Wine v. State

Decision Date27 May 2020
Docket NumberCourt of Appeals Case No. 19A-PC-2268
Citation147 N.E.3d 409
Parties Bobby D. WINE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court

147 N.E.3d 409

Bobby D. WINE, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 19A-PC-2268

Court of Appeals of Indiana.

FILED May 27, 2020


Facts and Procedural History

1] 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 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.

[2] We affirm.

Facts and Procedural History

[3] 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

[147 N.E.3d 413

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.

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 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.

[5] 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 , 2014 WL 684151 (Ind. Ct. App. Feb. 20, 2014). We affirmed in part and reversed in part, concluding that the record supported 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.

[6] 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

[147 N.E.3d 414

Wine v. State, No. 85A05-1307-CR-382, 2014 WL 1266285 (Ind. Ct. App. March 27, 2014).

7] 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.

[8] 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

[9] 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 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

[10] 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

[147 N.E.3d 415

not seek a remedy by way of post-conviction relief.

[11] 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 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.

12] 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. , 221 Ind. 688, 51 N.E.2d 365, 367 (1943) ). In light of this pronouncement, the State posits 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...

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  • Grogg v. State
    • United States
    • Indiana Appellate Court
    • October 21, 2020
    ...after the conclusion of the trial to consider whether the defendant acted in contempt of court. See generally Wine v. State , 147 N.E.3d 409, 418–19 (Ind. Ct. App. 2020) (citing Codispoti v. Pa. , 418 U.S. 506, 515, 94 S.Ct. 2687, 41 L.Ed.2d 912 ) (providing that when a trial judge waits un......

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