In Re the Contempt of Dorothy Davis v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 31, 2013
• Docket: 49A05-1307-CR-337
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 31 2013, 5:34 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:

DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN RE THE CONTEMPT OF ) DOROTHY DAVIS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1307-CR-337 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc T. Rothenberg, Judge Cause No. 49G01-1108-FA-61283

October 31, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Dorothy Davis appeals the trial court’s imposition of an 180-day sentence for indirect

contempt after Davis failed to appear in court as a trial witness. The sole issue presented for

our review is whether Davis’s sentence is appropriate in light of the nature of the offense and

her character. Concluding that Davis has not met her burden to demonstrate that her sentence

is inappropriate, we affirm.

Facts and Procedural History

Davis’s son, Kevin, is charged with attempted murder and robbery. On April 9, 2013,

Indianapolis Metropolitan Police Officer John T. Green served Davis with a subpoena to

appear as a witness in Kevin’s trial on April 15, 2013. Davis signed for the subpoena in

Officer Green’s presence. Thereafter, Davis did not appear in court on April 15, 2013. The

trial court set a show cause hearing for Davis for the following day. On April 16, 2013, the

State charged Davis with indirect contempt of court. The State also filed a petition for body

attachment and a hearing to show cause why Davis should not be held in contempt for failure

to appear. Davis appeared in court later that day, and the trial court advised her of the

indirect contempt charge pending against her. The court ordered Davis to appear in court on

May 23, 2013. Davis failed to appear on that date. The trial court set a show cause hearing

for Davis for June 5, 2013, and reset her son’s criminal trial for June 12, 2013. Davis again

failed to appear on June 5, 2013. The trial court ordered another show cause hearing for June

12, 2013. Davis failed to appear on June 12, 2013, and the trial court issued a warrant for her

2 arrest. By June 17, 2013, Davis was arrested and in custody. The trial court appointed

counsel to represent her and set a contempt hearing for July 3, 2013.

At the contempt hearing, Davis testified that Kevin’s defense counsel, Heather Barton,

advised Davis and her daughters not to appear in court. Barton denied ever so advising

Davis. Barton testified that she communicated with Davis through text message and that, on

April 15, 2013, she texted Davis that she needed to appear in court or that a warrant would be

issued for her arrest. Barton testified that, prior to the next trial date, she texted Davis that

the trial “was a go,” and that Davis responded that she was not going to appear. Tr. at 79.

Barton stated that she texted back that she could not advise Davis to disobey a court order.

Barton testified that she never advised Davis not to appear in court and that she informed the

State each time she learned that Davis’s intent was not to appear.

Following the hearing, the trial court found Davis guilty of indirect contempt. The

trial judge determined that he would have to recuse himself from Kevin’s case because he

now had knowledge of the witnesses. Moreover, Barton withdrew as Kevin’s attorney. The

trial court held a sentencing hearing on July 10, 2013. The court sentenced Davis to ninety

days in jail and ninety days on home detention. Thereafter, Davis filed her notice of appeal,

and on August 2, 2013, this Court granted a subsequent motion by Davis to expedite the

appeal. We will state additional facts in our discussion as necessary.

Discussion and Decision

Davis’s sole contention on appeal is that her 180-day sentence is inappropriate, and

she invites this Court to reduce her sentence. Contempt of court involves “disobedience of a

3 court which undermines the court’s authority, justice, and dignity.” City of Gary v. Major,

822 N.E.2d 165, 169 (Ind. 2005). The authority of a court to sanction a party for contempt is

among the inherent powers of a court to maintain its dignity, secure obedience to its process

and rules, rebuke interference with the conduct of business, and punish unseemly behavior.

Id. In Jones v. State, 847 N.E.2d 190 (Ind. Ct. App 2006), trans. denied, we discussed the

appellate review of sentences imposed after a finding of contempt. Specifically, we noted

that

before its repeal in 1987, Indiana Code Section 34-4-7-6 limited punishment for contempt to a fine of $500.00 and/or imprisonment of no more than three months. We have recognized, “in the absence of the statute, the power to punish contempt is limited by reasonableness.” In re Gardner, 713 N.E.2d 346, 347 (Ind. Ct. App. 1999) (citing Hopping v. State, 637 N.E.2d 1294, 1297 (Ind. 1994), cert. denied, 513 U.S. 1017, 115 S. Ct. 578, 130 L. Ed. 2d 493 (1994)). In Hopping, our Supreme Court noted that punishment for contempt is generally a matter left to the sound discretion of the trial court and then applied the manifestly unreasonable standard. Under the manifestly unreasonable standard, a reviewing court did not revise a sentence authorized by statute unless it determined that no reasonable person could find the sentence appropriate given the particular offense and character of the offender. Now, however, we may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender. However, both the old and the new standards for revising sentences apply to sentences authorized by statute. Because there is no longer a statute setting out the punishment for contempt, it is unclear whether Appellate Rule 7(B) should apply in reviewing contempt sentences.

Id. at 201-02 (some citations and internal quotations omitted).

The parties here agree that the standard pursuant to which we should review Davis’s

sentence is the Indiana Appellate Rule 7(B) inappropriateness standard. Pursuant to Indiana

Appellate Rule 7(B), we may revise a sentence authorized by statute if, after due

4 consideration of the trial court’s decision, we find that the sentence “is inappropriate in light

of the nature of the offense and the character of the offender.” The defendant bears the

burden to persuade this Court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). However, as in Jones, we need not decide which test

should apply, because “under an inappropriateness, manifestly unreasonable, or simple

reasonableness test,” the trial court’s imposition of the maximum 180-day sentence “passes

muster.” See id. at 202. 1

Regarding the nature of the offense, Davis committed indirect contempt by failing to

appear in court as ordered on multiple occasions. She completely disobeyed the trial court’s

processes and rules and interfered with the court’s ability to conduct business. This case is

most egregious because Davis has interfered with and caused significant delay to a criminal

trial on the very serious offenses of attempted murder and robbery.

As for Davis’s character, her behavior in the current proceedings does not reflect

favorably upon her. She has exhibited disdain and complete disregard for the authority of the

court. The trial court did not find Davis’s purported excuse for her failure to appear to be

credible, and we see no reason to second-guess the trial court’s decision regarding the

punishment for her unseemly behavior. Davis has not met her burden to show that her 180-

1 Because the contempt proceeding in question was held without a jury, the maximum sentence that the trial court could have imposed was 180 days. Jones, 847 N.E.2d at 200 (citing Holly v. State, 681 N.E.2d 1176, 1178 (Ind. Ct. App. 1997)).

5 day sentence is inappropriate or manifestly unreasonable. We decline to revise her sentence

and affirm the sentence imposed by the trial court.

Affirmed.

BARNES, J., and PYLE, J., concur.