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Fearman v. State

Court of Appeals of Indiana

December 14, 2017

Bryan Fearman, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable Marc Rothenberg, Judge Trial Court Cause No. 49G02-1703-MC-10188

          Attorney for Appellant Ruth A. Johnson Victoria L. Bailey Marion County Public Defender Agency

          Attorneys for Appellee Curtis T. Hill, Jr., Katherine Cooper Deputy Attorney General

          May, Judge.

         [¶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.

         [¶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 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. denied513 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 ...


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