State v. Deleon

Decision Date10 October 2012
Docket NumberNo. 2012AP278.,2012AP278.
Citation345 Wis.2d 62,2012 WI App 132,823 N.W.2d 840
PartiesIn re the finding of contempt in STATE of Wisconsin v. Cesar DELEON. Cesar Deleon, Appellant, v. Circuit Court for Brown County, the Honorable Sue E. Bischel, presiding, Respondent.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HEREAppeal from an order of the circuit court for Brown County: Sue E. Bischel, Judge. Modified and, as modified, affirmed.


Cesar Deleon appeals an order finding him in contempt of court fourteen times and imposing a sanction of thirty days' jail for each contemptuous act to be served consecutively to his prison sentence. Deleon argues the circuit court erred by finding him in contempt multiple times and by ordering his sanction be served consecutively to his prison term.

¶ 2 We conclude the court did not err by holding Deleon in contempt for multiple acts or by ordering his sanction be served consecutively to his prison sentence. However, because the Brown County Circuit Court concedes Deleon committed only twelve contemptuous acts, we modify the court's order from fourteen acts to twelve and reduce Deleon's sanction from 420 days to 360 days. We affirm the order as modified.


¶ 3 The State charged Deleon, who at the time was a prisoner in the segregation unit at the Green Bay Correctional Institution, with assaulting a prison guard by throwing urine on him. Deleon contested the allegation and requested that six prison inmates be transported to trial as defense witnesses.

¶ 4 At a pretrial hearing, the court determined it would sign a transport order for two inmate witnesses. Deleon's trial counsel subsequently wrote to the court, providing it with transport orders for all six witnesses. In response, the court wrote to the parties, stating it did not intend to sign any orders to produce the inmate witnesses.

¶ 5 At the next hearing, Deleon's counsel advised the court that he explained to Deleon that the court determined the witnesses would not be produced for trial. Deleon then expressed concern about the witnesses and the following exchange occurred between the court and Deleon:

[The Court]: Mr. Deleon, we have rehashed that issue about the witnesses all the time and I'm not changing my mind.

[Deleon]: Last time you say they would, and now I thought it was—at the last moment you was talking about no?

[The Court]: No.

[Deleon]: No, no, no. You need to explain this to me. I not getting it. I not understanding.

[The Court]: Then you're not hearing me.

[Deleon]: You're not giving me a fair process.

[The Court]: Mr. Deleon, you can tell the appellate judges in Wausau that.

[Deleon]: You pissing me off.

[The Court]: What did you just say?

[Deleon]: I said you pissing me off.

[The Court]: You are in contempt.

[Deleon]: I don't give a fuck.

[The Court]: Well, good, because then you're in contempt again.

[Deleon:] I don't give a fuck.

[The Court]: Keep it up. Three.

(Defendant spits towards the bench. Defendant restrained by court security.)

[The Court]: Thank you. Make it four.

[Deleon]: I'm relaxed. Get your hands off me.

(Discussion between court security and the defendant off the record.)

[Deleon]: That fucking old lady piss me the fuck off.

[The Court]: That's five. Six.

[Deleon]: Ever since I been having showing you respect, and every time I come, you always yelling at me or you always yelling at my attorney or the district attorney. You always got a fucking attitude.

[The Court]: That's seven. You want to keep it up or not? All right. We're having a trial on Tuesday, I guess. I don't know what else to do. I would like to know for sure if we're having a trial, but he's not in much of a mood to be rational right now. That's the problem.

[Deleon's trial counsel]: At this point, my presumption is we are. For my part.

[The Court]: Mr. Deleon, I can't have them remove you yet because I am required to do something about your seven contemptuous things. The record will reflect what you said. It won't reflect that you spit at me. You tried to hurl spit across the room at me. That's the reality of it. That was probably on contempt four or five. I am required—

[Deleon]: It's what you get when you disrespect people. You think just ‘cause you sitting up there in that chair, you got that robe, you can just—

[The Court]: Mr. Deleon, I have to finish saying something.

[Deleon]: I don't give a shit. You do what you gonna do.

[The Court]: We're up to eight. I have to give you a chance to say something before I decide what your sanction should be for your contempt. You have a right to make the statement. Is there anything you'd like to say before—

[Deleon]: Shit to say.

[The Court]: That's up to nine, I think. Whatever the maximum—

[Deleon]: Make it 12. I don't give a fuck.

[The Court]: That's good. You're up to ten.

¶ 6 Deleon's defense counsel interjected, asking the court to take into consideration the prison environment Deleon lived in, the language used there, and the level of frustration Deleon felt.

