Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2705.01 -- Summary punishment for contempt (direct contempt).
R.C. 2705.02 -- Acts in contempt of court (indirect contempt).
R.C. 2705.03 -- Hearing.
R.C. 2705.031 -- Contempt action for failure to pay support or comply with visitation order.
R.C. 2705.04 -- Right of accused to bail.
R.C. 2705.05 -- Trial.
R.C. 2705.06 -- Imprisonment until order obeyed.
R.C. 2705.08 -- Release of prisoner committed for contempt.
R.C. 2705.10 -- Judgment final.


Note: Contempts are classified as either civil or criminal and direct or indirect. The categories do not completely overlap. Consequently, the powers of the court and the rights of the person of the person cited in contempt turn on first determining what sort of contempt is involved - direct/criminal, indirect/criminal, etc.
Turner v. Rogers (2011), 131 S.Ct. 2507 – (1) For the most part there is no right to appointed counsel in child support contempt proceedings. But the absence of alternative procedures, such as assessment of the ability to pay, meant denial of counsel in this case was a denial of due process. Appointed counsel might also be required when support payments owed will go to the state to reimburse welfare payments. (2) A case remains alive when the challenged action is of such brief duration that it may not be fully litigated before its expiration. Sentence for child support contempt had been served by the time the case was addressed by the Supreme Court.
Hansen v. Hansen (1999), 132 Ohio App. 3d 795 -- Absent a rule, statute, or settled practice permitting service upon counsel of notice of indirect civil contempt proceedings, due process requires an effort to directly serve the party.
In re Lane, Washington App. No. 03CA35, 2004-Ohio-412, ¶ 9 -- "...(E)ven if abundant and uncontroverted evidence establishes that a person disobeyed the court's order, a trial court is not required to enter a contempt finding. Rather, the matter is entrusted to the trial court's own discretion."
State v. Timson (1974), 38 Ohio St. 2d 122, 128 -- "While contempt may be an offense against the law and subject to appropriate punishment certain it is that since the foundation of our government, proceedings to punish such offenses have been regarded as sui generis and not criminal prosecutions within the meaning of the Sixth Amendment to the United States Constitution, or common understanding. Sui generis, translated, means: of its own kind; peculiar to itself." Also see Cincinnati v. Cincinnati District Council 51 (1973), 35 Ohio St. 2d 197, 201-202.
Brown v. Executive 200, Inc. (1980), 64 Ohio St. 2d 250 -- Syllabus: "The standard of proof required in a criminal contempt proceeding is proof beyond a reasonable doubt." At pp. 253-254: "...(C)ourts distinguish criminal and civil contempt not on the basis of punishment, but rather by the character and purpose of the punishment...Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his own pocket...since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence. Such imprisonment operates nor as a remedy coercive in its nature but as punishment for the completed act of disobedience, and to vindicate the authority of the court." Also see Hicks, on Behalf of Feiock, v. Feiock (1988), 485 U.S. 721; State v. Kilbane (1980), 61 Ohio St. 2d 201.
ConTex, Inc., v. Consolidated Technologies, Inc. (1988), 40 Ohio App. 3d 94 -- A finding of civil contempt may be made on clear and convincing evidence.
Midland Steel Products Co. v. U.A.W. Local 486 (1991), 61 Ohio St. 3d 121 -- Paragraph two of the syllabus: "In cases of criminal, indirect contempt, it must be shown that the alleged contemnor intended to defy the court."
Cleveland v. Ramsey (1988), 56 Ohio App. 3d 108 -- Failure to obey a subpoena is indirect contempt. Where the intent is to punish the witness for her failure to appear, it is a criminal contempt. Intent is an essential element of indirect criminal contempt (to be proven beyond a reasonable doubt). Untimely appearance, after an unreturned call to the prosecutor's office to see if the witness was still needed, does not establish an intentional failure to appear.
Pugh v. Pugh (1984), 15 Ohio St. 3d 136 -- An intent to violate an order of the court need not be proven in civil contempt proceedings. Also see Pedone v. Pedone (1983), 11 Ohio App. 3d 164; Johnson v. Johnson (1991), 71 Ohio App. 3d 713.
