Opinion
24A-CR-244
10-16-2024
David Edward Jackson, III, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO-SE David Edward Jackson, III Valparaiso, Indiana ATTORNEYS FOR APPELLEES Theodore E. Rokita Indiana Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Natalie Bokota, Judge The Honorable Kathleen A. Sullivan, Magistrate Trial Court Cause Nos. 45G02-1803-F3-11, 45G02-1803-F4-11, 45G02-1803-F4-9
APPELLANT PRO-SE
David Edward Jackson, III
Valparaiso, Indiana
ATTORNEYS FOR APPELLEES
Theodore E. Rokita
Indiana Attorney General
Ian McLean
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] David Edward Jackson, III, appearing pro-se, appeals the denial of his "Motion of [sic] Contempt/Rule to Show Cause" naming the State of Indiana as the respondent. App. v. III at 58. We affirm.
Issues
[¶2] Although Jackson's lengthy appeal brief purports to raise twenty-six issues, he only references two issues that are relevant to the appealed order denying his motion for contempt. We consolidate and restate those issues as follows:
I. Whether the trial court erred in denying the petition alleging indirect contempt of court on the part of Nadia Wardrip, a deputy prosecutor, and Jacob Otto, a probation officer.
II. Whether Jackson waived his claim that the trial court erred by failing to appoint a special judge and hold a hearing on the petition for contempt.
Facts and Procedural History
[¶3] The background of Jackson's crimes and related proceedings was summarized by this Court's opinion affirming in part and reversing in part the trial court's decision to revoke Jackson's probation in 45G02-1803-F3-11 ("F3-11"), 45G02-1803-F4-11 ("F4-11"), and 45G02-1803- F4-9 ("F4-9"), as follows:
Between 2014 and 2018, when Jackson was over thirty years old, he repeatedly and "on numerous occasions" molested three different girls who were fourteen to sixteen years old. Jackson compelled two girls to submit to being kissed by him and to his fondling of their genitals, breasts, or buttocks at two different game stores in Hobart. Jackson committed this fondling behavior against his third victim and also compelled her to touch his penis. On March 14, 2018, the State charged Jackson with a total of ten felonies under three different cause numbers. On February 23, 2021, Jackson pled guilty to one count of Level 5 felony sexual misconduct with a minor in each of these three cases. On March 26, 2021, the trial court accepted Jackson's guilty pleas and sentenced him to concurrent terms of three years of incarceration for each count.Jackson v. State ("Jackson I"), Case No. 22A-CR-2693, 2023 WL 3493119 at *1 (Ind.Ct.App. May 17, 2023) (mem.) (record citations removed). Parts of Jackson's three sentences were suspended in favor of probation and, as a condition of probation, Jackson was required to participate in sex-offender therapy and take polygraph examinations.
[¶4] In April 2021, the State filed a petition to revoke Jackson's probation in all three cases. On May 17, 2021, on Jackson's motion, the trial court stayed the probation requirement for polygraph examinations, pending further determination. In September 2021, the State amended its petition to revoke probation, and Jackson moved to dismiss the State's petitions. A hearing was held on October 8, 2021, and the trial court denied Jackson's motion to dismiss. The trial court also denied Jackson's motion to stay therapy and polygraph examinations, as follows:
Additionally, the Defendant's Motion to Stay Polygraph Examination and Sex Offender Therapy is denied for the reason that the State has agreed to provide a letter of immunity to the Defendant barring prosecution for incriminatory statements compelled in violation of the Defendant's right against selfincrimination.App. v. III at 122. The trial court also found that Jackson had violated probation and set a disposition hearing for October 27, 2021.
[¶5] Jackson pursued post-conviction relief in F3-11, F4-9, and F4-11. This Court's opinion in Jackson I summarized the outcome of that post-conviction litigation, as follows:
Jackson['s] post-conviction proceedings ... resulted in an agreement on November 23, 2021, pursuant to which Jackson's guilty pleas would be set aside and his convictions vacated. Jackson, however, would plead guilty in all three cases pursuant to a new plea agreement, in which he agreed to plead guilty to two counts of Level 6 felony and one count of Level 5 felony sexual misconduct with a minor. Jackson agreed to sentences of two and one-half years each for his Level 6 felony convictions, with 534 days executed and the balance suspended to probation,
and a sentence of three years for his Level 5 felony conviction, with 305 days executed and the balance suspended to probation, all sentences to be served concurrently. Jackson also agreed that he would be "required to participate in Project Pro through Porter County PACT[.]" Jackson pled guilty pursuant to the new agreement and was sentenced accordingly on November 23, 2021. Because Jackson's pretrial detention had satisfied the executed portions of his sentences in all three cases, he was released to probation.Jackson I, 2023 WL 3493119 at *1 (record citations removed).
