People v. Covington

NO. 4-08-0930 Filed 10/22/09

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) DeWitt County
ARTHUR J. COVINGTON, ) No. 04DT42
Defendant-Appellant. )
) Honorable
) Chris E. Freese,
) Judge Presiding.
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In August 2008, the State petitioned the trial court to

adjudicate defendant, Arthur J. Covington, in indirect criminal

contempt of court for failing to comply with the court’s August

1, 2008, order requiring him to find full-time employment by

August 25, 2008. In November 2008, the court found defendant in

indirect criminal contempt of court, sentenced him to six months

in jail, and ordered him to pay $796.50 in jail-meal fees.

Defendant appeals, arguing (1) the trial court lacked

subject-matter jurisdiction to find he violated a condition of

the original December 2005 supervision order, (2) the court’s use

of improper contempt procedures violated his due-process rights,

and (3) if this court remands the case, it should be remanded to

a different judge. We vacate the trial court's order finding

defendant in indirect criminal contempt and remand for further

proceedings not inconsistent with this opinion.
 I. BACKGROUND

In June 2004, the State charged defendant by citation

with two counts of driving under the influence of alcohol (DUI)

(625 ILCS 5/11-501(a)(2) (West 2004)).

In November 2005, defendant pleaded guilty to count I

of DUI. On the State’s motion, the trial court dismissed count

II.

In December 2005, the trial court sentenced defendant

as follows:

"I am placing you on supervision for a

period of 24 months. You are to report twice

a month to the probation office, pay a

$25.00[-]per[-]month supervision fee, fined

$1,000.00, pay the $100.00 DUI equipment fee,

refrain from using or possessing alcohol,

cannabis, or controlled substances, undergo

random testing, not enter any establishment

that has as its primary source of income the

sale of alcohol, obtain an alcohol and drug

evaluation within 30 days of today’s date,

complete any recommended treatment within six

months, attend VIP, obey the statutory terms

and conditions of supervision."

The April 11, 2007, docket entry shows "FINE AND COSTS

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PAID IN FULL [AS OF] THIS DATE."

In June 2007, the State filed a petition to revoke

defendant’s supervision, alleging defendant violated supervision

by testing positive for cannabis on May 21, 2007, admitting

smoking cannabis on May 17, 2007, and failing to complete the DUI

evaluation within the first 30 days and the recommended 10-hour

DUI risk education classes within the first 6 months.

In August 2007, the State filed an amended petition to

revoke defendant’s supervision, alleging defendant again tested

positive for cannabis on August 15, 2007.

In October 2007, the trial court held a hearing on the

State’s petition and revoked defendant’s supervision.

In November 2007, the trial court entered a written

order unsuccessfully discharging defendant’s supervision, entered

a judgment of conviction, and sentenced defendant to 90 days in

jail. The court also ordered defendant to pay $398.25 in jail-

meal fees.

In March 2008, the trial court called the case for

hearing on defendant’s ability to pay the jail-meal fees. No

transcript of the proceeding is included in the record. However

the March 14, 2008, docket entry shows the following:

"[The People] appear by SA Jerry Johnson.

[Defendant] appears pro se. Cause called for

[hearing] on ability to pay. [Defendant]

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 states he is unemployed and on [motion] of

[the People] cause reset for further review

to April 25, 2008, at 10 a.m. [Defendant]

ordered to return said date with 20

completed/submitted job [applications]."

The parties agree the court ordered defendant to appear on April

25, 2008, with 20 completed and submitted job applications.

On April 25, 2008, defendant appeared pro se and

informed the trial court he was unemployed. However, defendant

failed to present any job applications to the court.

In May 2008, the State filed "A Petition For Rule To

Show Cause Indirect Civil Contempt," alleging defendant willfully

and contumaciously violated an order of the trial court by

failing to return to court on April 25, 2008, with 20 completed

and submitted job applications.

In June 2008, the trial court held a hearing on the

State’s petition. Defendant appeared pro se and admitted he had

failed to bring the job applications to court. The court found

defendant in willful contempt of court for failing to obey the

March 14, 2008, order. The court then ordered defendant to purge

himself of contempt by reappearing in court each weekday morning

at 8:45 a.m. with a completed and submitted job application until

he obtained employment.