In re Carroll (1985), 28 Ohio App. 3d 6 -- Disobedience of a rule of court, not in the immediate presence of the court, and which could not be purged by subsequent compliance, was an indirect criminal contempt, requiring proof of intent.
Courtney v. Courtney (1984), 16 Ohio App. 3d 329 -- (1) Due process requires that one charged with contempt be advised of the charges against him, have a reasonable opportunity to answer those charges by way of defense or explanation, have the right to be represented by counsel and have the chance to both testify and call witnesses. See In re Oliver (1948), 333 U.S. 257, 275; In re Green (1962), 369 U.S. 689, 691-692; Culberson v. Culberson (1978), 60 Ohio App. 2d 304, 306.
Adams v. Epperly (1985), 27 Ohio App. 3d 51 -- Person cited for indirect criminal contempt for violation of domestic relations court order may not be tried and sentenced in absentia.
Olmstead Twp. v. Riolo (1988), 49 Ohio App. 3d 114 -- Impossibility of compliance is a defense to contempt. Also see Courtney v. Courtney (1984), 16 Ohio App. 3d 329, 334.
Tucker v. Tucker (1983), 10 Ohio App. 3d 251 -- Sanction for civil contempt must include an opportunity for contemnor to purge himself of contempt.
Burchett v. Miller (1997), 123 Ohio App. 3d 550 -- Civil contempt must allow the contemnor the opportunity to purge himself or herself of contempt, and a court abuses its discretion imposing conditions that are unreasonable or make compliance impossible. Seek work order in support proceedings was impossible where contemnor was under house arrest on pending criminal charges.
State v. Kilbane (1980), 61 Ohio St. 2d 201 -- As to sentence for direct contempt given witness who refused to testify, the court was required to impose a determinate sentence, but could add conditions allowing for an earlier termination of the sentence.
Oakwood v. Wuliger (1982), 69 Ohio St. 2d 452 -- By statute, contempt power of a Mayor's Court is limited to acts committed in the presence of the court and does not reach indirect contempts such as failure to appear for a hearing.
State v. Johnson (1987), 34 Ohio App. 3d 373 -- Authority of referee to have someone arrested for contempt depends on terms of order of reference. It this includes the power to regulate all proceedings as if they were before a judge, referee may do so.

Availability as a Sanction for Particular Conduct

State v. Daugherty, 165 Ohio App. 3d 115, 2006-Ohio-240 -- Before the expiration of one year of probation, defendant was jailed for contempt for failure to perform any of the hours of community service ordered.  While the proceedings may have satisfied the requirements for probation revocation, failure to perform community service would be indirect contempt.  The court did not properly charge him with indirect contempt and the proceedings resembled those punishing direct contempt.
State v. Nelson, Lorain App. No. 03CA008242, 2003-Ohio-3922 -- Charges were dropped but defendant was ordered to pay costs, and wrote "this is bullshit" on the check. Direct criminal contempt finding reversed. Disrespectful language did not immediately imperil the wheels of justice.
State v. Perkins, 154 Ohio App. 3d 631, 2003-Ohio-5092 -- Off camera following a video arraignment defendant was heard to say "that's bullshit" in response to the bond that had been set. This was properly punished as direct criminal contempt.
State v. Flinn (1982), 7 Ohio App. 3d 294 -- Defendant properly held in contempt for refusal, in open court, to furnish handwriting exemplar. Also see Hawk v. Superior Court (1974), 116 Cal. Rptr. 713, 718, cert. denied, 421 U.S. 1012.
Cramer v. Petrie (1994), 70 Ohio St. 3d 131 -- Syllabus: "An obligation to pay child support is not a "debt" within the meaning of that term in Section 15, Article I of the Ohio Constitution. Because this obligation does not fall within the scope of Section 15, Article I, an order to pay child support may be enforced by means of imprisonment through contempt proceedings even after the child who is the subject of the order is emancipated."
In re Buffington (1993), 89 Ohio App. 3d 814 -- Contempt proceedings may not be used to enforce payment of court costs.
State v. Burke (1993), 91 Ohio App. 3d 514 -- Court could use contempt proceeding to collect unpaid balance on fine.
