State v. Ramsey

967 P.2d 525, 156 Or. App. 529, 1998 Ore. App. LEXIS 1710
CourtCourt of Appeals of Oregon
DecidedOctober 21, 1998
Docket96D106989; CA A94848
StatusPublished
Cited by8 cases

This text of 967 P.2d 525 (State v. Ramsey) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ramsey, 967 P.2d 525, 156 Or. App. 529, 1998 Ore. App. LEXIS 1710 (Or. Ct. App. 1998).

Opinion

WARREN, P. J.

Defendant appeals from 18 orders of summary contempt. ORS 33.096.1 The trial court imposed 30 days in jail and a $500 fine for each contempt order with the time to be served consecutively. Defendant argues that the trial court erred by mistakenly treating the first contempt order as a summary contempt; that the trial judge’s refusal to disqualify himself from sentencing defendant violated his right to be sentenced by an impartial judge; that the trial court erred by citing defendant for 17 separate contempt orders during one proceeding instead of one continuing contempt; that the trial court did not have authority, or in the alternative, did not make the required findings, to sentence defendant to consecutive sentences; and, finally, that the trial court erred in imposing a punitive fine of $500 for each contempt order without first making a finding of defendant’s ability to pay pursuant to ORS 161.645. We affirm.

Each of the contempt orders was issued during defendant’s sentencing for his convictions of criminal mischief in the first degree and attempted escape in the second degree. Defendant appeals only from the orders of contempt. Defendant first appeared for sentencing on July 26,1996. At that time, a question arose as to the accuracy and location of a presentence report. During a long, and obviously frustrating, discussion about the sentencing report between defendant’s attorney and the trial judge, defendant inteijected:

“ [DEFENDANT]: Why don’t we just cut all this shit short —
“THE COURT: Cut all this what?
“[DEFENDANT]: —and I’ll just waive my PSI now and you just go ahead and sentence me today.
[532]*532“THE COURT: Take him back, I’ll deal with him later. “[DEFENDANT]: Fuck you.
“THE COURT: He’s held in contempt and I’ll do it Tuesday morning.”

That exchange accounted for contempt order number one.

On August 2, 1996, defendant appeared before the same judge for sentencing on both the original charges and the contempt order. At the beginning of that hearing, defense counsel addressed the court:

“As you well know, last week [defendant] said something in court that was unfortunate and you held him in contempt. And I think that as a result of that I have to ask the court to withdraw itself from sentencing [defendant] in this case. It’s likely the court is prejudice [sic] against him because of the scene.”

The trial court responded:

“No. [Defendant] certainly didn’t do himself any favors by his actions last time * * * [I]f the court were to have to recuse, itself every time someone did something to — that merited a contempt matter, it would certainly be that if a defendant didn’t like a judge, he’d walk in and say something to be held in contempt, and then move to have the judge recuse itself [sic]. I’m going to deny that.”

Defendant’s conduct after that refusal and during the ensuing sentencing accounted for contempt orders two through eighteen. A verbatim account of what transpired is unnecessary and it is sufficient to say that it consisted of ongoing vulgarity similar to that uttered in the first proceeding, insolence toward the trial judge and numerous disruptions of the court.2 The judge repeatedly warned defendant, and each time the warning was ignored. Defendant responded to a number of the trial court’s contempt orders with language resembling the fraternity pledge ritual of “thank you sir may I have another.” Each time the trial court complied.

[533]*533At one point during the sentencing the court informed defendant that each order of contempt carried a penalty of 30 days, to be served consecutively, and a $500 fine. Defense counsel made the following request:

“I don’t mean to be a thorn in the court’s side, but I would ask the court to make some kind of finding as to whether, as to ability to pay since he’s going to be in prison.”

The trial judge responded, “No ability to pay on a fine, sir.”

In defendant’s first assignment of error, he argues that the trial court erred by proceeding under the summary contempt statute, ORS 33.096, when the trial judge cited defendant for contempt on July 26, 1996, but failed to sentence him until August 2, 1996. However, defendant fails to identify, and we cannot find, where that issue is even arguably preserved in the record. We will not consider it. ORAP 5.45(2).

Second, defendant argues that the trial judge committed error when he refused to disqualify himself. ORS 14.260.3 However, even if the trial court did err in denying defendant’s motion for disqualification, that does not eviscerate the trial judge’s authority to maintain order and decorum in the courtroom. See Taylor v. Gladden, 232 Or 599, 602, 377 P2d 14 (1962). The alleged error could not lead to relief from the multiple contempt orders. Defendant does not appeal from the sentencing for the underlying crimes, thus, the issue does not merit discussion.

In defendant’s third assignment of error, he asserts that the trial court erred in issuing seventeen separate counts of contempt for his conduct on August 2.4 He suggests that his conduct amounted to one continuing contempt. Defendant acknowledged, at oral argument, that this issue [534]*534was not preserved but urges this court to treat it as an error apparent on the face of the record. ORAP 5.45(2). An error is apparent on the face of the record only when “the legal point is obvious, not reasonably in dispute.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Applying that standard, the trial court’s multiple orders of contempt are only reversible if it is beyond dispute that they amounted to only a single contempt. We conclude that that standard is not met and deny defendant’s request.

Fourth, defendant argues that the trial court erred in imposing consecutive sentences for contempt orders two through seventeen without making specific findings of fact pursuant to ORS 137.123(5). That issue is not preserved and is not error apparent on the face of the record. See State v. Bucholz, 317 Or 309, 320-21, 855 P2d 1100 (1993) (holding that “ [t] o preserve an error in the face of the possibility that [ORS 137.123] expressly permits consecutive sentencing in the situation at hand, a defendant who objects to lack of express findings to bring the case under [ORS 137.123(5)], must place that objection on the record at the time of sentencing”).

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Cite This Page — Counsel Stack

Bluebook (online)
967 P.2d 525, 156 Or. App. 529, 1998 Ore. App. LEXIS 1710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ramsey-orctapp-1998.