In re Lodico, 2005 Ohio 172 (OH 1/18/2005)
| Decision Date | 18 January 2005 |
| Docket Number | Case No. 2003-CA-00446. |
| Citation | 2005 Ohio 172 |
| Parties | In re: Steven L. Lodico. |
| Court | Ohio Supreme Court |
Sharon D. Miller, Asst. Stark County Prosecutor, 110 Central Plaza S., Ste 510, Canton, OH 44701, for Plaintiff-Appellant.
Richard S. Koblentz, Craig J. Morice, 55 Public Square, Ste 1170 Cleveland, OH 44113, for Defendant-Appellee.
Hon: W. Scott Gwin, P.J., Hon: John W. Wise, J., Hon: John F. Boggins, J.
{¶1} Attorney Steven L. LoDico appeals from the trial court's order finding him in contempt of court and from the sixty day jail sentence imposed upon him by the court. The appellee is the State of Ohio.
{¶2} The contempt finding occurred during a pre-trial hearing wherein Appellant was ostensibly representing two different criminal defendants, to wit State v. John Cameron, Stark County Court of Common Pleas, Case No. 2003CR1507 and State v. Rhydean Zachary, Stark County Court of Common Pleas, Case No. 2003CR1237. A question arose as to whether appellant was in fact representing Mr. Cameron. Near the conclusion of the pre-trial hearing, the following exchange occurred between the trial judge, Mr. Cameron, and the appellant:
{¶6} So my first question to you is are you still being represented by Mr. LoDico? Because you can't be talking with your lawyer standing here.
{¶27} I find you in contempt; 60 days in the Stark County Jail.
{¶28} Take him out of my courtroom.
{¶31} (End of hearing).
{¶32} The following day, December 30, 2003, the trial court filed a Journal Entry expanding on its reasons for finding appellant in contempt of court in In re LoDico, Stark County Court of Common Pleas, Misc. Case No. 2003MI00316. Additionally, on December 30, 2003, the trial court conducted a bond hearing upon appellant's motion to set bond pending appeal. On December 31, 2003, the trial court filed a Journal Entry overruling appellant's motion for bond pending appeal, and again expanded upon its reasons for finding appellant in contempt of court on December 29, 2003.
{¶33} In a single assignment of error, appellant contends the trial court abused his discretion in finding him guilty of criminal contempt since such finding was unreasonable and unsupported by the evidence:
{¶34}
I.
{¶35} In the state of Ohio, criminal contempt, the purpose of which is to punish, may be termed indirect or direct. See In the Matter of Lands (1946), 146 Ohio St. 589, 595; In re McGinty (1986), 30 Ohio App.3d 219, 507 N.E.2d 441, 445 ; In re Carroll (1985), 28 Ohio App.3d 6, 501 N.E.2d 1204, 1208. Indirect contempt occurs when the contemnor's actions occur outside the presence of the court. See City of Cincinnati v. Dist. Council 51 (1973),35 Ohio St.2d 197, 202, 299 N.E.2d 686, 691; In re McGinty, supra, 28 Ohio App.3d at 223, 507 N.E.2d at 445; see also In re Gonzalez(1990), 70 Ohio App.3d 752, 755, 591 N.E.2d 1371, 1373 . Whereas, direct contempt "is an act `of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice."' In re McGinty, 507 N.E.2d at 445 (citing Ohio Rev.Code § 2705.01); City of Cincinnati v. Dist. Council 51, supra, 35 Ohio St.2d 201-202, 299 N.E.2d at 691-692. In the case at bar, because appellant's actions which resulted in the finding of criminal contempt occurred in the presence of the judge, his conduct, if contemptuous, would be considered direct contempt. Pursuant to Section 2705.01 of the Ohio Revised Code, direct contempt may be summarily punished:
{¶36} "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."
{¶37} The Supreme Court has defined summary contempt as:
{¶38} "a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial." Sacher v. United States, (1952) 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L. Ed. 717, 724.
{¶39} While a finding of contempt is within the discretion of the court, to sustain a conviction of criminal contempt the elements of the offense must be proven beyond a reasonable doubt. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416 N.E.2d 610. The elements include an intent to defy the court and conduct which "poses an imminent threat to the administration of justice." Catholic Social Servs. v. Howard(1995), 106 Ohio App.3d 615, 666 N.E.2d 658, 661 ; see also In re Carroll(1985), 28 Ohio App.3d 6, 501 N.E.2d 1204, 1208-09.
{¶40} The standard for reversal of a contempt finding is "abuse of discretion." As set forth by the Ohio Supreme Court in State v. Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249: "This court will not reverse the decision of the court below in a contempt proceeding in the absence of a showing of an abuse of discretion." In State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144, the Ohio Supreme Court composed the following definition: "The term `abuse of discretion' connotes more than error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Id. at 157-58, 404 N.E.2d at 149. The definition of "abuse of discretion" is in the disjunctive. Most findings of abuse of discretion are based upon unreasonableness, rather than a finding of arbitrary or unconscionable. Moreover, a decision is "unreasonable" where there is "no sound reasoning process" supporting it. AAAA Enter. Inc. v. River Place Cmty. Urban Redevelopment Corp., (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601.
{¶41} It should be noted that in regard to the discretion of the trial court, "[t]he general rule in cases of direct contempt is that the trial court's judgment or order of direct contempt must itself contain a complete and clear statement of the facts upon which the conviction is based." State v. Schiewe (1996), 110 Ohio App.3d 170, 173, 673 N.E.2d 941, 943; State v. Moll (Jan. 10, 1992), 6th Dist. No. 91WD010; State v. Treon (1963), 91 Ohio Law Abs. 229, 188 N.E.2d 308, 316. This is inapposite to the usual rule. Numerous summary contempt cases, primarily involving legal counsel, have been reversed, for failure of the trial court to set forth the facts that constitute contempt "fully, clearly, and specifically" in its judgment or order. The guilt of a person accused of contempt must be shown affirmatively in the record. Id.
{¶42} ...
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