A man seeking post-conviction relief from a nearly two-year contempt sentence did not persuade the Indiana Court of Appeals that his counsel was ineffective, though one judge on the panel noted her vote would have been different if the case were in a different procedural posture.
Bobby Wine v. State of Indiana, 19A-PC-2268, began in July 2012, when Bobby Wine was convicted of Class B felony dealing in a controlled substance.
During his trial, the Wabash Circuit Court found Wine in direct criminal contempt on five occasions and sentenced him to an aggregate of 900 days for the contempt, which included loud, disrespectful and sarcastic remarks, arguing with the judge, and complaining about his counsel. Wine was removed from the courtroom on several occasions, and after the first disruption, he was warned that “for each and every contempt, [Wine] will suffer 180 days in the Wabash County Jail. Each and every one, consecutive.”
Wine appealed, and the Indiana Court of Appeals in 2014 found that the record supported only four episodes of contempt. The 180-day sentences for each episode were upheld, but his aggregate sentence was reduced to 720 days for the four counts.
Also in 2014, the COA upheld Wine’s underlying dealing charge.
Then in June 2019, Wine filed an amended petition for post-conviction relief, claiming ineffective assistance of trial and appellate counsel. Specifically, he argued his attorneys should have objected to the length of his contempt sentence because the instances of contempt were part of a single episode.
The trial court denied the PCR motion, and the Indiana Court of Appeals upheld the denial Wednesday.
After declining the state’s cross-appeal to dismiss the cause for lack of subject-matter jurisdiction, Judge Robert Altice first addressed Wine’s ineffective assistance of trial counsel claim. Wine based that claim on Codispoti v. Pennsylvania, 481 U.S. 506 (1974), where the U.S. Supreme Court held that multiple instances of contempt cannot be “separate offenses” if they “arose from a single trial, were charged by a single judge, and were tried in a single proceeding.”
But “(u)nlike Codispoti, there was no ‘post-verdict’ adjudication of Wine’s contemptuous episodes,” Altice wrote. “Rather, the trial court imposed a sentence of 180 days on each count immediately after determining that Wine had committed a particular contemptuous act. As a result, the rule set forth in Codispoti is not instructive here, and Wine has failed to show that an objection to the length of his sentence on this basis would have been sustained.”
Similarly, the COA rejected Wine’s reliance on Mockbee v. State, 80 N.E.3d 917, 922-923 (Ind. Ct. App. 2017), which was decided after Wine’s direct appeal.
“In sum, we do not find Wine’s reliance on Codispoti or Mockbee controlling in these circumstances,” Altice wrote. “Mockbee had not been decided at the time of Wine’s direct appeal, and the record supports the conclusion that Wine committed separate acts of criminal contempt over the court of his three-day jury trial. For these reasons, Wine has failed to show that an objection to the 720-day aggregate sentence on this basis would have been sustained.”
Wine’s claim of ineffective assistance of appellate counsel failed for the same reason, Altice wrote – that is, his cases involved multiple instances of contempt, not one episode.
Judge Melissa May wrote a separate opinion in which she concurred in result, but wrote separately “to address the State’s argument that Wine’s appeal should be dismissed and to emphasize the importance that the procedural posture played in determining my vote.”
In her opinion, May agreed with Altice and Judge Elizabeth Tavitas that the state’s argument for dismissal – that PCR rules do not apply to criminal contempt, creating a lack of subject matter jurisdiction – should be rejected. But if the case were up on direct appeal, May would have voted to remand.
“In that situation, the trial court could choose to modify Wine’s sentence to 180 days on the grounds that because the contempt findings and imposition of sanctions occurred in such quick succession, they amount to only one episode of contempt,” May wrote. “… Or, the trial court could conduct a jury trial on the multiple charges of contempt, and if the jury found Wine guilty, the court could impose a sentence greater than six months.”
But, May continued, “Wine’s appeal in the case at bar follows the denial of his petition for post-conviction relief on the basis that both his trial counsel and his appellate counsel were ineffective for not arguing that Wine was entitled to a jury trial. … I vote to affirm the denial of Wine’s petition for postconviction relief because there was not any Indiana case law available at the time of Wine’s trial or his direct appeal to indicate Wine was entitled to a jury trial before the court imposed sentences for contempt which totaled over 180-days.”