State ex rel. Goldsmith v. Marion County Superior Court, Criminal Division No. 1

Citation419 N.E.2d 109,275 Ind. 545
Decision Date31 March 1981
Docket NumberNo. 1179S316,1179S316
PartiesSTATE ex rel. Stephen GOLDSMITH, Prosecutor of Marion County, Nineteenth Judicial Circuit, Relator, v. The MARION COUNTY SUPERIOR COURT, CRIMINAL DIVISION NO. 1, the Honorable Jay B. Haggerty, Special Judge, Respondent.
CourtSupreme Court of Indiana

Stephen Goldsmith, Pros. Atty., Bobby Jay Small, Deputy Pros. Atty., Linley E. Pearson, Theodore L. Sendak, Attys. Gen., Michael G. Worden, Deputy Atty. Gen., Indianapolis, for relator.

David F. McNamar and Michael R. Franceschini, Steers, Sullivan, McNamar & Rogers, Indianapolis, for respondent.

GIVAN, Chief Justice.

This contempt action arose from a writ of mandamus issued to the respondent judge on November 15, 1979. Respondent was appointed special judge in two criminal cases, State of Indiana v. William J. Daugherty, Cause No. CR 70 116A and State of Indiana v. Ricky Lee Harris, Cause No. CR 79 93A. Both defendants entered guilty pleas pursuant to plea bargain recommendations specifying executed sentences. Respondent accepted the plea bargain recommendations. However, he reduced each defendant's sentence. The writ of mandamus of November 15, 1979, ordered respondent to resentence the defendants according to the agreement or alternatively vacate the sentences and probations and set the causes for trial. Respondent followed the former course.

On December 6, 1979, and December 7, 1979, the defendants filed their respective petitions for consideration for shock probation. Respondent granted both defendants Harris and Daugherty's petitions on March 4, 1980. Thereafter, the relator filed an information and amended information in this Court alleging a violation of this Court's mandate of November 15, 1979.

On May 14, 1980, this Court held an evidentiary hearing for indirect criminal contempt. On May 22, 1980, this Court found respondent guilty of contempt for failing to carry out the mandate of November 15, 1979. Respondent was sentenced to thirty days imprisonment at the Indiana State Farm and fined $250. The Court further ordered that the sentence and fine be suspended if, before noon the following day, the respondent complied with the mandate. Respondent recalled both defendants, vacated their existing sentences and probations, set aside the judgments of conviction, rejected the plea bargain agreements, and set each cause for trial. Thereafter, respondent notified the Supreme Court of his actions.

This opinion is written in order that the Bench and Bar may be fully apprised of the circumstances surrounding this case.

Respondent first raises the question as to whether an appeal rather than an original action is the proper procedure to limit a judge to statutory sentencing provisions. He argues that once he complied with the writ of mandamus issued by this Court on November 15, 1979, by sentencing the defendants to executed terms, the case ended, and that the subsequent use of shock probation did not constitute a violation of the mandate. Respondents in In re Lemond, (1980) Ind., 413 N.E.2d 228, raised the same issue. In that case, we stated at p. 243 "Respondents argue that, when Judge Richardson granted the writ of habeas corpus, these Court's orders were thereby fully complied with. A similar position was advanced in State ex rel. Purcell v. Sullivan Circuit Court, (1950) 228 Ind. 410, 92 N.E.2d 843. In that case, a circuit court judge entered an order which seemingly complied with a writ of prohibition issued by the Supreme Court. The facts behind the trial court's order, however, demonstrated that the order was merely a sham, designed to avoid the force and effect of the writ. In finding the circuit court judge in contempt the Supreme Court cautioned that '(t)his Court ... is not blind,' and proceeded to look past the trial court's order to his actual behavior. Id. at 425, 92 N.E.2d at 849."

Respondent next claims it was improper for the Marion County Prosecutor to raise this question in the Supreme Court by information, since the rules concerning original actions contain no such provision. Notwithstanding the lack of procedural outline in the Rules of Procedure for Original Actions specifying the propriety of an information, this form has been utilized as a means of calling attention to the failure to comply with the orders of this Court. In Re Lemond, supra; In Re Perrello, (1973) 260 Ind. 26, 291 N.E.2d 698.