[The Court]: I will certainly do that. I can only say this. In 19 years, that's the most outrageous language that I've heard. Spitting, it's unbelievable. And I know Mr. Deleon doesn't think he's been treated fairly. I would bet anyone else—

[Deleon]: I'm asking for a fair trial. Ever since I been here, you doing the same shit over and over.

[The Court]: We're up to 11 or whatever it is. I'll count them later when I read the transcript. I'm going to impose the maximum sentence on each one of those contempts—I think it's 30 days, but I'm not sure—to be served consecutively to each other. And I'll assume we'll be having the trial on Tuesday. Mr. Deleon, if this is what's going to happen on Tuesday, you're not going to last long. You know that and I know that. You're going to end up being removed and you're going to have a trial with just your lawyer sitting here and you're not here. I hope that doesn't happen. So I hope things are different on Tuesday. Do you want to consider taking the district attorney's offer to plead to a disorderly conduct?

[Deleon]: Shit.

[Deleon's defense counsel]: I believe he responds in the negative, ma‘am.

[The Court]: All right. Thank you. Then we'll see you Tuesday morning at 8:30.

¶ 7 The court issued a written decision and order, concluding [e]ach use of profanity, and spitting, constitutes an act of separate contempt.” The court outlined each act and found Deleon made eleven profane statements and committed one act of spitting. It imposed a thirty-day sanction for each act, “to be served consecutively to each other and all other sentences the defendant is currently serving....” After the court issued its order, the State moved to dismiss the assault by a prisoner charge, and the court granted the motion.


¶ 8 On appeal, Deleon argues the court should have found he committed only one act of contempt, not multiple acts.2 He also asserts the court lacked authority to impose the punitive contempt sanction consecutively to his prison sentence.

¶ 9 A circuit court's determination that an individual “has committed a contempt of court will not be reversed by a reviewing court unless contrary to the great weight and clear preponderance of the evidence.” Currie v. Schwalbach, 139 Wis.2d 544, 551–52, 407 N.W.2d 862 (1987). However, whether the court properly applied the law to the facts is a question of law we review independently. Id.

I. Number of contemptuous acts

¶ 10 Deleon offers two arguments in support of his assertion that the court erred by citing him for multiple acts of contempt. First, he argues his spitting and repeated profanities amounted only to a single act of contempt because they took place during a short period of time. Second, he asserts he cannot be held in contempt multiple times for conduct that was seemingly encouraged by the court.

Multiple contemptuous acts

¶ 11 Wisconsin Stat. § 785.01(1)(a) defines “contempt of court as intentional [m]isconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court.” 3 (Emphasis added.) Deleon argues misconduct, as used in Wis. Stat. § 785.01(1)(a), “connotes behavior rather than a single word or act.” He asserts that, because his spitting and profanities “took place in a short period of time during a single court proceeding,” his actions amounted only to a single act of misconduct and, therefore, only a single contemptuous act. (Capitalization omitted.) In support, Deleon cites cases from other jurisdictions that have determined repeated disrespectful conduct constitutes one contemptuous act. See United States v. Murphy, 326 F.3d 501, 504 (4th Cir.2003) (vacating two of three contempt sanctions based on rule of lenity); Williams v. State, 599 So.2d 255, 256 (Fla.Dist.Ct.App.1992) (defendant's two profane statements, separated in time only long enough for trial court to find defendant in contempt, are properly viewed as single instance of contempt).

¶ 12 We conclude the circuit court properly determined Deleon's spitting and repeated profanities amounted to multiple contemptuous acts. First, to the extent Deleon suggests Wis. Stat. § 785.01(1)(a)'s use of the word “misconduct” is ambiguous and we should apply the rule of lenity to conclude he may only be sanctioned for a single contemptuous act, we observe the rule of lenity applies only to criminal statutes and the contempt statutes are civil in nature. See State v. Cole, 2003 WI 59, ¶ 13, 262 Wis.2d 167, 663 N.W.2d 700 (rule of lenity applies to criminal statutes); see also State v. Carpenter, 179 Wis.2d 838, 840, 508 N.W.2d 69 (Ct.App.1993) (“contempt of court is not a crime”).

¶ 13 Moreover, any perceived ambiguity in Wis. Stat. § 785.01(1)(a) is resolved by Wis. Stat. § 785.04(2)(b)'s provision that a circuit court may impose punitive sanctions for “each separate contempt of court.” 4Section 785.04(2)(b) applies only when a court, as the court did here, uses...

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