[Cite as State v. McDew, 2011-Ohio-1196.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : MICHELLE MCDEW : Case No. 2010CA0270 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2010CRB03716
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDEN L. PAXOS E. KELLY MIHOCIK 218 Cleveland Avenue, SW 250 East Broad P.O. Box 24218 Suite 1400 Canton, OH 44701-4218 Columbus, OH 43215 Stark County, Case No. 2010CA0270 2
Farmer, P.J.
{¶1} On August 24, 2010, appellant, Michelle McDew, appeared in the Canton
Municipal Court for arraignment on a charge of failure to appear for a show cause
hearing. Following her exchange with the judge, appellant shouted profanities and was
uncooperative. The judge immediately held appellant in contempt of court and
sentenced her to thirty days in jail. The sentence was journalized via judgment entry
filed August 24, 2010. On September 8, 2010, the remainder of appellant's sentence
was suspended on the condition of two years of good behavior.
{¶2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶3} "THE TRIAL COURT ERRED WHEN IT HELD MS. MCDEW IN
CRIMINAL CONTEMPT OF COURT WHEN SHE DID NOT ACTUALLY INTERFERE
WITH THE ADMINISTRATION OF JUSTICE. THERE WAS INSUFFICIENT
EVIDENCE, AS A MATTER OF LAW, TO HOLD MS. MCDEW IN CONTEMPT OF
COURT. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION; R.C.
2705.01; STATE V. DRAKE (1991), 73 OHIO APP.3D 640, 598 N.E.2D 115."
II
{¶4} "THE THIRTY-DAY SENTENCE IMPOSED BY THE TRIAL COURT WAS
NOT PROPORTIONAL TO MCDEW'S ACT, WHICH THE COURT ERRONEOUSLY
FOUND TO BE CONTEMPTUOUS. MS. MCDEW'S RIGHT TO BE FREE FROM
CRUEL AND UNUSUAL PUNISHMENT WAS VIOLATED WHEN THE TRIAL COURT Stark County, Case No. 2010CA0270 3
IMPOSED THAT SENTENCE. EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; SECTION 9, ARTICLE I, OHIO CONSTITUTION."
{¶5} Appellant claims there was insufficient evidence as a matter of law for the
trial court to find her guilty of direct criminal contempt of court as she did not actually
interfere with the administration of justice. We disagree.
{¶6} Pursuant to R.C. 2705.01, "[a] court, or judge at chambers, may
summarily punish a person guilty of misbehavior in the presence of or so near the court
or judge as to obstruct the administration of justice." As explained by our brethren from
the Tenth District in State v. Conliff (1978), 61 Ohio App.2d, 185, 189:
{¶7} "Because of the summary nature of a direct contempt conviction, the court
must be careful to guard against confusing actions or words which are contemptuous to
the judge's personal feelings or sensibilities and actions or words which constitute
punishable, criminal contempt of a summary nature because of posing an actual or
imminent threat to the administration of justice."
{¶8} "The power to determine the kind and character of conduct which
constitutes contempt of court rests in the sound discretion of the court and it has the
power to impose a penalty reasonably commensurate with the gravity of the offense."
Id. In order to find an abuse of discretion, we must determine the trial court's decision
was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶9} The encounter between the judge and appellant was brief. Appellant
argues her comments, although obnoxious and immature, did not amount to a Stark County, Case No. 2010CA0270 4
disruption. However, the record indicates her outburst occurred as another case was
called and the trial court was attempting to conduct judicial proceedings:
{¶10} "BY THE PROSECUTOR (calling the next case): James Perry.
{¶11} "BY MS. McDEW: Fuck this! It's bullshit!
{¶12} "BY THE COURT: Alright. That just earned you...
{¶13} "BY MS. McDEW: This is...
{¶14} "BY THE COURT: ...a thirty day vacation...
{¶15} "BY MS. McDEW: (Yelling) Sir!
{¶16} "BY THE COURT: ...in the Stark County jail, and if you...
{¶17} "BY MS. McDEW: (Yelling) Sir, I'm in college!
{¶18} "BY THE COURT: ...say anymore, we're gonna go up to…
{¶19} "BY MS. McDEW: (Yelling) I am in college! I am in college! I am
supposed to be in school…
{¶20} "BY THE COURT: Okay. That's enough.
{¶21} "(Ms. McDew continues yelling, but it is unintelligible.)
{¶22} "(Unintelligible commands by the jailer)
{¶23} "BY THE COURT: I told you to stop. You are…
{¶24} "BY MS. McDEW: But…
{¶25} "BY THE JAILER: NOW!
{¶26} "BY THE COURT: Madam, you are in contempt of court.
{¶27} "BY MS. McDEW: I am in college.
{¶28} "BY THE JAILER: NOW!
{¶29} "BY THE COURT: You are in contempt of court. Stark County, Case No. 2010CA0270 5
{¶30} "(Ms. McDew continues yelling unintelligibly as jailers are escorting
her from the bullpen)." T. at 2-3.
