Altice, J.
Bobby Wine appeals the denial of his petition for post-conviction relief, arguing that both trial and appellate counsel were ineffective for not objecting to the aggregate 720-day sentence that was imposed on four counts of criminal contempt. The State presents an issue of first impression on cross-appeal, claiming that this cause must be dismissed for lack of subject matter jurisdiction because the post-conviction rules do not apply to criminal contempt adjudications. We affirm.
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Before proceeding to the merits of Wine’s claims, we first address the State’s contention on cross-appeal that we are required to dismiss this cause for lack of subject matter jurisdiction because the post-conviction rules do not apply to criminal contempt adjudications. The State asserts that because contempt is not a statutorily-defined criminal offense, Wine may not seek a remedy by way of post-conviction relief.
Our post-conviction relief rules provide that “(a) [a]ny person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims: (3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous . . . may institute at any time a proceeding under this Rule to secure relief.” Ind. Post-Conviction Rule 1(1)(a) (emphasis added). We note that any act that manifests a disrespect and defiance of a court may constitute direct criminal contempt. Hopping v. State, 637 N.E.2d 1294, 1297 (Ind. 1994); Mockbee, 80 N.E.3d at 920. Direct criminal contempt citations are available where “the court has firsthand and immediate knowledge of acts demonstrating a clear disregard for its authority which threaten to undermine the integrity of the judicial process and impede the performance of court work.” Mockbee, 80 N.E.3d at 920 (quoting Hopping, 637 N.E.2d at 1297). The power of Indiana courts to summarily punish for direct criminal contempt, while specified by statute, rests upon the common law. It is inherent in the courts. Hopping, 637 N.E.2d at 1296.
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In addition to the above, I.C. § 34-47-2-5(a) provides that if a “defendant is found guilty of direct contempt . . . the defendant has the right to appeal the judgment of the court.” (Emphasis added). And pursuant to I.C. §34-47-2-5(e), a defendant has the right to move the trial court to reconsider its opinion on the finding of contempt and if that motion is overruled, “the defendant may appeal as in other criminal actions.” (Emphasis added).
Finally, we observe that unlike adjudications for criminal contempt, a finding of civil contempt can be collaterally attacked by a motion for relief of judgment pursuant to Indiana Trial Rule 60(B). See Bello v. Bello, 102 N.E.3d 891, 895 (Ind. Ct. App. 2018). Because the consequences of criminal contempt are punitive in nature, those actions may not be collaterally attacked under the trial rules because those rules apply only to “suits of a civil nature[.]” Ind. Trial Rule 1. Thus, a petition for post-conviction relief is a criminal contemnor’s only opportunity to collaterally challenge such an adjudication. See Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998) (recognizing that a post-conviction proceeding is the “preferred forum” in which to raise a claim of ineffective assistance of trial counsel, and the only forum in which to raise a claim of ineffective assistance of appellate counsel). For all the reasons above, we decline to dismiss Wine’s appeal.
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Wine’s argument regarding the ineffective assistance of appellate counsel fails for the same reason that Wine’s assertion of ineffective assistance of trial counsel fails. The entirety of Wine’s claim, citing Codispoti, rests on the assertion that his contempt of court did not involve multiple, separate examples of contempt and therefore, the aggregate sentence could not exceed 180 days because he did not waive his right to a jury trial. See Appellant’s Brief at 12, 18. The circumstances here involved multiple instances of contempt and not one single act, thus removing the sentencing limits or proscriptions described by Codispoti and Mockbee. Moreover, Wine acknowledges that Mockbee had not yet been decided at the time of his direct appeal. Appellate counsel cannot be ineffective for not arguing case law that does not yet exist. See Timberlake, 753 N.E.2d at 605. For these reasons, Wine’s claim that his appellate counsel was ineffective fails.
Judgment affirmed.
Tavitas, J., concurs.
May, J., concurs in result with separate opinion
May, J., concurring in result.
I respectfully concur in result but write separately to address the State’s argument that Wine’s appeal should be dismissed and to emphasize the importance that the procedural posture of the case played in determining my vote.
I agree with Judge Altice that Wine’s appeal should not be dismissed. In T.T. v. State, we held criminal contempt did not constitute a criminal offense if committed by an adult, and therefore the trial court erred in adjudicating T.T. delinquent and committing her to the Indiana Department of Correction under the portion of the delinquency statute that required finding the juvenile committed an act that would be a criminal offense if committed by an adult. 439 N.E.2d 655, 657 (Ind. Ct. App. 1982). The State contends, based on T.T., that if criminal contempt does not constitute a criminal offense, then a person may not collaterally attack a criminal contempt finding via a petition for postconviction relief because the Indiana Post-Conviction Rules apply only to persons convicted of or sentenced for a crime. I believe the State’s argument construes our holding in T.T. too broadly.
As Judge Altice notes, criminal contempt is meant to be punitive. Slip op. at *8. A person charged with contempt is entitled to certain constitutional safeguards because of the potential penalties, including loss of liberty. Id. at *8-*9. Given that a post-conviction proceeding is the “preferred forum” for deciding claims of ineffective assistance of counsel, I agree with Judge Altice that we should allow a person found in criminal contempt to collaterally challenge the contempt finding by filing a petition for postconviction relief. Id. at *10 (quoting Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998)).
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I vote to affirm the denial of Wine’s petition for postconviction relief because there was not any Indiana case law available at the time of Wine’s trial or his direct appeal to indicate Wine was entitled to a jury trial before the court imposed sentences for contempt which totaled over 180-days. I recognize Justice Marshall advocated for such a result in Codispoti. Nonetheless, I will not vote to hold that Wine’s attorneys were ineffective for failing to advance such an argument.