Shepard v. Circuit Court for Outagamie County
Shepard v. Circuit Court for Outagamie County
Opinion of the Court
Kevin Shepard appeals an order imposing a jail sentence for summary contempt based upon his state of intoxication at the time of his criminal plea and sentencing hearing. The circuit court decided that Shepard's condition was intentional misconduct, called into question the validity of his no contest plea and required the vacation of that plea. It summarily imposed a fifteen-day jail sentence pursuant to ch. 785, Stats., but stayed it pending this appeal. Shepard argues that intentional misconduct requires more than an impaired mental capacity due to consumption of intoxicants. Shepard concludes that the record fails to disclose sufficient evidence of "intentional misconduct" as required by ch. 785.
THE COURT: Can I ask you a question? I suppose you can decline to answer because of the attorney/client relationship. Do you notice any odor of intoxicants upon Mr. Shepard?
MR. BARTMAN [Defense Counsel]: He has admitted to me that he had been drinking.
THE DEFENDANT: I had a couple of beers.
THE COURT: As he admitted to the Court.
THE DEFENDANT: I told you that.
THE COURT: Three beers, Mr. Shepard, generally does not account for at least in my estimate of the impairment of your judgment I think is being—
THE DEFENDANT: My judgment, you know—
THE COURT: Let me finish here. As being exhibited by your demeanor as you sit in the courtroom, the way you have responded and spoken, the way you appear, I am, therefore—
THE DEFENDANT: I just got done working, Your Honor.
*284 THE COURT: I'm going to ask you to submit to a preliminary breath test that the officer here can administer.
THE DEFENDANT: Like, what reason is this? Why?
THE COURT: Because I think that there is sufficient reason for this court to believe that you are indeed under the influence and for you to appear in court under that circumstance—
THE DEFENDANT: Yeah, I got my best friend here.
THE COURT: —is contemptuous of court proceedings. It puts into question the validity of that which we do here today. If you would.
(The officer administers the PBT.)
THE OFFICER: .28 .29
THE COURT: Is that adequate?
THE OFFICER: Pretty close.
THE DEFENDANT: What do I have to do? What does that got to do with anything?
THE COURT: You are extremely intoxicated.
MR. BARTMAN: Have — I have a—
THE DEFENDANT: I'm really pissed up.
MR. BARTMAN: Compounding Mr. Shepard's situation—
THE DEFENDANT: I come here and I wasn't driving, so I really don't care.
THE DEFENDANT: Well, I just figured I would be in jail for a while, a few days.
Based upon its finding that Shepard was intoxicated sufficiently to interfere with the court proceeding and the administration of justice, and after learning from the court officer that Shepard had decided to drink because he knew he was going to jail, the court imposed a fifteen-day jail sentence.
In re Contempt in In re M. P., 154 Wis. 2d 1, 452 N.W.2d 354 (1990), holds that summary contempt may be used only when the following requirements are met:
(1) [t]he contumacious act must have been committed in the actual presence of the court;
(2) the sanction must be imposed for the purpose of preserving order in the court;
(3) the sanction must be imposed for the purpose of protecting the authority and dignity of the court; and
(4) the sanction must be imposed immediately after the contempt.
Id. at 11, 452 N.W.2d at 357 (quoting In re Contempt in State v. Dewerth, 139 Wis. 2d 544, 552, 407 N.W.2d 862, 866 (1987)).
We therefore first examine the circuit court's findings of fact, express and implied. These findings shall not be set aside unless clearly erroneous, and we must give due regard to the circuit court's opportunity to judge the credibility of the witnesses. Section 805.17(2), STATS. The court found that Shepard was extremely intoxicated. This finding was based upon Shepard's demeanor, responses and appearance, as well as a breath test whose accuracy was never challenged. Thus, the court's findings regarding Shepard's degree of intoxication are not clearly erroneous.
The court also implicitly found the conduct intentional. The evidence is undisputed that Shepard's drinking was voluntary. The legal definition of "intentional" is essentially the same, whether found in tort law or in criminal law, and we see no reason to use a separate definition when interpreting the same word
Shepard's condition, as found by the circuit court, also constituted misconduct. Section 785.01, STATS., is intended to be broadly interpreted to include a wide range of misbehavior.
Shepard's voluntary intoxication was similarly disruptive. He appeared for the purpose of entering a voluntary and knowing plea to a criminal charge. The court chose to abort Shepard's no contest plea because his conduct called into question his understanding of the nature of the charge and the consequence of his plea as mandated under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and related cases. It required the proceeding to be rescheduled, thereby interfering with a court proceeding and with the administration of justice.
Shepard voluntarily and knowingly created the condition causing disruption of these courtroom proceedings, and disrupted the basic order, authority and dignity essential to the conduct of judicial proceedings. Because he engaged in intentional misconduct in the presence of the court that interfered with a court proceeding and the administration of justice and impaired the respect due the court, he may be punished in the
By the Court. — Order affirmed.
Section 785.01, STATS., provides:
Definitions. In this chapter:
(1) "Contempt of court" means intentional:
(a) Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court....
Section 785.03(2), STATS., provides:
(2) Summary procedure. The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.
There is no claim that because the drinking occurred in a barroom instead of a courtroom that the misconduct was not in the actual presence of the court. We conclude that the unavoidable consequences of excessive drinking transpired in the courtroom, and therefore the misconduct was in the actual presence of the court.
Chapter 785, Stats., was created by ch. 257, Laws of 1979. The Judicial Council Notes include this comment:
The prior statute, s.757.03 (1977), contained the words "wilful and intentional" in the definition of the types of conduct defined .... Only the word "intentional" is used here because the council believes that although the conduct must be intentional to constitute contempt, the higher standard of "wilful" is inappropriate-It is not the purpose of the council to change the law of contempt as it relates to intent or the defenses available to a contempt charge.
The question may arise as to whether a person can be guilty of intentional misconduct at the same time that he cannot enter a knowing plea. The answer is twofold. First, Shepard's requisite intent to voluntarily drink to excess occurred prior to intoxication. Second, the circuit court need not and did not find as a fact that Shepard lacked the capacity to knowingly enter a plea. Rather, the court reluctantly recognized the potential for Shepard to later seek withdrawal of his plea on that grounds.
The Judicial Council Note to § 785.01(1), STATS., referring to misconduct includes this comment:
(1) The definition of contempt of court is intended to be broad and general. Wisconsin statutes formerly included a lengthy list of acts which were included in the definition of criminal contempt (s. 256.03 (1975)). This list was shortened by chapter 401, laws of 1975 (s. 757.03 (1977)). The intention of this new section is not to exclude any acts which were previously defined as contempt of court, but to make it more inclusive by being less specific and less wordy.
The Court was addressing Fed. R. Crim. P. 42(a), which permitted summary criminal contempt punishment "if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." United States v. Wilson, 421 U.S. 309, 310 n.1 (1975).
Reference
- Full Case Name
- In the Matter of the Findings of Contempt in State v. Kevin L. Shepard: Kevin L. Shepard v. Circuit Court for Outagamie County, the Honorable Dennis C. Luebke, Presiding
- Cited By
- 5 cases
- Status
- Published