{¶31} By its very nature, direct contempt of court is a very subjective
determination. The magnitude of any given situation is never adequately portrayed by
the written transcript. Because of its subjective nature and the fact that the actual
dynamics of the situation are best viewed by the trial court, it is difficult to second-guess
the trial court.
{¶32} The courtroom dynamics are judged by the totality of the circumstances.
The ultimate responsibility for control of the courtroom lies with the judge. Here, the
incident occurred in the midst of an arraignment docket where other defendants,
attorneys, and the general public were present. The issues of courtroom control,
demeanor, and orderly proceedings are of upmost importance. There was more
occurring in the courtroom than just appellant's case.
{¶33} Upon review, we find there was sufficient evidence that appellant was
disruptive to the arraignment process and her outburst and failure to cooperate with the
jailer occurred during another's proceedings, thereby obstructing the administration of
justice. The trial court did not abuse its discretion in finding appellant in direct criminal
contempt of court.
{¶34} Assignment of Error I is denied.
{¶35} Appellant claims her thirty day sentence was disproportionate to the
severity of the contempt. We disagree. Stark County, Case No. 2010CA0270 6
{¶36} In State v. Kilbane (1960), 61 Ohio St.2d 201, syllabus, the Supreme
Court of Ohio held the following:
{¶37} "1. Courts, in their sound discretion, have the power to determine the kind
and character of conduct which constitutes direct contempt of court. In imposing
punishment for acts of direct contempt, courts are not limited by legislation but have the
power to impose a penalty reasonably commensurate with the gravity of the offense.
(State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331, paragraph four of the
syllabus, approved and followed.)
{¶38} "2. The primary purpose of a criminal contempt sanction must be to
vindicate the authority of a court and it, therefore, must be determinate.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. McDew, 2011-Ohio-1196.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, J. -vs- : : MICHELLE MCDEW : Case No. 2010CA0270 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2010CRB03716
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDEN L. PAXOS E. KELLY MIHOCIK 218 Cleveland Avenue, SW 250 East Broad P.O. Box 24218 Suite 1400 Canton, OH 44701-4218 Columbus, OH 43215 Stark County, Case No. 2010CA0270 2
Farmer, P.J.
{¶1} On August 24, 2010, appellant, Michelle McDew, appeared in the Canton
Municipal Court for arraignment on a charge of failure to appear for a show cause
hearing. Following her exchange with the judge, appellant shouted profanities and was
uncooperative. The judge immediately held appellant in contempt of court and
sentenced her to thirty days in jail. The sentence was journalized via judgment entry
filed August 24, 2010. On September 8, 2010, the remainder of appellant's sentence
was suspended on the condition of two years of good behavior.
{¶2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶3} "THE TRIAL COURT ERRED WHEN IT HELD MS. MCDEW IN
CRIMINAL CONTEMPT OF COURT WHEN SHE DID NOT ACTUALLY INTERFERE
WITH THE ADMINISTRATION OF JUSTICE. THERE WAS INSUFFICIENT
EVIDENCE, AS A MATTER OF LAW, TO HOLD MS. MCDEW IN CONTEMPT OF
COURT. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION; R.C.
2705.01; STATE V. DRAKE (1991), 73 OHIO APP.3D 640, 598 N.E.2D 115."
II
{¶4} "THE THIRTY-DAY SENTENCE IMPOSED BY THE TRIAL COURT WAS
NOT PROPORTIONAL TO MCDEW'S ACT, WHICH THE COURT ERRONEOUSLY
FOUND TO BE CONTEMPTUOUS. MS. MCDEW'S RIGHT TO BE FREE FROM
CRUEL AND UNUSUAL PUNISHMENT WAS VIOLATED WHEN THE TRIAL COURT Stark County, Case No. 2010CA0270 3
IMPOSED THAT SENTENCE. EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; SECTION 9, ARTICLE I, OHIO CONSTITUTION."
{¶5} Appellant claims there was insufficient evidence as a matter of law for the
trial court to find her guilty of direct criminal contempt of court as she did not actually
interfere with the administration of justice. We disagree.
{¶6} Pursuant to R.C. 2705.01, "[a] court, or judge at chambers, may
summarily punish a person guilty of misbehavior in the presence of or so near the court
or judge as to obstruct the administration of justice." As explained by our brethren from
the Tenth District in State v. Conliff (1978), 61 Ohio App.2d, 185, 189:
{¶7} "Because of the summary nature of a direct contempt conviction, the court
must be careful to guard against confusing actions or words which are contemptuous to
the judge's personal feelings or sensibilities and actions or words which constitute
punishable, criminal contempt of a summary nature because of posing an actual or
imminent threat to the administration of justice."
{¶8} "The power to determine the kind and character of conduct which
constitutes contempt of court rests in the sound discretion of the court and it has the
power to impose a penalty reasonably commensurate with the gravity of the offense."
