Palmer v. State, 880S353

• Decision Date: 31 March 1981
• Docket Number: No. 880S353,880S353
• Citation: 275 Ind. 128,418 N.E.2d 530
• Parties: Harry Fred PALMER, III, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 530

418 N.E.2d 530

275 Ind. 128

Harry Fred PALMER, III, Appellant, v. STATE of Indiana, Appellee.

No. 880S353.

Supreme Court of Indiana.

March 31, 1981.

Richard E. Steinbronn, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for William J. Nye, Myers & Nye, Elkhart, for respondents.

PIVARNIK, Justice.

This proceeding arises out of an order issued by this Court on January 30, 1981, to the Honorable William D. Bontrager, Judge of the Elkhart Superior Court Number Two, and the Honorable Richard H. Sproull, Special Judge of that court, directing them to appear before this Court and show cause why they should not be held in indirect criminal contempt for failure to carry out an order of this Court. The order in question directed the trial court to sentence Harry Fred Palmer III as required by statute. We issued the show cause order concurrent with findings which were published in an opinion handed down January 30, 1981. Palmer v. State, (1981) Ind., 415 N.E.2d 707. This opinion is issued pursuant to our written order of March 6, 1981, finding Judge Bontrager guilty and Special Judge Sproull not guilty of indirect criminal contempt.

All of the facts on which we based our appraisal of apparent contempt were contained within the records filed with this Court. Defendant Palmer entered a plea of guilty to a charge of first degree burglary, under Ind.Code § 35-13-4-4 (Burns 1975), in Judge Bontrager's court. Under Ind.Code § 35-7-1-1 (Burns 1975), first degree burglary was one of several enumerated crimes for which the sentencing court was prohibited from suspending the sentence and placing the defendant on probation. On February 13, 1978, Judge Bontrager sentenced Palmer to not less than ten nor more than twenty years on his plea of guilty, as the burglary statute provided. Judge Bontrager then found § 35-7-1-1 to be unconstitutional, and thereafter ordered Palmer to serve a sentence of one year, the balance of the sentence to be suspended and Palmer to be placed on probation for a period of five years. The State then prosecuted an appeal.

We decided the original appeal in this case on March 22, 1979. State v. Palmer, (1979) Ind., 386 N.E.2d 946. We held that the applicable statutes were constitutional, and that the trial court was therefore limited to sentencing Palmer by virtue of his guilty plea to not less than ten nor more than twenty years; we further held that Judge Bontrager had no authority to suspend Palmer's sentence in any fashion. We then remanded the cause to the trial court with directions to modify its judgment accordingly.

This case then came back to us a second time, on Palmer's attempt to present alleged additional issues. We disposed of that appeal by dismissal in our January 30, 1981, opinion. The record showed that, after Palmer's petition for rehearing was denied by this Court following our first opinion, a copy of that opinion was certified to Judge Bontrager's court on June 8, 1979. At this point, Judge Bontrager set the matter for "further proceedings." On June 18, 1979, over the State's objection, Judge Bontrager continued sentencing to August 20, and further directed the parties to make omnibus-type disclosure by August 6 of all witnesses and evidence to be introduced at the "further proceedings." Several motions were filed, relating to the scope of discovery, a change in defendant's counsel, and a request for a delay in sentencing pending an appeal to the United States Supreme Court. Palmer also requested a delay in sentencing pending resolution of a case then under consideration by the Supreme Court. Judge Bontrager deferred all rulings. Finally, on August 6, 1979, Judge Bontrager recused himself from the cause without ever having sentenced Palmer pursuant to the statutes and the order of this Court.

On August 8, 1979, Richard H. Sproull appeared and qualified as Special Judge. He conducted a hearing on August 24, 1979, concerning all pending matters. Special Judge Sproull granted the State's motion for a protective order, denied Palmer's motion to delay sentencing, and set the matter for sentencing on September 5, 1979. On September 7, Special Judge Sproull entered written findings. He found the defendant to be rehabilitated and suggested that it would be cruel to return him to prison at that time. In spite of these findings, he acknowledged this Court's order and sentenced Palmer to the Department of Corrections for a term of ten to twenty years, with credit for time already served. Palmer was ordered to report to the diagnostic center on October 1, 1979. Special Judge Sproull then fixed an appeal bond in the amount of five thousand dollars ($5,000.00). Palmer filed a five hundred dollar ($500.00) cash bond, and was released on September 11, 1979.

We held in our second opinion that all issues in the cause had already been decided in our original opinion and, therefore, that no appealable issues remained for our consideration. We noted that, after the March 22, 1979 opinion was certified to the trial court, the only thing left for the trial court to do was to follow the directives in that opinion by striking its order suspending Palmer's sentence and placing him on probation, and thereafter order him committed as the statutes provided. The trial judge had no discretion to act in any other way. There was, therefore, no appeal available to Palmer, and no reason for him to be released on an appeal bond. If the defendant felt at that time that he had remedies to pursue relative to the situation in which he then found himself, he could have raised and still could raise those issues in any subsequent actions he thought appropriate. However, there was nothing further to be raised or decided on that attempted second direct appeal. Palmer v. State, (1981) Ind., 415 N.E.2d 707, 708-09.

Pursuant to our show cause order, Judges Bontrager and Sproull appeared with counsel before us on February 25, 1981. The evidence adduced at that hearing showed that the facts already in the record were accurately presented in the two appeals we have considered involving this defendant. The facts further showed that both judges understood the orders of this Court and knew that, under those orders, it was mandatory that Palmer be sentenced to a ten-to-twenty-year term and committed to the Department of Corrections.

Judge Bontrager did not deny any of the facts disclosed in the record, but spoke only in mitigation, concerning his claimed lack of intent to be contemptuous of this Court. He testified of his concern for Palmer's position of being sentenced to a full term after having complied, to that point,...