Between June 20, 2008, and July 7, 2008, defendant

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appeared each weekday with a completed and submitted job applica-

tion.

On July 8, 2008, defendant’s case was reassigned to

Judge Chris Freese due to the retirement of Judge Stephen Peters.

Defendant continued to appear each weekday with a job application

through July 29, 2008.

On August 1, 2008, defendant appeared pro se and

notified the trial court he was not currently employed. The

court sua sponte ordered defendant to obtain full-time employment

by August 25, 2008, or face indirect criminal contempt. The

following colloquy took place:

"THE COURT: Well Mr. Covington, we’re

going to change tactics here. I’m simply

going to order you to get a job and be full-

time employed by the next time you come to

court. If you are not employed, we are going

to go directly to indirect criminal contempt

for which, if you are found in indirect crim-

inal contempt, you can be sentenced to six

months in the county jail. If you don’t wish

to work, that’s fine, but you will be going

to jail when you’re found in contempt. I am

not going to have you come back into court

every week to show you have applied for a

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job. I am ordering you to find full-time

employment. Doesn’t matter if it’s working

at McDonald’s; doesn’t matter if it’s hauling

garbage, or mowing yards. Unless you have a

letter from a doctor that says you’re incapa-

ble of holding any type of employment, I

expect you to be employed by the next court

date. Do you understand that?

[DEFENDANT:] I have been coming in

everyday [sic], not every week.

THE COURT: And you’re coming back again,

and the next court date you will either have

a job, or we will arraign you on a contempt

petition. I am not going to mess around with

this case any further. Do you understand

that?

[DEFENDANT:] NO RESPONSE BY DEFENDANT.

THE COURT: Do you understand that, Mr.

Covington? You either have a job by the next

court date, or we go to arraignment on a

contempt petition? Is that clear?

[DEFENDANT:] I thought I was in con-

tempt. That’s why I was here anyway.

THE COURT: Not according to what I show.

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It shows here this [case] is set for further

proceedings.

[DEFENDANT:] But--

THE COURT: Mr. Johnson[,] what is your

understanding of this case?

MR. JOHNSON [(Assistant State’s Attor-

ney)]: Judge, it[’]s been--we have been re-

viewing his ability to pay.

[DEFENDANT:] I’m not in contempt.

THE COURT: I don’t show a contempt peti-

tion on file, unless you’re aware of

something--

MR. JOHNSON: We have been continuing

this case on review of his ability to pay,

and [Judge Peters] has been ordering him to

come in everyday [sic] with a job applica-

tion.

THE COURT: All right. Let’s back up.

There is a contempt petition on file as of

May 1, 2008. Let’s see if there’s ever been

an entry made on that case. This file is a

mess.

MR. JOHNSON: Judge, on June 18, there

was a contempt petition filed.

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 THE COURT: All right.

MR. JOHNSON: And it was set for review,

so that’s where we’re at--indirect civil

contempt.

THE COURT: All right, then, we will

simply call the case for sanctions. Recom-

mendations from the People.

MR. JOHNSON: Judge, the situation was

that on the [p]etition for [i]ndirect [c]ivil

[c]ontempt of [c]ourt, he did not bring in

the 20 completed and submitted job applica-

tions, but since that time, he’s brought in

about 25 job [applications,] so he’s complied

with what [Judge Peters] wanted, so at this

time, it seems I wouldn’t be recommending

that the sentence be to the DeWitt County

[j]ail on that [p]etition for [c]ontempt.

THE COURT: All right. Show, no sanc-

tions will be imposed. Court, on its own

motion, is going to order the defendant to

find full-time employment. That’s 40 hours a

week, one or multiple jobs. If you’re not

employed by the next court date, we will move

forward with indirect criminal contempt for

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 which you can go to jail for a specific sen-

tence up to six months and be fined up to

$500.00. You have until August 25, 2008, at

9 a.m. to be employed full-time. You are

ordered to appear that date. If you are not

employed full-time, the State will have an

[i]ndirect [c]riminal [c]ontempt [p]etition

ready to be filed, and we will arraign you on

that contempt petition."

On August 25, 2008, defendant appeared pro se and

informed the trial court he had not yet obtained employment. The

court ordered the State to file a petition for indirect criminal

contempt.