Cleveland v. Anderson (1992), 82 Ohio App. 3d 63 -- Abortion protestors refused to pay fine upon conviction for disorderly conduct and asked to be sent to the workhouse. Instead, judge proposed to place them on probation and order them to perform eighty hours of community service. Upon refusal either to pay the fine or do the community service, the judge found the defendants in contempt. Conduct held not to be subject to punishment as contempt as was not motivated by improper or illegitimate purpose. The defendants had a statutory right to refuse to perform community service and by statute were required to work off the fine at thirty dollars per day if they refused to pay and were not indigent.
Burt v. Dodge (1992), 65 Ohio St. 3d 34 -- Judge may use contempt to punish violation of a gag order, even though acts in question may have taken place outside of Ohio.

Relationship to Other Sanctions or Proceedings

State v. Palmer, Montgomery App. No. 19221, 2004-Ohio-779 -- Whether or not a sentence for contempt creates a jeopardy bar to criminal prosecution turns on whether it was civil or criminal in nature.  Defendant served one day of ten attached to a prior purge order, and was placed under a new purge order. Since he "held the keys to the jailhouse" under the previous order, and was punished for inaction, that penalty was civil in nature.  Thus nonsupport prosecution may go forward.
State v. Smith, Mahoning App. No. 01 CA 187, 2002-Ohio-6710 -- Municipal court treated failure to comply with terms of probation as contempt rather than a violation of probation. The proper action would have been a motion to terminate probation. Even if contempt proceedings were appropriate, due process notice and procedural requirements for indirect contempt of court are comparable to those for probation revocation.
United States v. Dixon (1993), 113 S. Ct. 2849 -- Double jeopardy bars prosecution for criminal acts already punished as criminal contempt if, applying the same elements test of Blockburger v. United States (1932), 284 U.S. 299, proof of the contempt incorporated the elements of the alleged crime. Defendants were found in contempt for violation of term of release that they not commit a criminal offense in one case or commit or threaten an interfamily offense in the other.
State v. Bowling (1987), 36 Ohio App. 3d 74 -- Defendant punched an assistant prosecutor and bit a bailiff, for which he was found in contempt and sentenced to two years in jail. The Double Jeopardy Clause does not bar subsequent prosecution for assault and felonious assault based on same conduct. Also see State v. Kimbler (1986), 31 Ohio App. 3d 147.
Johnson v. Perini (1986), 33 Ohio App. 3d 127 -- State court was without authority to hear contempt proceedings based on an order of the federal district court.

Use Against Attorneys

State v. Jones, Portage App. No. 2008-P-0018, 2008-Ohio-6994 – Attorney appointed to a misdemeanor case the day before trial was unsuccessfully in obtaining a continuance, refused to participate in the trial for fear he would provide ineffective assistance, and was found in contempt. (1) Appellate court feels unable to address recusal claim as that matter was solely within the jurisdiction of the Common Pleas Court. See dissent. (2) Trial court erred in finding the attorney in contempt for refusing to participate in the trial. In re Sherlock (1987), 37 Ohio App. 3d 204, followed. (3) The proper remedy for the situation was not, as suggested, to proceed to trial, then raise ineffective assistance on appeal. It would be unfair to address an issue, which could have been avoided, on the basis that the outcome of the trial would likely have been different.
In re Contempt of Warner, Cuyahoga App. No. 83183, 2004-Ohio-2389 -- Trial counsel summarily found in contempt based on characterizing the offenses as being the most serious in the state short of the death penalty, and the state's hope that at least one of 22 counts would stick.  Neither was a direct reference to the penalty.  Record indicates no knowing or wilful defiance of the court's instructions.
State v. Belcastro (2000), 139 Ohio App. 3d 498 -- Attorney was found in direct contempt because he did not return to the courthouse in a timely manner after the jury returned a verdict. Reversed. Summary punishment for direct contempt lies when the facts are within the direct knowledge of the court. Since the attorney was out to lunch, the contempt necessarily did not occur in the presence of the court. Attorney is entitled to the procedural protections set forth in R.C. 2705.03, but opinion implies he may readily be found in contempt.
