State v. Wisener
| Docket Number | 22 MA 0025 |
| Decision Date | 15 December 2022 |
| Citation | 204 N.E.3d 124 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Thomas WISENER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty. John B. Juhasz, 7081 West Boulevard, Suite No 4, Youngstown, Ohio 44512, for Plaintiff-Appellee.
Atty. Daniel J. Leffler, Ohio Patrolmen's Benevolent Assoc., 10147 Royalton Road, Suite J, North Royalton, Ohio 44133, for Defendant-Appellant.
BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Appellant Thomas Wisener appeals the decision of the Youngstown Municipal Court finding him guilty of contempt for refusing to wear a mask in the courthouse in violation of a court order. In the first assignment of error, Appellant contends his contempt should have been treated as civil contempt with an opportunity to purge rather than criminal contempt with a definite jail term. In the second assignment of error, he alleges the courthouse mask order unconstitutionally interfered with his religious beliefs because it was not the least restrictive means of furthering the admittedly compelling state interest of protecting against Covid-19 transmission during a pandemic and allowing the court to remain operational. For the following reasons, the trial court's judgment is affirmed.
{¶2} On February 23, 2022, a visiting municipal court judge signed a judgment entitled, "In re Contempt of Court Order of 8/23/21 (Covid-19) Thomas Wisener (YPD Officer)." Citing the court's Covid-19 Operations Order, the judgment memorialized that the court advised Appellant he was in violation of the mask order and informed him of the potential penalties for first time contempt. The entry, filed on February 28, 2022, set a hearing date of March 18, 2022.
{¶3} A second entry was filed the same day, wherein Youngstown Municipal Court Judge Carla Baldwin instructed the clerk to create a case number for Appellant's contempt case, which was set for hearing on March 18. This entry noted the charge was "Contempt of Court 2705.02," and a summons was issued to Appellant for the contempt hearing.
{¶4} At the hearing before Judge Baldwin, defense counsel acknowledged Appellant's violation of the court's mask order and said Appellant understood his obligation to comply with court orders, including as an officer of the court. (Tr. 2). Counsel argued Appellant violated the order because he believed it offended his religious beliefs. (Tr. 2-3).
{¶5} Appellant's pastor testified Appellant came to his church, Sovereign Grace Chapel, during the pandemic because Appellant's former church required masks. The pastor generally opined Appellant had "a sincerely held religious conviction that he believed he would be violating the Ninth Commandment and some other principled convictions from the scripture" and could not "with a clear conscience be wearing a mask." (Tr. 4). The content of the cited commandment was not mentioned, and it was not explained how it related to masking during a pandemic.1
{¶6} Appellant's explanation was as follows: (Tr. 5).
{¶7} The judge noted Appellant never raised his religious objection to the court in any formal fashion despite being warned multiple times by court staff. Still, the judge noted she found Appellant's "beliefs are sincere" and said she did not dispute the statements provided by Appellant and his pastor. The judge explained the mask order was not a suggestion and was issued without exceptions to protect the public and court staff so the court could ensure the effective administration of justice through the pandemic. It was also noted Appellant had a rare benefit for a contempt defendant: the opinion of the law department.
{¶8} The court concluded Appellant admitted he did not wear a mask and he repeatedly and blatantly violated the authority and dignity of the court. It was specified that Appellant was found guilty beyond a reasonable doubt of contempt of court by violating the court's mask order. Appellant was sentenced to 10 days in jail and fined $250. (Tr. 6-7); (3/18/22 J.E.).
{¶9} Appellant filed a timely notice of appeal. His jail term was stayed pending appeal (under principles related to the automatic misdemeanor stay provision). In the praecipe, Appellant asked for a complete transcript; however, he then made comments under the section for a partial transcript and only listed the March 18, 2022 hearing. Still, he failed to order a transcript from a court reporter. His brief cited an audio recording from the March 18, 2022 hearing, acknowledging he did not have a transcription made.