Respondent next asserts impropriety because the contempt citation arose from utilization of I.C. 35-4.1-4-18, the Shock Probation Act, while the basis for the writ of mandamus was I.C. 35-5-6-1, et seq., the Plea Bargain Act. In In Re Lemond, an appeal was taken from a trial decision regarding interstate child custody. The Court of Appeals, interpreting the Uniform Child Custody Jurisdiction Act, reversed the trial court. We denied respondent Lemond's petition to transfer the cause to this Court. The contempt citation was founded on respondent's attempted circumvention of the Court of Appeals' and the Supreme Court's orders by the filing and granting of CHINS (Children in Need of Service) petition pursuant to I.C. 31-6-4-3, et seq., (Burns Supp. 1979) after having seemingly complied with the directives of this Court. Thus, notwithstanding the application of a different statute, a citation for contempt will issue when this Court's order is violated.

Respondent argues procedural flaws mistakenly relying on I.C. 34-4-7-1, et seq. However, I.C. 34-4-7-10 reads in relevant part:

"Section 10. The provisions of this act shall apply to all proceedings for contempt in all courts of record in this state except the Supreme Court thereof ..." (emphasis added.)

Thus, by terms, the above act delineating procedure is inapplicable to the case at bar.

Respondent next claims that the Supreme Court erred in failing to appoint a Commissioner to hear the cause in accordance with I.C. 34-4-8-2, which reads as follows:

"34-4-8-2 (3-912). Indirect Supreme and Appellate Courts Special commissioners Procedure. In all cases of indirect contempt of the Supreme or Appellate Courts of this state, except those growing out of wilfully resisting, hindering, delaying or disobeying any lawful process or order of court, the court against which the alleged contempt has been committed shall ... nominate three (3) competent and disinterested persons ... to be submitted to the parties in the action .... The court shall thereupon appoint such person who shall remain unchallenged a special commissioner of such court ...."

We hold that the respondent's noncompliance with the mandate of November 15, 1979, falls within the exception of "growing out of wilfully resisting, hindering, delaying or disobeying any lawful process or order of court." Thus, there was no error in declining to appoint a Commissioner.

The applicable statute in this case is I.C. 33-2-1-4 which reads:

"33-2-1-4 (4-110). Oaths Fines for contempt. Such court shall have full power to impose and administer all necessary oaths; to punish by fine and imprisonment for contempt of its authority and process; and to compel the attendance of witnesses by attachment and fine."

We further point out that courts of superior jurisdiction have inherent ability to punish contemptuous acts independent of statutory provisions. Worthington v. State, (1979) Ind.App., 391 N.E.2d 1164. The proceedings against respondent Haggerty flow from these powers.

Respondent claims that his intent to violate the Supreme Court mandate was not established. Intent and good faith are questions of fact to be decided by this Court after considering the evidence. In re Lemond, supra; In re Perrello, supra. Where a violation of a court order is clear on the record, "it is not sufficient to merely deny any intention to defy the order." In re Perrello, supra, 260 Ind. at p. 30, 291 N.E.2d at pp. 700-701. This Court issued a writ of mandamus ordering respondent to sentence the defendants to executed terms of imprisonment or set the causes for trial. Subsequently, when the trial court granted shock probation, the order of this Court was thereby violated.

Respondent challenges the nonunanimous finding of contempt by drawing an analogy with the unanimity requirement in criminal jury verdicts. With three justices sitting in this contempt hearing, two found respondent guilty of contempt and one did not. I.C. 33-2.1-2-1 provides that three justices shall constitute a quorum to conduct the business of this Court. In State ex rel. Sedam v. Ripley Circuit Court, (1973) 262 Ind. 25, 302 N.E.2d 761, this Court in a nonunanimous opinion held a respondent trial judge in contempt.

Respondent also complains of Justice Prentice's participation in the voting in this action. Justice Prentice did not attend the hearing, but cast a fourth vote based on the briefs filed. Respondent has failed to establish any prejudice caused by Justice Prentice's participation. When votes on this Court are evenly split, the Court declines to take any affirmative action. (See Rule of Appellate Procedure 15(F)). Thus, the participation of Justice Prentice as a fourth judge could only aid the respondent. The vote of the majority was not needed for affirmative action, where, on the other hand, had he cast a negative vote, the Court would have been split on a two-two vote which would have resulted in no action being taken. Thus, respondent could have only been aided, not harmed, by the participation of Justice Prentice.

Because the relator did not verify the information, respondent claims he was not given sufficient notice by the order to appear and show cause of May 14, 1980, to adequately warn him that he was being cited for contempt. Although the information is not verified by the relator, the information was attached to copies of all pleadings and trial court entries certified by the clerk of the respondent court. In In Re Perrello, supra, 260 Ind. at 31, 291 N.E.2d at 701, we stated:

"Respondent also contends the...

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