State ex rel. Bradley v. Stralaka (1999), 134 Ohio App. 3d 256 -- At arraignment defendant said Bradley was his attorney. When the attorney received notice of trial date he wrote to judge stating this was not the case. Judge appointed the lawyer. Lawyer again wrote to say under no circumstances would he represent defendant. Judge initiated contempt proceedings. Lawyer sought writ of prohibition, which was granted. (1) Because lawyer never made an appearance on defendant's behalf, court lacked jurisdiction over lawyer for purposes of contempt proceedings. Prior representation in a different court on an unrelated matter, from which counsel had been allowed to withdraw did not make him counsel. (2) State ex rel. Mancino v. Campbell (1993), 66 Ohio St. 3d 217 distinguished on the basis that the lawyer there had made an appearance on defendant's behalf.
State v. Mulligan, Montgomery App. No. C.A. 19359, 2003-Ohio-782 -- Double booking trials in state and federal court without adequate advance notice to the common pleas court judge provided an adequate basis for finding an attorney in contempt. Mistaken belief that the federal case would settle does not excuse failure to notify court in a more timely manner. However, the judge's manner of proceeding as both prosecutor and judge at the contempt hearing denied the attorney due process, namely the right to an impartial and unbiased judge. While it is not always necessary that another judge decide the merits, private complaints before the hearing, and statements as it proceeded, indicated that the judge had become so embroiled that his perspective was affected. This included reflexively denying a motion for a stay of the sanction, which included jail time, and telling the lawyer he hoped he would look good in an orange jumpsuit.
State v. Wilson (1972), 30 Ohio St. 2d 312, 314-315 -- "The integrity of the judicial process demands total deference to the court, particularly on the part of its officers...If a judge behaves contumeliously, reprehensible as it may be, such conduct should be made a part of the record, but cannot be corrected by counsel in the courtroom. There are other remedies for transgressions of judicial decorum..." Compare Sandstrom v. Butterworth (11th Cir. 1984), 738 F. 2d 1200. On the issue whether an attorney may be found in contempt in proceedings where the court is proceeding without jurisdiction, see Bedford v. Lacey (1985), 30 Ohio App. 3d 1.
State v. Weiner (1974), 37 Ohio St. 2d 13 -- (1) Where the contempt has not taken the form of personal insult or vilification of the judge, the judge citing an attorney in contempt may preside at the hearing on the citation. [Also see Ungar v. Sarafite (1964), 376 U.S. 575.] (2) Since contempt is a petty offense within the meaning of the constitution, there is no right to jury trial. (3) Attorney properly found in contempt for failure to directly inform the court of his desire to withdraw from a case, where he had been retained and trial was imminent.
Springfield v. Myers (1988), 43 Ohio App. 3d 21 -- Due process violated where attorney has been summoned to the courtroom, after referring to the judge as a nitwit on a radio call-in show, in the hope he would commit a contumacious act.
State, ex rel Seventh Urban Inc., v. McFaul (1983), 5 Ohio St. 3d 120 -- Attorney properly found in direct contempt where he punched an opposing party while waiting for a hearing to begin in the courtroom of the court of appeals. "Syllabus: Striking someone who is in a courtroom on court business, the act occurring in the presence of the court's bailiff, marshall, constable or court reporter, is a direct contempt in the constructive presence of the court and may be punished as such."
Cleveland v. Heben (1991), 74 Ohio App. 3d 568 -- Finding of direct criminal contempt affirmed where after protracted claims of illness which were not accepted by the court, attorney left the courtroom for the bathroom and was ordered brought back by bailiffs. Court concludes attorney's conduct were done in the presence of the court so as to obstruct the administration of justice.
Garfield Heights v. Wolpert (1997), 122 Ohio App. 3d 287 -- Attorney made repeated calls seeking modification of a misdemeanor sentence. (1) No prejudice when court allowed attorney's counsel to withdraw without a hearing. (2) At p. 293: "...(W)e know of no rule of practice within our adversary system which authorizes any attorney to make repeated ex parte telephone calls to the tribunal before which he or she is practicing after being commanded not to do so by the tribunal."
