Brandon Boles v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana GEORGE P. SHERMAN
Deputy Attorney General
FILED
Indianapolis, Indiana
Oct 19 2012, 9:19 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
BRANDON BOLES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1203-CR-226
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Rebekah Pierson-Treacy, Judge
Cause No. 49F19-1004-CM-28136
October 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Brandon Boles received a suspended sentence for public intoxication and was also
ordered to complete twenty-four hours of community service. Boles failed to appear for a
compliance hearing, and the trial court issued a warrant for his arrest. After he was arrested,
a new compliance hearing was scheduled. The trial court sentenced him to ten days for his
failure to complete community service and ruled that the time that he had already served was
punishment for his failure to appear. Boles appeals, arguing that the trial court erred by
treating his failure to appear as a matter of direct contempt. The State does not contest
Boles’s argument on appeal, and we reverse the finding of contempt.
Facts and Procedural History
On April 7, 2010, Boles was charged with criminal mischief and public intoxication in
Marion County. On September 9, 2010, Boles pled guilty to public intoxication in exchange
for dismissal of the criminal mischief charge. Boles agreed to a sentence of 180 days, all
suspended except for time served. He also agreed to complete twenty-four hours of
community service, and in the event that he failed to complete his community service, he
agreed to serve at least three days for every eight hours not completed. The trial court
accepted the plea agreement and sentenced Boles accordingly. The court set a compliance
hearing for November 1, 2010. Boles moved to continue the compliance hearing, and it was
reset for November 15, 2010. Boles failed to appear for that hearing, and the court issued a
warrant for his arrest.
Boles was arrested February 27, 2012, and a compliance hearing was held on
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February 28, 2012. Boles indicated that he had failed to appear for the November 2010
compliance hearing because he was incarcerated in Hancock County Jail at that time. Boles
admitted that he had not completed any community service and indicated that he mistakenly
believed that he would not have been released from jail if he had any criminal matters still
pending.
The trial court sentenced Boles to ten additional days in jail for failing to complete his
community service. Boles requested credit for two days, the time that he had served since his
arrest. The court disagreed because those days were served “because he failed to appear in
court and had a warrant issued and was picked up on the warrant.” Tr. at 17. The court later
clarified that it considered those two days punishment for contempt of court and that it was
relying on Bellamy v. State, 952 N.E.2d 263 (Ind. Ct. App. 2011), trans. denied, in support of
its ruling. Boles now appeals.
Discussion and Decision
Boles argues that the trial court erred by treating his failure to appear as a matter of
direct contempt and by not giving him the opportunity to explain the reason for his failure to
appear before serving time for contempt. When reviewing a finding of contempt, we accept
as true the statement entered by the trial court. Id. at 266. We will reverse only when it
clearly appears that the act does not constitute a contemptuous act. Id. “Contemptuous acts
are those in opposition to a court’s authority, justice, and dignity.” Id. (quoting In re Nasser,
644 N.E.2d 93, 95 (Ind. 1994)). “Direct contempt includes those actions occurring near the
court, interfering with the business of the court, of which the judge has personal knowledge.
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Courts have inherent power to punish summarily acts of direct contempt without formal
charges or an evidentiary hearing.” Id. (citation omitted).
Acts of indirect contempt, on the other hand, are those which undermine the
activities of the court but fail to satisfy one of the other direct contempt
requirements. Indirect contempt proceedings require appointment of a special
judge and an array of due process protections, including notice and an
opportunity to be heard.
Id. (citation and quotation marks omitted).
In Bellamy, a criminal defendant appeared late for his trial, although he had previously
been warned that he would be found in contempt and taken into custody if he failed to timely
appear. The trial court found him in direct contempt and ordered him to serve five days in
jail. Bellamy appealed, arguing that the trial court erred by finding him in direct contempt.
We acknowledged that previous cases had held that a non-attorney may not be found in direct
contempt for failing to appear for a scheduled court hearing. Id. at 267 (citing Rice v. State,
874 N.E.2d 988, 991 (Ind. Ct. App. 2007), and Williams v. State ex rel. Harris, 690 N.E.2d
315, 317-18 (Ind. Ct. App. 1997)). We distinguished those cases on the ground that Bellamy
had received an explicit, prior warning that failure to timely appear would be punished by a
contempt finding and incarceration; therefore, we affirmed the trial court. Id.
The record in Boles’s case does not reflect that he received such a warning. The State
concedes as much and also acknowledges that the record indicates that Boles was
incarcerated at the time of the November 2010 compliance hearing. The State therefore has
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not contested Boles’s argument on appeal. We agree that the trial court erred by finding
Boles in direct contempt and therefore reverse the contempt finding.1
Reversed.
RILEY, J., and BAILEY, J., concur.
1
Boles does not request any relief in regards to credit for the time he served prior to the compliance
hearing.
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