Roselle v. State

MEMORANDUM OPINION

BUSSEY, Presiding Judge:

Appellant was convicted in the District Court of Cleveland County, Oklahoma of the crime of Contempt in summary proceedings on the 20th day of September 1971 before District Court Judge Elvin Brown, who fixed Appellant’s punishment at a fine of One Hundred Dollars ($100.-00).

This purported appeal must be dismissed under the rules of this Court for two reasons. First, the original record reflects no formal judgment and sentence filed in this case, a jurisdictionally fatal omission. Baker v. State, Okl.Cr., 496 P.2d 1195 (1972).

The second reason grows out of a question of first impression in the state of Oklahoma; that is whether contempt is to be classed as a misdemeanor or a felony, which question was raised in the Attorney General’s Motion to Dismiss and the subsequent response to the motion by the Appellant.

The record reflects that the Appellant was attorney of record for one Leona T. Miller in Case No. CRF-71-420, set on the Cleveland County District Court docket for trial at 9:00 a. m. on the date in question before Associate District Judge J. David Rambo. The court Minute reflects a sixty-six (66) member jury panel was asked to wait and that the Appellant appeared at 9:15 a. m. The record also reflects the Appellant was then taken before Judge Brown and asked if he had any excuse for being late, and was also asked whether or not it was the first time he had made an appearance in that court. The Appellant replied, “No,” and then was asked:

“BY THE COURT: Mr. Roselle, is there any reason known to you why the Court should not hold you in contempt?

“BY MR. ROSELLE: Well, I don’t know. If the Court wants it that way—

“BY THE COURT: I consider that you have willfully disobeyed the order of the Court.

“BY MR. ROSELLE: (No answer)

“BY THE COURT: Does your clock now show it to be 9:15 ?

“BY MR. ROSELLE: My clock shows it to be 9:10. I am sure that your clock is correct.

“BY THE COURT: Mr. Roselle, when we have cases set at 9:00, we expect the lawyers and parties to be present. Only an act of God excuses. Poor planning is not defensible. Our cases are set at 9:00, and the Court finds you in contempt and fixed your punishment at a fine of $100.”

Judge Brown’s signed Bench Minute further reflects the statement that:

“On being asked by the Court if he had cause to show why he should not be punished for contempt, he answered that if the Court was going to put it that way, he guessed not. He was found guilty of contempt for voluntarily and non-accidentally interferring with the administration of justice by neglecting to appear at the published hour, thus delaying and hindering jurors, witnesses, litigants, attorneys and Court personnel. His punishment was fixed at a fine of $100.”

Without reaching the merits of the question whether the record supports a finding of direct criminal contempt, we will observe that this Court has held that direct contempt is a crime and that criminal contempt is an offense against the public or society by conduct that is directed against the dignity and authority of the court or a judge acting judicially, obstructive of the administration of justice and disrespectful to the majesty of the state. Ex parte Stephenson, 89 Okl.Cr. 427, 209 P.2d 515 (1949).

The statutory construction and conclusion advanced by the Attorney General in the State’s Motion to Dismiss is not persuasive, although we agree with the conclusion that direct criminal contempt is a misdemeanor. It is interesting to note that the Appellant’s response to the motion put him in the position of arguing that the crime of which he stands convicted is a higher grade of crime, that is to say, a felony rather than a misdemeanor, but we are unable to agree with either his reasoning or his conclusion.

The Legislature fixed the punishment for contempt as follows: “Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.” 21 O.S.1971, § 566. Neither the punishment section nor the statutory definition of contempt found at 21 O.S. 1971, § 565 specifies whether or not contempt is a felony or misdemeanor. Nor does the punishment section of this statute, as is in the case with most felonies, specify that imprisonment shall be in the state penitentiary, which is clearly a felony situation. Therefore, we must define the term “imprisonment.” This Court adopted the reasoning of an early Oklahoma case in Carr v. State, Okl.Cr., 359 P.2d 606 (1961), wherein the Court stated:

“ ‘ * * * the word “imprisonment”, in its ordinary sense, contemplates and means without the common jail, rather than the penitentiary.’ ”

Based upon the foregoing where the word “imprisonment” is used without more, that is to say, an indication in the statute that the imprisonment is to take place in the state penitentiary or that it is to be for a period of time in excess of one year or that the crime is defined in the statute as a felony, that the place of imprisonment will be the county jail and therefore, we conclude that the crime of Contempt is a misdemeanor.

Having concluded that Contempt is a misdemeanor offense, we are then within the Court’s rules with regard to the computing of time. They require that the petition in error and accompanying documents be filed within 120 days of the date of judgment. In this case, by Appellant’s own pleadings wherein he states that he did not pick up the transcripts until 165 days after the judgment and sentence, this purported appeal is more than a month out of time and must be dismissed.

Inasmuch as the Oklahoma Legislature did not see fit to impose a statutory minimum or maximum on punishment for contempt, but left the matter wholly to the discretion of the trial judge, and since there may be others who share the view of the Appellant here that criminal contempt should be treated as a felony, we feel certain guidelines are in order at this point to forestall any notion that this Court will endorse out-of-hand summary proceedings for direct criminal contempt in all cases.

Basically, we adopt the view expressed by the United States Supreme Court in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), wherein that Court rejected the view that a six-month prison term for criminal contempt warranted a jury trial. Since that time, the high Court has not seen fit to move the line from the six-month point insofar as distinguishing between “petty and serious” offenses and reinforce their Cheff, supra, decision in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Therefore, this Court would adopt the position that in a case of direct criminal contempt which is to be handled in summary fashion by the court should it become evident or apparent that the punishment to be imposed will exceed a term of six months in the county jail, absent an intelligent and informed waiver, the defendant will be entitled to a jury trial.

It is, therefore, the order of this Court that the purported appeal herein be, and the same is hereby, dismissed.

BRETT, J., dissents. SIMMS, J. (assigned), specially concurs.