T. T. v. State

SHIELDS, Judge. On March 23, 1981 T. T. was adjudicated a delinquent child based upon the alleged delinquent act of criminal contempt for disobeying a court order to attend school. She was then awarded to the guardianship of the Department of Correction until age twenty unless released sooner and was ordered detained pending transfer. On June 8, 1981 she filed a petition for post conviction relief alleging her commitment was contrary to law and that she did not knowingly and voluntarily waive her right to counsel. T. T. appeals the denial of her petition and raises four issues: 1) whether a juvenile may be adjudicated delinquent for criminal contempt; 2) whether the juvenile court abused its discretion in committing T. T. to the Department of Correction; 3) whether a commitment imposed as a result of an adjudication of delinquency for criminal contempt may exceed three months; and 4) whether T. T. knowingly and voluntarily waived her right to counsel. We reverse. As we find the first issue constitutes reversible error, we need not reach the other issues. Cowan v. Murphy, (1975) 165 Ind.App. 566, 333 N.E.2d 802. The Indiana juvenile code enumerates five so-called status offenses1 as delinquent acts in addition to committing an act that would be an offense if committed by an adult. I.C. 31-6-4-1(a) (Burns Code Ed., Repl.1980). It then defines a delinquent child as one who (1) commits an act that would be an offense if committed by an adult or (2) commits any of the status offense delinquent acts and also is in need of care, treatment or rehabilitation. I.C. 31-6-4-l(b). The distinction between the two classifications of delinquent children is important because the code further prohibits awarding wardship of juveniles to the Department of Correction as a disposition unless they have been adjudicated delinquent for committing an act that would be an offense if committed by an adult. I.C. 31-6-4-16(g)(3). Therefore, T. T.’s wardship is contrary to law unless criminal contempt is an act which would be an offense if committed by an adult. It is not. T. T. was charged with criminal contempt. Criminal contempt is any act “which manifests a disrespect for and defiance of a court. The willful and intentional disobedience of the orders of these Courts can constitute indirect criminal contempt.” Matter of Lemond, (1980) Ind., 413 N.E.2d 228, 231. Although in Indiana its use by [657] trial courts is governed by statute, I.C. 34-4-7-1 et seq. (Burns Code Ed.), it nevertheless is not an offense. In Niemeyer et al. v. McCarty et al., (1943) 221 Ind. 688, 51 N.E.2d 365, the issue was whether a contempt of court could be used to impeach a witness when, by statute, only convictions of crimes could be used for that purpose. In affirming the trial court’s actions on the issue, the Supreme Court stated: “In this state all crimes are statutory, and all who are accused of a crime are entitled to a trial by jury, and there can be no conviction of crime except by a jury unless a jury was waived. Contempt of court is not a crime, although the same act may be a crime and may also be a contempt of court. Id., 221 Ind. at 692, 51 N.E.2d at 367.” As defined by I.C. 35-41-1-2 (Burns Code Ed., Repl.1979), the category “offense” is broader than the category “crime.” However, it has been broadened only to include infractions and violations of ordinances. Under Niemeyer contempt is not a crime. Neither is it an infraction or a violation of an ordinance. Therefore, it is not an offense. Consequently, we hold criminal contempt is not an act for which a juvenile can be adjudicated a delinquent child under I.C. 31-6-4-l(b)(l). This is not to say that a trial court faced with a juvenile who willfully disobeys a lawful court order may be without a remedy.2 For example, I.C. 31-6-7-15 (Burns Code Ed., Repl.1980) provides: “The juvenile court may punish a person for contempt of court under I.C. 34-4-7[34-4-7-l—34-4-7-10], I.C. 34-4-8[34-4-8-1, 34-4-8-2] or I.C. 34-4-9[34-4-9-l -34-4-9-3].” However, that statutory procedure is unavailing in this case because it was not used.3 Furthermore, by the terms of I.C. 34-4r-7-6 (Burns Code Ed.) imprisonment as punishment for contempt of court cannot exceed three (3) months. Judgment reversed and cause remanded for further proceedings consistent herewith. SULLIVAN, J., concurs. BUCHANAN, C. J., concurs in result, with separate opinion. Footnotes [1] Under I.C. 31-6-4-l(a) (Burns Code Ed., Repl.1980) a status offender is one who “(2) Leaves home without reasonable cause and without permission of his parent, guardian, or custodian who requests his return; (3)Violates the compulsory school attendance law (IC 20-8.1-3[20-8.1-3—20-8.1-3-37]); (4) Habitually disobeys the reasonable and lawful commands of his parent, guardian, or custodian; (5) Commits a curfew violation; or (6) Violates IC 7.1-5-7[7.1-5-7-l—7.1-5-7-14].” [2] Contra W.M. v. State, (filed July 27, 1982) Ind.App., 437 N.E.2d 1028, 2-1281 A 416. [3] In addition, the trial court’s exercise of its inherent power to punish for contempt is not in issue.