State ex rel Mancino v. Campbell (1993), 66 Ohio St. 3d 217 -- Attorney's appearance on behalf of a client at the preliminary hearing stage in a municipal court meant that upon bindover he remained counsel in common pleas court, subject to the contempt powers of that court upon his refusal to appear for a hearing.
In re Purola (1991), 73 Ohio App. 3d 306 -- Failure to appear as ordered for a pretrial was indirect criminal contempt. Essentially neither the trial nor appellate court is sympathetic to distant and busy counsel's protestations that appearance at pretrial conference was an imposition.
In re Davis (1991), 77 Ohio App. 3d 257 -- Attorney was summarily found in contempt after he failed to appear in court on the date a trial was scheduled. Reversed: the court was obligated to conduct an evidentiary hearing before punishing contempt.
Catholic Social Services v. Howard (1995), 106 Ohio App. 3d 615 -- Attorney was summarily found in contempt, fined and sentenced to thirty days in jail after being seen in hallway near courtroom of judge who had previously ordered he not appear in or near the courtroom. It is beyond the court's jurisdiction to in effect bar a particular attorney from appearing before it.
Shaker Heights v. Heffernan (1989), 48 Ohio App. 3d 307 -- Attorney found in contempt after it was discovered he had appeared in court with a person he knew not to be the person named in a traffic citation. Because fraud was involved, contempt could be prosecuted within one year of discovery. Also see United States v. Thoreen (9th Cir. 1981), 653 F. 2d 1332.
State v. McDermott (1995), 72 Ohio St. 3d 570 -- Attorney could not be held in contempt for refusal to reveal matters he believed were protected by the attorney-client privilege, absent express waiver of the privilege by the client, or the client voluntarily testifying on the same subject.
In re Jones (1998), 132 Ohio App. 3d 173 -- Defense counsel obtained a copy of a 911 tape, but prosecutor failed to do so before the tapes were routinely destroyed. Defense counsel refused to turn tape over upon request in discovery, and was found in contempt. Since she did not intend to use tape, she was not required to turn it over. Contempt finding reversed. Question remains whether tape could have been obtained through subpoena.
In re Contempt of Rossman (1992), 82 Ohio App. 3d 730 -- Reasonable doubt found to exist in direct contempt case where counsel's remarks were construed as an effort to preserve the record.
In re Sherlock (1987), 37 Ohio App. 3d 204, 525 N.E. 2d 512 -- Defense counsel improperly held in contempt for refusing to participate in trial after motion for continuance had been overruled. To do so would have deprived client of effective assistance of counsel and would have been contrary to the Code of Professional Responsibility.
State v. Christon (1990), 68 Ohio App. 3d 471 -- Defense counsel properly held in contempt for refusing to participate in trial after continuance request had correctly been refused and counsel were not adequately prepared due to their own inaction.
Pounders v. Watson (1997), 521 U.S. 982 -- Court finds no due process violation in summarily finding attorney in contempt for asking a question on a subject held off limits when referred to by other attorneys involved in the case.
In re Gonzalez (1990), 70 Ohio App. 3d 752 -- Attorney was found in contempt for several acts during trial, including improper questioning, for which he was admonished, and on one occasion told he was in contempt. Despite rather summary disposition of the contempt, characterized as direct criminal contempt, court concludes it to have been proven beyond a reasonable doubt and that summary punishment was in order. Also see Scherer v. Scherer (1991), 72 Ohio Ops. 211 -- Old enemies represented opposing parties in a hearing before a domestic referee which had to be terminated when matters got out of hand.
In re Contempt of Morris (1996), 110 Ohio App. 3d 475 -- (1) Objections by defense counsel to assertions beyond the proper scope of a victim impact statement were an effort to preserve the record and were not punishable as contempt. (2) Appeal was not moot as contemnor was not given option of delaying payment of fine.
In re McGinty (1986), 30 Ohio App. 3d 219 -- Assistant prosecutor properly found in direct criminal contempt where judge overheard him barge in on defense counsel's private interview of a witness in conference room adjacent to the courtroom, interfering with that interview, and attempting to both intimidate the witness and prejudice him against the defense.
