FILED
Dec 14 2017, 10:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth A. Johnson Curtis T. Hill, Jr.
Victoria L. Bailey Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Fearman, December 14, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1704-CR-802
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc Rothenberg,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G02-1703-MC-10188
May, Judge.
Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017 Page 1 of 6
[1] Bryan Fearman appeals his 910-day sentence for direct criminal contempt, 1
arguing a sentence longer than six months violates his right to a trial by jury
under the Sixth Amendment of the United States Constitution. The State
argues this matter should be remanded to resolve the number of instances of
direct contempt for which the trial court intended to sanction Fearman. We
reverse Fearman’s sentence and remand for the trial court to enter a sentencing
order for criminal contempt with a six-month sentence.
Facts and Procedural History
[2] Fearman was convicted of attempting to murder Lerron McDowell, as well as
several other offenses. 2 The McDowell family attended Fearman’s sentencing
hearing on March 17, 2017. When the prosecutor informed the court of the
family’s presence, Fearman said, “Who gives a f*ck if they’re in the f*cking
room.” (Tr. Vol. II at 6.) The judge informed Fearman his behavior in court
would be considered when he was sentenced. Fearman then rolled his eyes and
said, “I’ll be out long enough to walk. B*tch is [sic] still got to worry about
me.” (Id. at 7.) When asked to repeat what he said, Fearman said, “Read my
lips, when I get out I’m going to wring his f*cking neck.” (Id.) The judge had
Fearman removed from the courtroom.
1
Ind. Code § 34-47-2-1 (1998).
2
The record does not provide details as to Fearman’s criminal convictions; however, the trial court’s order
and abstract of judgment both list multiple cause numbers to which the contempt sentence is ordered to run
consecutive.
Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017 Page 2 of 6
[3] The trial court later issued an order in which it stated: “Through this order the
court formally finds the defendant in direct contempt of court for his behavior
at sentencing, especially the express threats made to the Victim.” (App. Vol. II
at 13.) Factors taken into consideration when sentencing Fearman for direct
contempt were:
a. The nature of the proceeding. The defendant was being
sentenced for the violent crime of Attempt Murder, a Level 1
Felony.
b. The behavior of the defendant. The defendant displayed
disrespect for the court through his tone and physical behavior.
c. The contemptable [sic] behavior itself. The defendant
committed the forcible felony of intimidation in open court,
threatening the person of the Victim of the underlying attempted
murder.
(Id.) Additionally, the trial court noted in its order Fearman’s behavior equated
to Level 6 felony intimidation, 3 “punishable up to 2.5 years of incarceration,
and $10,000.00 fine.” (Id.) Considering those factors, the trial court sentenced
Fearman for contempt to 910 days in the Department of Correction,
consecutive to his other sentences, without credit time.
Discussion and Decision
[4] A trial court may cite a person for direct criminal contempt when “the court has
firsthand and immediate knowledge of acts demonstrating a clear disregard for
3
Ind. Code § 35-45-2-1 (2014).
Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017 Page 3 of 6
its authority which threaten to undermine the integrity of the judicial process
and impede the performance of court work.” Hopping v. State, 637 N.E.2d 1294,
1297 (Ind. 1994), cert. denied 513 U.S. 1017 (1994). “The power of Indiana
courts to summarily punish for direct criminal contempt, while specified by
statute, rests upon the common law. It is inherent in the courts.” Id. Such
sanctions are “essential to ensuring that judicial processes are not undermined.”
Mockbee v. State, 80 N.E.3d 917, 921 (Ind. Ct. App. 2017), trans. denied.
[5] The Sixth Amendment to the United States Constitution, applied to the States
through the Fourteenth Amendment, guarantees the right to a jury trial in
criminal cases. Duncan v. Louisiana, 391 U.S. 145, 149 (1968), reh’g denied.
However, petty offenses, wherein the penalty “imposed does not exceed six
months or a longer penalty has not been expressly authorized by statute,” may
be tried without a jury. Taylor v. Hayes, 418 U.S. 488, 495 (1974). “[I]n the
absence of legislative authorization of serious penalties for contempt, a State
may choose to try any contempt without a jury if it determines not to impose a
sentence longer than six months.” Id. at 496. Sentences exceeding six months
may not be imposed absent a jury trial or waiver thereof. Holly v. State, 681
N.E.2d 1176, 1177-78 (Ind. Ct. App. 1997).
[6] Without challenging the trial court’s finding of direct contempt, Fearman
argues he was denied his Sixth Amendment right to trial by jury because his
sentence for direct contempt exceeded six months. The State argues the trial
court could have been imposing sanctions for multiple counts of contempt and,
Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017 Page 4 of 6
based thereon, asks us to remand to the trial court for clarification of the
number of counts of contempt for which Fearman was sentenced.
[7] Implicit in the State’s request for remand and clarification of the number of
counts of contempt is an assumption that the trial court could have stacked
multiple six-month sentences to justify the sentence imposed. However, the
State does not provide any support for that allegation, and the law we found
does not indicate we should follow the State’s suggestion. Instead, the United
States Supreme Court has held that although a trial court may find a person in
contempt multiple times arising out of a single proceeding, the sentence,
without a jury trial, may not exceed six months. Codispoti v. Pennsylvania, 418
U.S. 506, 517 (1974).
[8] At his sentencing hearing, Fearman interrupted the court and spoke profanely
multiple times, and then the court removed him from the courtroom and
sentenced him for contempt. This all occurred during a single proceeding,
lasted a short period of time, was not interrupted by any other proceeding, and
flowed from his single intent to disrupt the court proceedings by threatening
McDowell. See Mockbee, 80 N.E.3d at 923 (enumerated factors of what
constitutes a single episode of contemptuous behavior). Fearman’s multiple
acts of contemptuous behavior constitute a single contemptuous episode and
can only warrant a “single punishment of not more than six months[,] without
a jury trial.” Id. Therefore, we reverse Fearman’s 910-day sentence for
contempt and remand for the trial court to enter a sentencing order for criminal
contempt with a six-month sentence, to be served consecutive to Fearman’s
Court of Appeals of Indiana | Opinion 49A04-1704-CR-802 | December 14, 2017 Page 5 of 6
criminal convictions in 49G02-1507-F1-25929, 49G02-1507-F4-26885, 49G02-
1510-FD-38200, and 49G02-1510-F5-38275.
[9] Reversed and remanded.
Barnes, J., and Bradford, J., concur.
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