Id. In order to find an abuse of discretion, we must determine the trial court's decision
was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶9} The encounter between the judge and appellant was brief. Appellant
argues her comments, although obnoxious and immature, did not amount to a Stark County, Case No. 2010CA0270 4
disruption. However, the record indicates her outburst occurred as another case was
called and the trial court was attempting to conduct judicial proceedings:
{¶10} "BY THE PROSECUTOR (calling the next case): James Perry.
{¶11} "BY MS. McDEW: Fuck this! It's bullshit!
{¶12} "BY THE COURT: Alright. That just earned you...
{¶13} "BY MS. McDEW: This is...
{¶14} "BY THE COURT: ...a thirty day vacation...
{¶15} "BY MS. McDEW: (Yelling) Sir!
{¶16} "BY THE COURT: ...in the Stark County jail, and if you...
{¶17} "BY MS. McDEW: (Yelling) Sir, I'm in college!
{¶18} "BY THE COURT: ...say anymore, we're gonna go up to…
{¶19} "BY MS. McDEW: (Yelling) I am in college! I am in college! I am
supposed to be in school…
{¶20} "BY THE COURT: Okay. That's enough.
{¶21} "(Ms. McDew continues yelling, but it is unintelligible.)
{¶22} "(Unintelligible commands by the jailer)
{¶23} "BY THE COURT: I told you to stop. You are…
{¶24} "BY MS. McDEW: But…
{¶25} "BY THE JAILER: NOW!
{¶26} "BY THE COURT: Madam, you are in contempt of court.
{¶27} "BY MS. McDEW: I am in college.
{¶28} "BY THE JAILER: NOW!
{¶29} "BY THE COURT: You are in contempt of court. Stark County, Case No. 2010CA0270 5
{¶30} "(Ms. McDew continues yelling unintelligibly as jailers are escorting
her from the bullpen)." T. at 2-3.
{¶31} By its very nature, direct contempt of court is a very subjective
determination. The magnitude of any given situation is never adequately portrayed by
the written transcript. Because of its subjective nature and the fact that the actual
dynamics of the situation are best viewed by the trial court, it is difficult to second-guess
the trial court.
{¶32} The courtroom dynamics are judged by the totality of the circumstances.
The ultimate responsibility for control of the courtroom lies with the judge. Here, the
incident occurred in the midst of an arraignment docket where other defendants,
attorneys, and the general public were present. The issues of courtroom control,
demeanor, and orderly proceedings are of upmost importance. There was more
occurring in the courtroom than just appellant's case.
{¶33} Upon review, we find there was sufficient evidence that appellant was
disruptive to the arraignment process and her outburst and failure to cooperate with the
jailer occurred during another's proceedings, thereby obstructing the administration of
justice. The trial court did not abuse its discretion in finding appellant in direct criminal
contempt of court.
{¶34} Assignment of Error I is denied.
{¶35} Appellant claims her thirty day sentence was disproportionate to the
severity of the contempt. We disagree. Stark County, Case No. 2010CA0270 6
{¶36} In State v. Kilbane (1960), 61 Ohio St.2d 201, syllabus, the Supreme
Court of Ohio held the following:
{¶37} "1. Courts, in their sound discretion, have the power to determine the kind
and character of conduct which constitutes direct contempt of court. In imposing
punishment for acts of direct contempt, courts are not limited by legislation but have the
power to impose a penalty reasonably commensurate with the gravity of the offense.
(State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331, paragraph four of the
syllabus, approved and followed.)
{¶38} "2. The primary purpose of a criminal contempt sanction must be to
vindicate the authority of a court and it, therefore, must be determinate. Conditions,
however, may be attached to such a determinate sentence which allow for earlier
termination of the sentence."
{¶39} When a direct contempt is involved, "the limits placed on contempt
sanctions by R.C. Chapter 2705 are inapplicable." Kilbane, at 204. "Although R.C.
2705.05(A) does not apply to limit the punishment a court may impose for
contemptuous conduct, this is not to say that the court has no limits on its authority to
punish contemptuous conduct. The court's inherent power to punish contempt
necessarily implies that it cannot do so arbitrarily or unreasonably, but in proportion to
the contemptuous conduct." State v. King, Cuyahoga App. No. 80958, 2002-Ohio-7228,
¶10.
{¶40} As discussed supra, appellant in this case was disruptive, uncooperative,
and obstructed the administration of justice. The trial court sentenced appellant to thirty Stark County, Case No. 2010CA0270 7
days in jail. The sentence was later reduced from thirty days to sixteen days and good
behavior, and a fine was not imposed.
{¶41} Upon review, we find the sentence imposed by the trial court is well within
its sentencing authority and is not disproportionate to the conduct.
{¶42} Assignment of Error II is denied.
{¶43} The judgment of the Canton Municipal Court of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
_s/ Sheila G. Farmer__________________
_s/ John W. Wise_____________________
s/ Julie A. Edwards___________________
JUDGES
SGF/sg 222 Stark County, Case No. 2010CA0270 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHELLE MCDEW : : Defendant-Appellant : CASE NO. 2010CA0270
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to
appellant.