[¶6] Jackson later violated the terms of his probation, and the trial court revoked the balance of his suspended sentences. Jackson appealed, and this Court found that the trial court incorrectly believed that it did not have discretion in sanctioning Jackson. Id. at *4. This Court affirmed the decision that Jackson had violated his probation but remanded for further proceedings. Id. On August 10, 2023, the trial court reconsidered Jackson's sanction and determined that revocation of the balance of his suspended sentences was the appropriate sanction. Jackson thereafter pursued a second action for post-conviction relief which resulted in this Court affirming the denial of his petition. Jackson v. State ("Jackson II"), Case No. 23A-PC-583, 2024 WL 853709 (Ind.Ct.App. Feb. 29, 2024), trans. denied.
[¶7] On January 5, 2024, Jackson filed a "Motion of Contempt/Rule to Show Cause" in F3-11, F4-11, and F4-9, alleging that prosecutor Wardrip had written an immunity letter "worded in such a way" that she was allowed to communicate about his criminal cases with the guardian ad litem and the lawyers in his pending civil case. App. v. III at 58, 60. The petition claimed to recite transcript selections in that civil case showing that both Wardrip and probation officer Otto had testified about his criminal cases. Jackson alleged that Wardrip and Otto had violated the "Indiana Access to Court Information Act," the Rules of Professional Conduct, and Judicial Conference's Probation Standards. Id. at 68-70. On January 10, the trial court issued an order directing the State "to file a response as to the pleading" by January 24. The State filed a response, and Jackson filed a reply. On January 25, 2024, the trial court denied Jackson's motion without further proceedings. Jackson filed a motion to reconsider, which was also denied. This appeal ensued.
Jackson has a pending "Appellant's Reply to Courts [sic] Order Denying Motion to Reconsider" in which he asks this Court to clarify its September 17, 2024, order denying his "Motion to Reconsider Dismissal of Appeal with Prejudice and Denied [sic] Appointment of Counsel, Notice of Mandamus Court of Appellate Court Action." The September 17 order issued by our motions panel apparently denied the motion because Jackson never filed a request for appointed counsel in this appeal, nor did we issue an order dismissing this appeal. The September 17, 2024, order needs no clarification; therefore, by separate order, we deny Jackson's September 17 "Reply" to the extent it seeks an order of clarification.
Discussion and Decision
Standard of Review
[¶8] The only relevant issue Jackson raises is whether the trial court erred when it denied his motion for contempt without a hearing or appointment of a special judge. We review a trial court's contempt decision for an abuse of discretion. See, e.g., Reed v. Cassady, 27 N.E.3d 1104, 1114 (Ind.Ct.App. 2015), trans. denied. "We will reverse a trial court's [decision on] contempt only if there is no evidence or inference therefrom to support the finding." Wilson v. State, 988 N.E.2d 1211, 1218 (Ind.Ct.App. 2013) (citing Witt v. Jay Petroleum, Inc., 964 N.E.2d 198 (Ind. 2012)). "We affirm unless, after reviewing the record, we conclude that the trial court's decision is against the logic and circumstances before it[,] and we have a firm and definite belief that a mistake has been made by the trial court." Reed, 27 N.E.3d at 1114.
Contempt Ruling
[¶9] There are two types of contempt, direct and indirect. Indirect contempt, which is at issue in this case, is willful disobedience of any lawfully entered court order of which the offender had notice. See, e.g., Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind.Ct.App. 1997), trans. denied; see also Ind. Code § 34-47-3-1. Indirect contempt arises from conduct which does not occur in the presence of the court, including failure of a party to obey a court order. Mitchell, 677 N.E.2d at 558.
Jackson labels the alleged contempt in this case as "criminal." Appellant's Br. at 22. However, as our Supreme Court has recently reiterated,
"[c[ontempt is neither a criminal offense nor a civil offense. State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990). It is instead a sui generis proceeding making it a unique proceeding that is divided into two categories: direct contempt and indirect contempt. Id. at 33-34."Finnegan v. State, Case No. 24S-MI-68, 2024 WL 4052975 at *2 (Ind. Sept. 5, 2024).
Indiana Code Section 34-47-3-1 provides, in full:
A person who is guilty of any willful disobedience of any process, or any order lawfully issued:
(1) by any court of record, or by the proper officer of the court;
(2) under the authority of law, or the direction of the court; and
(3) after the process or order has been served upon the person;
is guilty of an indirect contempt of the court that issued the process or order.
