Opinion
No. 38A04-1008-CR-478
09-01-2011
THOMAS SMITH, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : DALE W. ARNETT Winchester, Indiana ATTORNEY FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
DALE W. ARNETT
Winchester, Indiana
ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE JAY CIRCUIT COURT
The Honorable Brian D. Hutchison, Judge
Cause Nos. 38C01-0809-MR-3, 38C01-1007-MI-16
OPINION ON REHEARING-NOT FOR PUBLICATION
BRADFORD , Judge
Appellant-Defendant Thomas Smith was convicted of murder and sentenced to sixty years in the Department of Correction. He was subsequently found in contempt of court for failing to testify after being granted use immunity, and he was sentenced to serve an additional year in the Jay County Security Center. Smith appealed his one-year contempt sentence on Indiana Appellate Rule 7(B) grounds only. This court affirmed the sentence.
Smith filed a petition for rehearing, claiming that his one-year sentence for contempt is unconstitutional because he was never offered a jury trial. Smith acknowledges that he did not raise this issue in his direct appeal but claims that this court addresses constitutionally infirm sentences sua sponte. See Easton v. State, 258 Ind. 204, 211, 280 N.E.2d 307, 311 (1972). The State, who Smith contends recently informed him of this sentencing problem, did not respond to his petition.
In Holly v. State, 681 N.E.2d 1176, 1177-78 (Ind. Ct. App. 1997), this court held that any sentence in excess of six months required a jury trial or a waiver thereof. The Holly court, which reversed a one-year contempt sentence, remanded for resentencing for a term not to exceed six months. Id. at 1178. In doing so, the Holly court acknowledged the propriety of the contempt finding. Id.
Here, too, the contempt finding was justified, given Smith's refusal to testify. The sentence, however, was unconstitutionally lengthy without a jury trial or waiver, neither of which occurred. Accordingly, we grant the petition for rehearing, vacate that part of our earlier decision affirming Smith's one-year sentence for contempt, and remand to the trial court to resentence Smith to a term not to exceed six months. In all other respects, we affirm our original decision.
BAKER, J., and MAY, J., concur.