On August 26, 2008, the State filed a petition titled

"Petition For Rule To Show Cause Indirect Criminal Contempt,"

alleging defendant willfully and contumaciously violated an order

of the trial court by failing to obtain full-time employment by

August 25, 2008.

On November 5, 2008, the trial court held a hearing on

the State’s petition. Defendant appeared pro se. Neither the

State nor defendant presented any evidence. However, the State

asked the court to take judicial notice of the previous proceed-

ings. The court found defendant in indirect criminal contempt,

sentenced him to six months in jail, with day-for-day credit to

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apply, and ordered him to pay $796.50 in jail-meal fees.

At the conclusion of the hearing, the trial court

informed defendant he would have 30 days from his release from

jail--until "February 25, 2009, at 8:30"--to find full-time

employment or else the court would again find him in contempt and

send him back to jail for another six months. The court stated

the following:

"[T]he court is going to take this ap-

proach. We’re going to have indirect crimi-

nal contempt petitions filed every [four]

months; because if you’re sentenced on every

one of them to [six] months in jail, you’re

going to serve [three] months. I’ll give you

another 30 days to find a job. We’ll come

back. We’ll start the process over. If

you’re found in contempt again, you [will] go

back to jail for another [six] months. And

we will do this [for] as long as I am sitting

here or until you get a job and pay what you

owe."

On November 12, 2008, the trial court entered a written

order directing defendant "to be employed full time" on February

25, 2009.

This appeal followed.

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 II. ANALYSIS

On appeal, defendant argues (1) the trial court lacked

subject-matter jurisdiction to find him in contempt for violating

a condition of the December 2005 supervision order because his

supervision had been discharged; (2) the court’s use of improper

contempt procedures violated his due-process rights; and (3)

because of the trial judge’s lack of impartiality, if this court

remands the case, it should be remanded to a different judge.

A. Standard of Review

We will not reverse a court's contempt finding "unless

it is against the manifest weight of the evidence or the record

reflects an abuse of discretion." In re Marriage of Charous, 368

Ill. App. 3d 99, 108, 855 N.E.2d 953, 961 (2006). "'"Abuse of

discretion" means clearly against logic; the question is not

whether the appellate court agrees with the [trial] court, but

whether the [trial] court acted arbitrarily, without employing

conscientious judgment, or whether, in view of all the circum-

stances, the court exceeded the bounds of reason and ignored

recognized principles of law so that substantial prejudice

resulted.'" Long v. Mathew, 336 Ill. App. 3d 595, 600, 783

N.E.2d 1076, 1080 (2003), quoting State Farm Fire & Casualty Co.

v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096

(2000). A finding is against the manifest weight of the evidence

only if (1) the opposite conclusion is clearly evident or (2) the

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trial court's finding is unreasonable, arbitrary, or not based on

the evidence presented. Best v. Best, 223 Ill. 2d 342, 350, 860

N.E.2d 240, 245 (2006).

B. Jurisdiction in the Contempt Proceedings

Defendant first argues the trial court lacked jurisdic-

tion to enter the contempt order. Specifically, defendant

contends that because the petition for rule to show cause related

to an employment condition found in paragraph eight of the

certificate of conditions to the discharged supervision order,

the court lacked subject-matter jurisdiction to enforce the

condition. Paragraph eight of the December 2005 certificate of

conditions required defendant, as a condition of supervision, to

"[w]ork or pursue a course of study or vocational training as

directed by the [p]robation [o]ffice."

The State responds, arguing defendant’s jurisdictional

argument erroneously relies on paragraph eight’s boilerplate

language. The State maintains nothing in the record shows the

trial court ordered defendant "to get a job and be full-time

employed" to satisfy the paragraph-eight language. Instead, the

State argues the court ordered defendant to get a job to pay the

jail-meal fees.

As long as the trial court has jurisdiction over the

defendant and subject matter, the court also has jurisdiction to

enter an order of contempt. People v. Draves, 149 Ill. App. 3d

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657, 659, 500 N.E.2d 1072, 1073 (1986). Generally, a court's

jurisdiction ends with the expiration of probation. People v.