State v. Khong (1985), 29 Ohio App. 3d 19 -- (1) A prosecutor may be found in contempt for failure to comply with a discovery order. (2) While a defendant in criminal contempt proceedings has a constitutional right to a speedy trial, the speedy trial statutes do not apply.
State v. Sandlin (1983), 11 Ohio App. 3d 84 -- Prosecutor's refusal to provide photo of victim, resulting in jail sentence with opportunity to purge by furnishing photo, was a direct, civil contempt. Opinion suggests court was within its powers in doing so, though fact no such photo was in the possession of the prosecutor made the contempt finding improper.
State v. Schiewe (1996), 110 Ohio App. 3d 170 -- Elected county prosecutor was held in direct, criminal contempt by trial judge who believed he was presenting repetitive, cumulative testimony. Reversed. Upon review, appellate court may not assume in the absence of a record that the action of the lower court was correct. Here there was no contempt as the prosecutor's actions were not disrespectful, and he was placed in the untenable position of not offering what he thought was necessary evidence if he was to comply with the court's wishes. Opinion cites numerous cases where actions of defense counsel were similarly judged.
In re Contempt of Lusnia (1997), 121 Ohio App. 3d 184 -- Prosecutors were found in contempt by juvenile court judge after they borrowed a tape of a prior hearing in a closed case, had it transcribed, then used the transcript to support a motion to have the Supreme Court disqualify the judge from presiding in a pending bindover case. Reversed.
State v. Widner (1981), 68 Ohio St. 2d 188 -- Syllabus: "A trial judge properly exercises his discretion in ordering a mistrial sua sponte, when: (1) the defendant and all his lawyers have been found in contempt of court and removed from the courtroom; (2) the defendant himself requests a trial before another judge; and (3) a codefendant's trial would be immeasurably delayed by the granting of a continuance. The defense of former jeopardy will not then bar a second trial before a different judge. (United States v. Dinitz, 424 U.S. 600, followed and applied.)

Appropriateness of Procedure or Finding

Disciplinary Counsel v. Karto, 94 Ohio St. 3d 109, 2002-Ohio-61 -- Six month suspension of common pleas judge rest in part on two improper uses of contempt power: (1) During hearing judge took off his robe, testified, made a closing argument, resumed the bench and found a county employee in contempt, but never imposed a sentence, which would have permitted an appeal. (2) Judge claimed that outside the courthouse the girlfriend of probation violator pointed her finger at him and made a popping sound. She was found in contempt and given a suspended sentence, without the filing of formal charges or being advised of her right to counsel. Also see Disciplinary Counsel v. Hoague 88 Ohio St. 3d 321, 2000-Ohio-340.
In re Thomas, Hamilton App. No. C-030429, 2004-Ohio-373 -- Potential juror who was excused claiming her child had a medical appointment later was found guilty of direct criminal contempt on the basis she lied. Reversed. Contempt was indirect as it required proof of facts, not known to the judge, but relayed by a third party. Since the trial was not delayed, summary finding of contempt, without procedural safeguards, was improper.
State v. Drake (1991), 73 Ohio App. 3d 640 -- After judge said to the defendant "Your case is over son. You are an aggravated robber, a damn criminal" the defendant responded "fuck you." Held not punishable as direct contempt. (From the bench: "Fuck you too...Add six more months consecutive.")
State v. Conliff (1978), 61 Ohio App. 2d 185 -- It was error for the court to summarily punish the defendant for attempting to remind the judge of the need to pass sentence on a disorderly conduct charge by asking if he wanted his ounce of flesh. Displays of ill mannered conduct are not summarily punishable as direct contempt unless they pose an imminent threat to the administration of justice. (Defendant had been acquitted of assault after throwing a banana cream pie at former governor Rhodes.)
In re Parker (1995), 105 Ohio App. 3d 31 -- Judge filed an order directing contemnor not to come within 100 yards of his courtroom or home. Following a middle of the night incident at the judge's home, contemnor was summarily found in contempt, fined and ordered to serve a year in jail. Held that since the contempt was indirect, a hearing was required.
