 1959) (quoting Francis v.

       People of Virgin Islands, 11 F.2d 860, 865 (3d Cir. 1926)).3 When warranted, a

       contempt citation should be imposed promptly, but it must be kept within

       prudential limits. Id. at 457. Where the legislature has “prescribed no

       maximum sentence for criminal contempt, courts have a special duty to

       exercise their extraordinary contempt powers with the ‘utmost sense of

       responsibility and circumspection.’” Matter of Craig, 552 N.E.2d 53, 56 (Ind. Ct.

       App. 1990) (quoting United States v. Misenheimer, 677 F. Supp 1386, 1388 (N.D.

       Ind. 1988)). In other words, “a sentence from criminal contempt should reflect

       the least possible power adequate to the end proposed . . . .” Id. (internal

       quotation marks and citation omitted).


[11]   In this case, the record of the November 29, 2016 hearing is filled with evidence

       of Mockbee’s contemptuous behavior. Mockbee repeatedly interrupted the

       proceedings, made inappropriate outbursts, and directed profanity toward the

       trial court. See Holly, 681 N.E.2d at 1178 (finding of direct contempt affirmed

       when defendant directed profanity at the trial court). However, the issue in this

       case is whether multiple acts of contempt within a single hearing may be

       punished separately or whether they constitute a single episode of contempt.




       3
        Through this citation, we are not suggesting that the trial court in this case used its contempt powers with
       an improper motive.

       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017                             Page 8 of 12
[12]   Other jurisdictions have prohibited multiple punishments for a single episode of

       contempt. Of particular note is the Vermont Supreme Court’s opinion in State

       v. North, 978 A.2d 435, 436 (Vt. 2009). In that case, the court highlighted the

       following exchange between a defendant and trial court after sentencing:


             DEFENDANT: Go fuck yourself, Your Honor.

             COURT: Bring him back here please. Bring him back here. I’m holding
             the Defendant in contempt of Court. He’ll serve an additional five to six
             months for contempt of Court for cursing at the judge.

             DEFENDANT: Go fuck yourself—

             COURT: Okay. That’s another five to six months for contempt of Court
             consecutive. Do you want to keep going, Mr. North?

             DEFENDANT: [unclear]

             COURT: Another five to six months. Fifteen to eighteen months
             consecutive, in addition to the three to twenty years.

       North, 978 A.2d at 436. The trial court entered three findings of contempt and

       ordered the sentences served consecutively. The defendant appealed.


[13]   In determining whether this series of profane remarks represented “discrete

       contempts” or “a single contemptuous episode,” the Vermont Supreme Court

       focused on “the factors of time and place and whether the offenses were

       motivated by a single criminal objective.” Id. at 439 (internal quotation marks

       and citation omitted). The court concluded that because the verbal exchange

       occurred in one location, lasted a short period of time, and was not interrupted

       by other proceedings, it should be considered one single contemptuous episode.

       “Furthermore, defendant’s original insult and his renewed attack in response to


       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017   Page 9 of 12
       the court’s contempt sentence flowed from the single criminal objective – to

       flaunt his disrespect for authority in open court.” Id.


[14]   We are persuaded that the reasoning of the Vermont Supreme Court is sound

       and instructive in this case. Here, Mockbee repeatedly interrupted the trial

       court, made faces and hand gestures that were disruptive, taunted opposing

       counsel, used profanity, and refused to respect the dignity and authority of the

       trial court. It was appropriate for the trial court to find Mockbee in direct

       contempt of court. However, Mockbee’s behavior 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 Mockbee 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. (App. Vol. 2 at 49) (“The Court

       finds that two separate sentences of 6 months (180 days) were imposed based

       upon defendant’s failure to cease his disruptive behavior after the imposition of

       the first contempt sentence.”). We are aware that 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, 855

       A.2d 339 (Md. Ct. App. 2004) (three acts of contempt were separate and


       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017   Page 10 of 12
       discrete supporting three convictions). However, where, as here, multiple acts

       of contempt form a single contemptuous episode, we hold that a single

       punishment of not more than six months may be imposed, without a jury trial.

       This rule allows Indiana’s judges to maintain order and dignity while avoiding

       the temptation to become embroiled in a battle of wills with an unruly litigant.

       See United States v. Murphy, 326 F.3d 501, 504 n.3 (4th Cir. 2003) (the potential

       exists for a defendant to amass decades of prison time as the result of a

       prolonged diatribe); Johnson v. State, 642 A.2d 259, 263-64 (Md. Ct. Spec. App.

       1994) (series of insults interrupted only by a judge’s pronouncements that

       defendant was guilty of contempt which may have provoked defendant into

       repeated instances of contempt, constituted only one contempt offense).


[15]   As to what should happen to Mockbee’s second contempt citation, the

       reasoning of the Vermont Supreme Court suggests that it should be served

       concurrently with the first citation. North, 978 A.2d at 439-40. However, we

       believe that vacating the second contempt citation is more consistent with our

       reasoning in Matter of Craig, in which we explained, that “a sentence for

       criminal contempt should reflect the least possible power adequate to the end

       proposed . . . .” Matter of Craig, 552 N.E.2d at 56 (internal quotation marks and

       citation omitted). Other jurisdictions have followed this approach. See State v.

       Lingwall, 637 N.W.2d 311, 315 (Minn. Ct. App. 2001); Butler v. State, 330

       So.2d 244 (Fl. Ct. App. 1976), cert. denied. As a result, we affirm the trial

       court’s first finding of contempt. However, because we find that Mockbee’s

       behavior constituted a single episode of criminal contempt, we vacate the trial


       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017   Page 11 of 12
       court’s second finding and corresponding six month sentence for contempt. We

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

       contempt and a six month sentence to be served consecutive to Mockbee’s

       sentence from his criminal convictions under cause number 15C01-1607-F5-

       049.


[16]   Affirmed in part, reversed in part, and remanded.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 15A01-1701-CR-22 | July 19, 2017   Page 12 of 12