Wilson, 293 Ill. App. 3d 339, 341, 687 N.E.2d 1182, 1184 (1997).

"Where jurisdiction is lacking, any resulting judgment rendered

is void and may be attacked either directly or indirectly at any

time." People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750,

754 (1993).

We initially note that in this case, the trial court

placed defendant on supervision. "’Supervision’ means a disposi-

tion of conditional and revocable release without probationary

supervision, but under such conditions *** as are imposed by the

court, at the successful conclusion of which disposition the

defendant is discharged and a judgment dismissing the charges is

entered." 730 ILCS 5/5-1-21 (West 2006). "’Conditional

[d]ischarge’ means a sentence or disposition of conditional and

revocable release without probationary supervision but under such

conditions as may be imposed by the court." 730 ILCS 5/5-1-4

(West 2006). "’Probation’ means a sentence or disposition of

conditional and revocable release under the supervision of a

probation officer." 730 ILCS 5/5-1-18 (West 2006). We agree

with defendant that for the purposes of establishing jurisdic-

tion, supervision, conditional discharge, and probation are

identical. Each provision provides for a sentence during which

time a defendant is under the jurisdiction of the court, subject

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to conditions imposed by the court, but is not incarcerated

(unless as a condition thereof).

On November 7, 2007, the trial court revoked defen-

dant’s supervision, entered a judgment of conviction, and sen-

tenced defendant to 90 days in jail. The court also ordered

defendant to pay $398.25 in jail-meal fees. The November 8,

2007, docket entry shows the court entered a written order

unsuccessfully discharging defendant’s supervision. At the

conclusion of the November 7, 2007, hearing, the following

colloquy took place:

"MR. LAMKIN [(defense counsel)]: Just to

clarify, supervision is revoked, and once

he’s released from custody, this matter will

be over with?

THE COURT: That is correct. Show, the

remaining balance of any fine and costs are

remitted. Meal fees set at $398.25. Cause

continued to March 14 at 10:00 a.m. for re-

view."

Defendant contends that because the petition for rule

to show cause related to a condition of the terminated order of

supervision--i.e., to find employment, as opposed to paying the

jail-meal fees--the court lacked subject-matter jurisdiction to

enforce the employment condition of the supervision order. We

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disagree.

However, the trial court’s order did not relate to the

original supervision order. Nowhere in the record is there

evidence that the court’s order related to directions from the

probation office or the paragraph-eight language of the supervi-

sion order. Further, as the State correctly points out, the

record does not show the probation office ever directed defendant

to obtain employment.

Here, the jail-meal fees originated from defendant’s

incarceration following his unsuccessful discharge from supervi-

sion. As stated, on November 7, 2007, the trial court revoked

defendant’s supervision and sentenced defendant to 90 days in

jail. As part of its sentence, the court ordered defendant to

pay $398.25 in jail-meal fees. As a result, the jail-meal fees

were ordered subsequent to the discharge of defendant’s supervi-

sion. Further, after defendant had served his 90-day sentence,

the court called the case for hearing on defendant’s ability to

pay the $398.25 jail-meal fees. The March 14, 2008, docket entry

shows the following:

"[The People] appear by SA Jerry Johnson.

[Defendant] appears pro se. Cause called for

[hearing] on ability to pay. [Defendant]

states he is unemployed and on [motion] of

[the People] cause reset for further review

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 to April 25, 2008, at 10 a.m. [Defendant]

ordered to return said date with 20

completed/submitted job [applications]."

On May 7, 2008, the State filed its petition for a

finding of indirect civil contempt. The State’s petition alleged

defendant had willfully and contemptuously failed to submit 20

completed-submitted job applications on April 25, 2008. The

petition did not allege defendant willfully and contemptuously

failed to obey the employment conditions of the original supervi-

sion order. In fact, the trial court never referenced the

original supervision order during any of the contempt proceed-

ings.

On August 1, 2008, the trial court ordered defendant to

get a full-time job to ensure he obeyed the court’s November 7,

2007, order to pay the jail-meal fees. At the November 5, 2008,

hearing on the State’s petition, the court stated the following:

"If you’re found in contempt again, you [wil-

l] go back to jail for another [six] months.