State v. Moody (1996), 116 Ohio App. 3d 176 -- Defendant was absent from the courthouse when the jury had a question because he had taken his brother to a medical appointment. Though he was found not guilty, he was summarily given six, then three, months for direct contempt. Held that failure to appear for a hearing occurs in the constructive, rather than immediate, presence of the court, thus being an indirect contempt, requiring written charges and the ability to defend.
State v. Kitchen (1998), 128 Ohio App. 3d 335 -- Defendant fired attorney within hearing of venire and in opening statement cast himself as the victim of an unfair process, though admonished not to. Following the declaration of a mistrial he was given thirty days for contempt. Held to be within the judge's discretion as a matter of direct criminal contempt.
State v. Castle (1994), 92 Ohio App. 3d 732 -- Criminal contempt convictions upheld where witnesses failed to appear on subpoena because they were on vacation. Prosecutor had been contacted but continuance had not been arranged. Case did not go to trial. Also see In re Meirhoff (1999), 99 Ohio Misc. 2d 17 (officer called courthouse before business hours to say he had other plans).
Garfield Heights v. Stefaniuk (1998), 127 Ohio App. 3d 293 -- Unrepresented college student was found in contempt after failing to perform community service he found inconvenient. Because this amounted to criminal contempt, court erred by failing to advise him of his right to counsel, including appointed counsel, and by not obtaining a valid waiver. Court notes split of authority as to right to appointed counsel in civil contempt proceedings.
Elias v. Stein (1997), 120 Ohio App. 3d 432 -- Party was an hour late to a pretrial because of family problems. Judge summarily found him in contempt, imposed a $250 fine and ordered him to pay an hour of opponent's attorney fees. Reversed. Indirect criminal contempt required proof beyond a reasonable doubt of an intent to violate the court's pretrial order.

Other Issues

Broadview Heights v. Baron (2000), 139 Ohio App. 3d 729, 748 -- Attorney count not appeal a contempt finding against him in the appeal from his client's conviction.
State v. Karasek, Montgomery App. Nos. 17408 and 17409, 2002-Ohio-2616 -- Woman arrested for civil contempt was frustrated by delay in being processed for release and kneed jail officer in the groin. Because civil contempt is not a crime or delinquent act under R.C. 2903.12(C)(2)(b), she was erroneously convicted of assault on a corrections officer. Assault conviction stands.
Schock v. Sheppard (1982), 7 Ohio App. 3d 45 -- A party facing contempt for non-payment of child support, if faced with imprisonment, has the right to appointed counsel if indigent. Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, applied. Compare Courtney v. Courtney (1984), 16 Ohio App. 3d 329; In re Calhoun (1976), 47 Ohio St. 2d 15.
Kaiser v. Hall (1970), 24 Ohio St. 2d 23 -- Grand jury witness was found in contempt and jailed for refusal to answer questions. Habeas action became moot upon his release. Also see Springfield v. Myers (1988), 43 Ohio App. 3d 21 -- moot when sentence had been completed. Compare State v. Roe (1971), 26 Ohio St. 2d 243 -- Mootness not an issue in appeal from contempt finding by police officers who refused to disclose name of informant in testimony before grand jury - presumably full penalty had not been exacted or mootness was not raised.
State ex rel. Frazer et al. (1996), 107 Ohio App. 3d 245 -- Believing a witness lied, a juvenile court judge found her in contempt and ordered a jaywalking defendant to remain under house arrest until disposition. Habeas corpus does not lie to challenge a contempt finding. Appeal is the proper remedy. House arrest found not to have exceeded the court's jurisdiction.
Denovchek v. Trumbull County Commissioners (19988), 36 Ohio St. 3d 14 -- Syllabus: "There is no right of appeal from the dismissal of a contempt motion when the party making the motion (to have another cited in contempt) is not prejudiced by the dismissal."
In re Miami County Grand Jury Directive to Creager (1992), 82 Ohio App. 3d 269 -- Person found in contempt for refusal to supply handwriting exemplar is entitled to appointment of counsel for purposes of appeal. Also see In re Grand Jury Directive to Creager (1993), 89 Ohio App. 3d 672 -- Defendant was properly found in contempt for refusal to provide handwriting exemplar. The privilege against self-incrimination under the Ohio Constitution is identical to that found in the Fifth Amendment.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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