Mockbee v. State

• Decision Date: 19 July 2017
• Docket Number: Court of Appeals Case No. 15A01-1701-CR-22
• Citation: 80 N.E.3d 917
• Parties: Brandon MOCKBEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

80 N.E.3d 917

Brandon MOCKBEE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 15A01-1701-CR-22

Court of Appeals of Indiana.

July 19, 2017

Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana.

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General.

Statement of the Case

Pyle, Judge.

1] Brandon Mockbee ("Mockbee") appeals the trial court's finding that he was twice in direct criminal contempt of the court and the trial court's sentence that Mockbee serve one year in jail. Mockbee argues that his behavior did not rise to the level of a contemptuous act required for two findings of direct contempt and that the trial court was not authorized to sentence him to more than six months in jail for direct contempt without a jury trial. We conclude that the trial court did not err in finding Mockbee in direct contempt. However, because we conclude that there was only one continuous act of contempt, we reverse the trial court's finding of two

[80 N.E.3d 919

acts of contempt and remand to the trial court to enter a sentence of six months.

2] We affirm in part, reverse in part, and remand with instructions.

Issue

Mockbee raises three issues, which we consolidate and restate as whether his behavior constituted a single episode of contempt.

Facts

[3] In July 2016, the State charged Mockbee with two counts of Level 5 felony burglary and one count of Level 5 felony conspiracy to commit burglary, and it alleged that he was an habitual offender. Mockbee was initially represented by counsel, but he then chose to represent himself and had two attorneys acting as standby counsel. Mockbee filed numerous motions, most of which the trial court described as "frivolous and repetitive." ( Tr. 40 ). As a result, the trial court held "almost 40 hours" of hearings on his motions. ( Tr. 40 ). Mockbee was removed from the courtroom during those hearings "for disruptive and threatening behavior" and was warned about his constant unruly actions. ( Tr. 39 ).

[4] On November 29, 2016, the trial court held a final hearing on Mockbee's pending motions, which included a motion to suppress and a motion to sever. Mockbee represented himself, and, during the hearing, he interrupted the judge, confused the witnesses, and asked questions that had previously been answered. During an attempt to play a video, Mockbee taunted opposing counsel by stating, "Get the Discovery, quit hiding it, we're going to trial on the 5^th, are you scared? I'm not." ( Tr. 39 ). The court interjected that it had "had enough" of Mockbee's behavior and noted for the record that Mockbee was "constantly interrupting the Court on a continuing basis" and "ha[d] been warned by the Court countless times for his disruptive behavior." ( Tr. 39 ). The trial court noted that Mockbee's behavior was "a deliberate attempt to make a circus of our legal system" and found that Mockbee had forfeited his right to self-representation. ( Tr. 41 ).

[5] The hearing then continued with Mockbee's standby counsel representing him. While Mockbee's counsel was speaking, Mockbee "ma[de] some kind of gesture with his hand or finger" to the trial court, and made "glaring, smirking remarks" and "face gestures at the Court." ( Tr. 50 ). Mockbee again interrupted the trial court and counsel during the proceeding and had to be reminded that his counsel was now representing him. The trial court warned Mockbee that he would be removed from the courtroom if he continued his disruptive behavior. Mockbee again interjected when the trial judge was speaking and was ordered to leave the courtroom. Mockbee then said, "[f]uck you," as the officers removed him. ( Tr. 51 ). The trial judge had the officers bring Mockbee to the bench where the following exchange occurred:

MR. MOCKBEE: Go ahead; say what you got to say.

THE COURT: The Court is going to say—

MR. MOCKBEE: Say it please; that you're bias[ed], you['re] unprejudicial [sic], you're scared to give somebody a fair trial in this Courtroom! I filed a police report against you and [defense counsel]. Please say it, because all the remarks—

THE COURT: Mr. Mockbee—

MR. MOCKBEE: —you make as a Judge when you're not in control and you're not in the situation—God have mercy on your soul, sir!

[80 N.E.3d 920

THE COURT: Okay, take him out of here.

MR. MOCKBEE: Now contempt that, please!

THE COURT: Okay, you are found in direct contempt of this Court.

MR. MOCKBEE: Thank you.

THE COURT: I am going to order, based upon your continued misbehavior in this Courtroom—

MR. MOCKBEE: Please do so—

THE COURT: Six months; six months—

MR. MOCKBEE: —because your behavior is what's been distinguished here, sir.

THE COURT: —make it nine months.

MR. MOCKBEE: Your very distinguished behavior has been an absolute disgrace—

THE COURT: Get him out of here.

MR. MOCKBEE: —in this Courtroom!

THE COURT: Okay, Mr. Mockbee...

MR. MOCKBEE: And I don't back down on you for fear of you, sir!

THE COURT: Okay, Mr. Mockbee has just got himself another six months—

MR. MOCKBEE: Please man.

THE COURT: —so he's looking at, I'm going to make it one year additional.

( Tr. 51 - 53 ). After Mockbee left the courtroom, the trial court noted that his "behavior at this time ha[d] continued" and that the trial court was "not going to subject the parties or a jury to this kind of behavior...." ( Tr. 53 ). The trial court found that Mockbee was in "direct contempt" and that "he w[ould] be sentenced accordingly[.]" ( Tr. 53 ). The hearing then continued without Mockbee present.

6] On December 5, 2016, the trial court entered its order of direct contempt. The trial court "found [Mockbee] in contempt and ordered a sentence of one hundred and eighty (180) days and ordered an additional one hundred and eighty (180) days for continued actions, words, and disruptive behavior." (App. Vol. 2 at 47). The trial court ordered "two separate sentences" of six months "based upon defendant's failure to cease his disruptive behavior after the imposition of the first contempt sentence." (App. Vol. 2 at 49). Mockbee now appeals.¹

Decision

[7] Direct criminal contempt citations are available where "the court has firsthand and immediate...