And we will do this [for] as long as I am

sitting here or until you get a job and pay

what you owe." (Emphasis added.)

In this case, the trial court’s order to obtain employ-

ment to pay the jail-meal fees was unrelated to the original

supervision order. The record does not support the position that

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the court was attempting to enforce any condition of the December

2005 supervision order. Instead, the court was using its power

of contempt to ensure that defendant would pay the court-ordered

jail-meal fees. See In re Marriage of Betts, 200 Ill. App. 3d

26, 44, 558 N.E.2d 404, 416 (1990) (sanctions for criminal

contempt are appropriate inter alia, to ensure court orders are

obeyed). Accordingly, the trial court had jurisdiction to

consider the State’s petition for indirect criminal contempt.

C. The Trial Court’s Procedure

Defendant next argues the procedure used by the trial

court to find him in indirect criminal contempt was improper.

Specifically, defendant contends the court’s procedure failed to

afford him the necessary due process. Defendant argues (1) he

was entitled to notice; (2) he was entitled to have proof that

his failure to pay the fee was willful; (3) he was not advised of

his right to counsel; (4) the court’s procedure of taking judi-

cial notice of the previous proceedings (a) denied him his right

to cross-examine witnesses and (b) eliminated his right against

self-incrimination; and (5) the court impermissibly shifted the

State’s burden of proof to defendant by asking him to show what

he had done to seek employment.

The State argues defendant was only entitled to minimal

due process. Specifically, the State contends that although the

trial court found defendant in indirect criminal contempt of

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court, the charge against defendant was coercive rather than

punitive and thus more in the nature of an adjudication of

indirect civil contempt.

Defendant replies, arguing that because defendant was

not afforded any kind of purge procedure essential in civil

contempt proceedings, the State’s characterization of defendant’s

action as indirect civil contempt is improper.

1. Indirect Criminal or Civil Contempt of Court

The penalties in a civil contempt case "serve only to

coerce the contemnor to comply with a court order, and they must

cease when the contemnor complies." In re Marriage of Carpel,

232 Ill. App. 3d 806, 823, 597 N.E.2d 847, 859 (1992); Pancotto

v. Mayes, 304 Ill. App. 3d 108, 111, 709 N.E.2d 287, 289 (1999)

("Civil contempt proceedings have two fundamental attributes: (1)

the contemnor must be capable of taking the action sought to be

coerced, and (2) no further contempt sanctions are imposed upon

the contemnor's compliance with the pertinent court order").

Criminal contempt is retrospective in nature and

consists of punishing for doing what has been prohibited or not

doing what has been ordered. Betts, 200 Ill. App. 3d at 46, 558

N.E.2d at 417; see People v. Lindsey, 199 Ill. 2d 460, 468, 771

N.E.2d 399, 406-07 (2002) ("Criminal contempt sanctions are

retrospective in nature and punish the contemnor for past acts

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which he cannot undo").

In this case, the trial court did not impose sanctions

to compel a future act. Instead, defendant’s six-month sentence

clearly sought to punish him for his prior conduct, which he

cannot undo--namely his failure to be employed full time on

August 25, 2008. In addition, defendant’s imprisonment was for a

definite period of time. The record does not show defendant

"held the keys to his cell" by being able to purge himself of the

contempt. As the State correctly points out, holding the keys to

one’s jail cell is a fundamental characteristic of indirect civil

contempt. See In re Marriage of Logston, 103 Ill. 2d 266, 289,

469 N.E.2d 167, 177 (1984) ("the civil contemnor must be provided

with the ’keys to his cell’"). However, the court never indi-

cated defendant would be immediately released upon payment of the

jail-meal fees.

Moreover, the State’s petition, the trial court’s

order, and the record show the November 5, 2008, contempt charge

was titled and continuously referenced as indirect criminal

contempt. We additionally note that prior to imposing sentence,

the court asked defendant if he had "[a]nything [he] want[ed] to

say about what the punishment should be here." (Emphasis added.)

As a result, we find the contempt in this case is properly

characterized as criminal in nature.