In order to be held in contempt for failure to follow the court's order, a party must have willfully disobeyed the court order. Ind. High School Athletic Ass'n v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002). The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. Id. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.City of Gary v. Major, 822 N.E.2d 165, 170-71 (Ind. 2005); see also D.G. v. W.M., 118 N.E.3d 26, 31 (Ind.Ct.App. 2019) (noting a party may be punished for contempt of a trial court's order only when (1) there is an order commanding the accused to do or refrain from doing something, and (2) the party acted with willful disobedience), trans. denied.
[¶10] When "facts alleged to constitute the contempt have been .. brought to the knowledge of the court" through an information or motion and "verified by the oath of affirmation," I.C. § 34-47-3-5(d), the trial court must issue a "rule to show cause" before the alleged contemptor may be required to answer the charge or be punished for contempt, I.C. § 34-47-3-5(b). The rule to show cause must serve the alleged contemptor with a "rule of the court against which the contempt was alleged to have been committed," e.g., the court order allegedly violated. I.C. § 34-47-3-5(a); see also I.C. § 34-47-3-5(b) (describing the required contents of a rule to show cause).
[¶11] Here, in his motion for contempt, Jackson did not point to a specific order that Waldrip and/or Otto allegedly violated. Jackson makes vague references to "a Court Order against Nadia [Waldrip] for the Immunity Letter," and an alleged order that "Prosecutor Nadia Waldrip . . . draft an immunity [l]etter for Mr. Jackson so that he would not have to worry about any of his possible statements that could be used against him." App. v. III at 58, 59. However, Jackson neither cites to such an order nor provides a copy of such order. Because it appears that no such order exists, the trial court did not err when it refused to issue a rule to show cause. Indeed, the court could not have issued a rule to show cause that served the State with a "rule [or order] of the court against which the contempt was alleged to have been committed," because no such order existed. For that same reason, the trial court did not abuse its discretion when it denied Jackson's contempt motion.
[¶12] On appeal, Jackson has provided a copy of the trial court's October 8, 2021, order in which it denied Jackson's motion to stay his participation in therapy and polygraph examinations "for the reason that the State has agreed to provide a letter of immunity to the Defendant barring prosecution for incriminatory statements compelled in violation of the Defendant's right against selfincrimination." App. v. III at 122. However, not only did Jackson fail to identify that order in his motion for contempt, but that order "did not "command[] the accused to do or refrain from doing something" such that it was enforceable against her in a contempt action. D.W., 118 N.E.3d at 31. Nor was the order "so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated." Major, 822 N.E.2d at 170-71.
[¶13] The trial court did not abuse its discretion when it denied Jackson's motion for contempt.
Jackson also claims that Wardrip and Otto acted contemptuously as defined by Section 34-47-3-4, "False or Inaccurate Reporting of Case, Trial, or Proceeding." However, as Jackson did not raise that claim below, it is waived. See, e.g., State v. Allen, 187 N.E.3d 221, 228 (Ind.Ct.App. 2022), trans. denied.
Procedural Issues/Waiver
[¶14] Jackson asserts that the trial court violated his procedural due process rights by failing to hold a hearing on his contempt motion and failing to appoint a special judge. However, Jackson did not raise that contention in his motion to reconsider or at any other time in the trial court proceedings; thus the trial court did not have an opportunity to rule on any challenge he had to the procedure. As Jackson presents this issue for the first time on appeal, it is waived. See, e.g., State v. Allen, 187 N.E.3d 221, 228 (Ind.Ct.App. 2022) (citing Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004)) ("Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal."), trans. denied.
Jackson also alleges the trial court erred by failing to allow him a "Special Prosecutor" in the contempt action. Appellant's Br. at 24. However, as Jackson cites no legal authority in support of that claim, it is waived. See Ind. Appellate Rule 46(A)(8).
[¶15] To overcome waiver, Jackson must demonstrate fundamental error. See Tharpe v. State, 955 N.E.2d 836, 839 (Ind.Ct.App. 2011) (noting an appellant can argue fundamental error to overcome the waiver of an issue), trans. denied. However, Jackson does not raise a fundamental error claim; therefore, it is waived. See, e.g., Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding the failure to raise the issue of fundamental error in an initial brief resulted in waiver of issue "entirely").
Fundamental error occurs when a decision violates "basic and elementary principles, and the harm or potential for harm [can] not be denied." Warriner v. State, 435 N.E.2d 562, 563 (Ind. 1982). Fundamental error is a "narrow exception" to the waiver rule. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).
We acknowledge that Jackson brings this appeal pro se. However,
[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Twin Lakes Reg'l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind.Ct.App. 2013). This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind.Ct.App. 2004).Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016), trans. denied.
Conclusion
[¶16] Jackson has failed to show that the trial court abused its discretion when it denied his motion for contempt. And he has waived his procedural claims by failing to raise them in the trial court and failing to argue fundamental error on appeal.
[¶17] Affirmed.
Bradford, J., and Foley, J., concur.