{¶10} Notably, "The appellant shall order the transcript in writing and shall file a copy of the transcript order with the clerk of the trial court." App.R. 9(B)(3),(6) (). See also 7th Dist.Loc.R. 9C. The state objected but then (with this court's permission) supplemented the record with the March 18, 2022 written transcript, which the state ordered even though the obligation rested on the Appellant here.
{¶11} In addition to referring to the March 18, 2022 hearing, Appellant's brief refers to facts allegedly occurring on February 23, 2022. He therein admits: walking into the courthouse without a mask (notwithstanding the security guard at the front desk inquiring about his lack of a mask); waiting outside of a courtroom and rejecting another security guard's request for him to don a mask, even after she said he would be reported to the police department's internal affairs department; entering a courtroom while maskless to await the case for which he had been subpoenaed to testify; and walking around the courthouse maskless after the case was continued (while attempting to obtain a signature on the subpoena for work purposes).
{¶12} These facts are not contained in the judgment entry signed that day or mentioned at the March 18, 2022 hearing. Appellant did not obtain a transcript from February 23, 2022 or utilize an alternative under division (C) or (D) of App.R. 9.
ASSIGNMENT OF ERROR ONE: CRIMINAL CONTEMPT
{¶13} Appellant sets forth two assignments of error, the first of which alleges:
"THE TRIAL COURT ERRED IN FINDING DEFENDANT/APPELLANT IN CRIMINAL CONTEMPT OF COURT AND SENTENCING DEFENDANT/APPELLANT TO A DEFINITE TERM IN JAIL."
{¶14} Appellant contends the court abused its discretion by sentencing him to a definite jail term as if the proceedings involved criminal contempt. He notes criminal contempt could have been punished summarily, but here, charges were filed and process was issued for a later hearing. He characterizes the contempt as indirect because the mask order was issued in order to protect others around the entire courthouse and concludes the case should have been treated as a civil contempt with an opportunity to purge. He then claims purging would have occurred automatically by operation of law because the mask order was terminated on February 28, 2022, five days after his violation but before the March 19, 2022 contempt hearing.2
{¶15} A contempt decision rests within the trial court's "sound discretion." State v. Kilbane , 61 Ohio St.2d 201, 204, 400 N.E.2d 386 (1980). An abuse of discretion consists of more than an error of judgment but encompasses an attitude on the part of the trial court that is unreasonable, unconscionable, or arbitrary. State v. Thompson , 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 91.
{¶16} "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." R.C. 2705.01. This is the codification of the court's pre-existing power to punish direct contemnors summarily. Kilbane , 61 Ohio St.2d at 204, 400 N.E.2d 386.
{¶17} "A person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer * * *." R.C. 2705.02. "In cases under section 2705.02 of the Revised Code, a charge in writing shall be filed with the clerk of the court, an entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel." R.C. 2705.03. "At the hearing, the court shall investigate the charge and hear any answer or testimony that the accused makes or offers and shall determine whether the accused is guilty of the contempt charge." R.C. 2705.05(A). A case is not automatically labeled indirect contempt merely because there was disobedience to an established court order, which is mentioned in R.C. 2705.02. Kilbane , 61 Ohio St.2d at 204, 400 N.E.2d 386.
{¶18} Statutorily, a first offense of contempt carries a maximum fine of $250 and a definite term of imprisonment of not more than 30 days in jail. R.C. 2705.05(A)(1).3 "When the contempt consists of the omission to do an act which the accused yet can perform, he may be imprisoned until he performs it." R.C. 2705.06. "When a person is committed to jail for contempt, the court or judge who made the order may discharge him from imprisonment when it appears that the public interest will not suffer thereby." R.C. 2705.08.
{¶19} The state characterizes the contempt as direct, noting Appellant acknowledges a direct contempt includes misconduct committed in the presence of the judge or so near the courtroom that it obstructs the court's administration of justice. As the court pointed out, the continued operation of the court depended on protecting the staff and the public with the mask order.
{¶20} As the statute makes clear: "An act need not be in the immediate presence of the court in order to constitute direct contempt, if it tends to obstruct...
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