2. Procedural Requirements

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 Before a defendant may be sanctioned for indirect civil

contempt, he or she must be "accorded due process of law with

respect to the contempt charges." Betts, 200 Ill. App. 3d at 52,

558 N.E.2d at 421. "In a civil contempt proceeding, the contem-

nor is only entitled to minimal due process, consisting of notice

and an opportunity to be heard." In re Marriage of Cummings, 222

Ill. App. 3d 943, 948, 584 N.E.2d 900, 903 (1991). "The notice

must, of course, contain an adequate description of the facts on

which the contempt charge is based and inform the alleged contem-

nor of the time and place of an evidentiary hearing on the charge

within a reasonable time in advance of the hearing." Betts, 200

Ill. App. 3d at 53, 558 N.E.2d at 422.

However, a person charged with indirect criminal

contempt is "entitled to constitutional protections that are

afforded to any other criminal defendant." Lindsey, 199 Ill. 2d

at 471, 771 N.E.2d at 408.

"One charged with indirect criminal contempt

is entitled to '"*** know the nature of the

charge against him, to have it definitely and

specifically set forth by citation or rule to

show cause, and *** [have] an opportunity to

answer ***."' [Citation.] Also applicable

to respondent in an indirect criminal con-

tempt proceeding are the privilege against

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 self-incrimination, the presumption of inno-

cence, and the right to be proved guilty

beyond a reasonable doubt." Betts, 200 Ill.

App. 3d at 58, 558 N.E.2d at 425.

a. Notice

"[D]ue process requires that before criminal sanctions

may be imposed upon a respondent as a result of indirect criminal

contempt proceedings, notice must be provided to the alleged

contemnor that such sanctions are being sought and might be

imposed." In re Marriage of Alltop, 203 Ill. App. 3d 606, 616,

561 N.E.2d 394, 401 (1990).

"Because a respondent in an indirect

criminal contempt proceeding enjoys the priv-

ilege against self-incrimination, he may not

be called by the petitioner to testify.

Accordingly, a petition initiating indirect

criminal contempt proceedings ought not have

the title 'Petition for Rule To Show Cause,'

the designation commonly (and appropriately)

used for a petition initiating an indirect

civil contempt proceeding; instead, a peti-

tion initiating an indirect criminal contempt

proceeding ought to have the title 'Petition

for Adjudication of Criminal Contempt.' By

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 definition, if a respondent has a right not

to testify, he cannot be required to 'show

cause' why he should not be held in indirect

criminal contempt. Instead, the burden is on

the petitioner to prove the charges in the

petition beyond a reasonable doubt. An an-

cillary benefit of using such a title would

be to force court and counsel into a recogni-

tion that such petitions differ from routine

petitions for rules to show cause and require

different procedural steps." (Emphasis in

original.) Betts, 200 Ill. App. 3d at 58-

59, 558 N.E.2d at 425.

Thus, "a pleading entitled 'petition for rule to show cause' is

not sufficient to provide the due process to which an alleged

criminal contemnor is entitled." Alltop, 203 Ill. App. 3d at

616, 561 N.E.2d at 401. Instead, the due-process "requirement

can be met by entitling the initial pleading, 'petition for

adjudication of criminal contempt.'" Alltop, 203 Ill. App. 3d at

616, 561 N.E.2d at 401.

In this case, the State did not file a petition for

adjudication of criminal contempt. Instead, the State filed a

petition for rule to show cause. As a result, the procedure used

failed to provide defendant with proper notice that he faced

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criminal sanctions.

b. Burden of Proof

In an indirect criminal contempt proceeding, "the

burden is on the [State] to prove the charges in the petition

beyond a reasonable doubt." Betts, 200 Ill. App. 3d at 59, 558

N.E.2d at 425. To sustain a finding of indirect criminal con-

tempt the State must prove beyond a reasonable doubt (1) the

existence of a court order, and (2) willful violation of that

order. People v. Totten, 118 Ill. 2d 124, 138, 514 N.E.2d 959,

965 (1987). A defendant in an indirect criminal contempt pro-

ceeding has a right against self-incrimination. People v.

Budzynski, 333 Ill. App. 3d 433, 439, 775 N.E.2d 275, 281 (2002).

Accordingly, a defendant cannot be required to "'show cause' why

he should not be held in contempt," because it "amounts to an

impermissible shifting of the burden of proof." People v.

Ramsell, 266 Ill. App. 3d 297, 301, 640 N.E.2d 975, 978 (1994).

During the criminal contempt hearing, neither the State

nor defendant presented any evidence. At the State’s request,

the trial court took judicial notice of the previous proceedings.

At the hearing, the court sua sponte asked defendant why he did

not have employment and why he should not be held in contempt.

The court also asked defendant if he had any witnesses or evi-

dence he wanted to present in opposition of the State’s petition.

The court stated the following: "I’ll direct the sheriff to

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retrieve whatever documents you want to bring to court to show

why you didn’t have a job when you were ordered to have a job on

that court date." During the hearing the court asked defendant

the following: "Now, you’re telling me you have no evidence to

present, Mr. Covington; is that correct?" Defendant responded,

explaining, "Not as far as working, no. No, sir[,] except that

the year will be up in [two] days. And they said I could go back

to [work,] but I don’t have any evidence to show you that."

Here, the court repeatedly required defendant to show what he had

done to seek employment. We find this procedure impermissibly

shifted the State’s burden of proof.

c. Defendant’s Right to Counsel

A person charged with indirect criminal contempt is

entitled to the right to counsel. Lindsey, 199 Ill. 2d at 471,

771 N.E.2d at 408. However, at no point during the indirect

criminal contempt proceeding was defendant admonished of his

right to counsel. Instead, during the hearing, the trial court’s

references to counsel are limited to the following statements:

"Defendant is pro se. He does not have counsel, and he did not

request the public defender" and "This is on a [p]etition for

[i]ndirect [c]riminal [c]ontempt. Defendant has been, indicated

he’s going to represent himself. Do you still intend to repre-

sent yourself[,] Mr. Covington?" In this case, the court’s

references to the public defender and defendant’s pro se appear-

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ance were insufficient to properly admonish him of his right to

have counsel present during the criminal proceeding.

In this case, we find the trial court erred in entering

a criminal-contempt judgment against defendant without providing

the necessary criminal procedural rights. See Betts, 200 Ill.

App. 3d at 59-60, 558 N.E.2d at 426; Alltop, 203 Ill. App. 3d at

614-15, 561 N.E.2d at 399-400.

D. Defendant’s Impartiality Claim

Defendant last argues this case should be remanded to a

different judge. Specifically, defendant contends the trial

court’s comments at the conclusion of the November 5, 2008,

hearing demonstrate the court had lost its impartiality and

judicial restraint with respect to defendant.

Supreme Court Rule 366(a)(5) allows a reviewing court

to make any order that a case may require. 155 Ill. 2d R.

366(a)(5). This authority includes the power to remand the case

to a different judge. Raintree Homes, Inc. v. Village of Long

Grove, 209 Ill. 2d 248, 263, 807 N.E.2d 439, 447 (2004).

"A trial judge is presumed to be impartial, and the

burden of overcoming this presumption rests on the party making

the charge of prejudice." Eychaner v. Gross, 202 Ill. 2d 228,

280, 779 N.E.2d 1115, 1146 (2002). "'Allegedly erroneous find-

ings and rulings by the trial court are insufficient reasons to

believe that the court has a personal bias for or against a

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litigant.'" Raintree Homes, 209 Ill. 2d at 263, 807 N.E.2d at

448, quoting Eychaner, 202 Ill. 2d at 280, 779 N.E.2d at 1146.

In this case, defendant bases his argument that the

trial court was biased against him on the following comments:

"[T]he court is going to take this ap-

proach. We’re going to have indirect crimi-

nal contempt petitions filed every [four]

months; because if you’re sentenced on every

one of them to [six] months in jail, you’re

going to serve [three] months. I’ll give you

another 30 days to find a job. We’ll come

back. We’ll start the process over. If

you’re found in contempt again, you [will] go

back to jail for another [six] months. And

we will do this [for] as long as I am sitting

here or until you get a job and pay what you

owe."

Because defendant bases his contention solely on the

trial court's comment, defendant failed to show the court was

biased against him.

III. CONCLUSION

For the reasons stated, we vacate the trial court's

order finding defendant in indirect criminal contempt and remand

for further proceedings not inconsistent with this opinion.

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Vacated and remanded with directions.

TURNER and POPE, JJ., concur.

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