People v. McPherson

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Appellate Court Date: 2017.10.23
09:07:30 -05'00'

People v. McPherson, 2017 IL App (2d) 150538

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DARIUS McPHERSON, Defendant-Appellant.

District & No. Second District
Docket No. 2-15-0538

Filed September 1, 2017

Decision Under Appeal from the Circuit Court of Lake County, No. 14-CC-11; the
Review Hon. Daniel B. Shanes, Judge, presiding.

Judgment Vacated and remanded.

Counsel on Michael J. Pelletier, Thomas A. Lilien, and John T. Hildebrand, of
Appeal State Appellate Defender’s Office, of Elgin, for appellant.

Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
Lawrence M. Bauer, Victoria E. Jozef, and Cora Moy, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE HUDSON delivered the judgment of the
court, with opinion.
Justices Birkett and Spence concurred in the judgment and opinion.
 OPINION

¶1 Defendant, Darius McPherson, appeals from the judgment of the circuit court of Lake
County sentencing him, following his guilty plea to direct criminal contempt, to a six-year
term of imprisonment. He contends, among other things, that Illinois Supreme Court Rule
604(d) (eff. July 1, 2017) applied and that, upon the filing of a motion to reconsider his
sentence, his counsel failed to file the required certificate. Because Rule 604(d) applied, we
vacate and remand.

¶2 I. BACKGROUND
¶3 Defendant was originally charged with a drug offense (No. 14-CF-2234). While that case
was pending, the State filed a new case charging defendant, via a petition for adjudication, with
direct criminal contempt. The petition alleged that defendant had been granted use immunity to
testify at his brother’s murder trial. Although the trial court had ordered defendant to testify
and advised him that if he refused he could be found in direct criminal contempt, he refused. In
its petition, the State requested that defendant’s refusal to testify be classified as a “major
contempt” and that a sentence exceeding six months’ incarceration be considered.
¶4 On November 20, 2014, defendant was arraigned. Pursuant to defendant’s motion for a
substitution of judge, the case was assigned to a different judge.
¶5 On March 2, 2015, defendant entered a guilty plea in his drug case, leaving open the issue
of the appropriate sentence. He also entered an “open plea” to the contempt charge, which the
trial court characterized as an “open admission to the petition for adjudication of criminal
contempt.”
¶6 The trial court then admonished defendant as to both offenses, consistently with Illinois
Supreme Court Rule 402(a) (eff. July 1, 2012). After doing so, the court asked defendant if he
wished “to plead guilty and admit” the criminal contempt, to which defendant answered yes.
¶7 The State offered a factual basis for the contempt charge. According to the State, the court
reporter and the assistant State’s Attorney assigned to defendant’s brother’s murder case
would testify that defendant was subpoenaed in that case, the court ordered him to testify, and
defendant refused to do so. Defendant stipulated to, and the court found sufficient, the factual
basis. The court then set the matter for sentencing.
¶8 At the sentencing, the trial court found that, because defendant was in jail for his drug
offense when he committed the contempt, his sentence for contempt must be consecutive. The
court considered the presentence report and various factors in arriving at the sentence for
contempt. The court sentenced defendant to six years’ imprisonment. The court sentenced
defendant to 3½ years’ imprisonment on the drug conviction.
¶9 Defendant filed a motion to reconsider only his contempt sentence. Defendant’s attorney
did not file a certificate pursuant to Rule 604(d). In denying the motion to reconsider, the trial
court reiterated its reasoning for imposing the six-year, consecutive prison term. Defendant, in
turn, filed a timely notice of appeal.

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¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant contends that (1) because he pled guilty to the contempt charge,
counsel was required, upon the filing of the motion to reconsider, to file a certificate under
Rule 604(d) and (2) the sentence on the contempt conviction must be reduced, as his failure to
testify at his brother’s trial did not prejudice the State, and the trial court erred in imposing a
consecutive sentence. The State responds that (1) because direct criminal contempt is
“sui generis,” Rule 604(d) does not apply and (2) the court neither abused its discretion in
imposing a six-year prison sentence nor erred in making the sentence consecutive.
¶ 12 Because it is dispositive, we first address the Rule 604(d) issue. Rule 604(d) provides, in
pertinent part, that when a defendant, who has pled guilty, moves to withdraw his plea or
reconsider his sentence, his counsel must file a certificate stating that he has consulted with the
defendant, has examined the trial court file and report of proceedings, and has made any
amendments to the motion necessary for adequate presentation of any defects in those
proceedings. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Rule 604(d) applies to the entry of a guilty
plea to a criminal charge. People v. Tufte, 165 Ill. 2d 66, 72 (1995).
¶ 13 In this case, there is no question that defendant was charged criminally in the contempt
prosecution. Indeed, he was subsequently convicted and sentenced to prison. Additionally,
defendant pled guilty to the charge. Because defendant pled guilty to a criminal charge, Rule
604(d), by its terms, applied. Thus, when defendant moved for reconsideration of his sentence,
his counsel was required to file the certificate.
¶ 14 The State, however, contends that, because direct criminal contempt is sui generis and the
normal procedural rules for criminal prosecutions do not apply, Rule 604(d) likewise does not
apply. We disagree.
¶ 15 Although generally the procedural protections applicable to a criminal prosecution do not
apply to a direct criminal contempt conviction (see People v. Hixson, 2012 IL App (4th)
100777, ¶¶ 13-14), the facts of this case are unusual. Unlike the typical direct criminal
contempt proceeding, in which the trial court summarily decides whether a defendant was
contemptuous and imposes an immediate sanction (see People v. Simac, 161 Ill. 2d 297, 306
(1994) (direct criminal contempt is normally found and punished summarily)), here there was
a far more formal procedure. Indeed, the procedure here had all of the trappings of a typical
criminal prosecution. Defendant was formally charged via a petition for adjudication of direct
criminal contempt. Defendant was also arraigned. He pled guilty at a formal guilty-plea
proceeding, at which the court admonished him consistently with Rule 402(a), and the State
offered a factual basis. Further, after defendant pled guilty, the matter was set for sentencing.
At the sentencing hearing, the court considered the presentence investigation report and
various sentencing factors in arriving at a sentence. In light of the formal criminal prosecution
in this case, the rules normally applicable to criminal prosecutions applied, including the
certificate requirement of Rule 604(d).
¶ 16 Because trial counsel failed to file a Rule 604(d) certificate, the proper remedy is to vacate
the denial of defendant’s motion and remand the cause for the filing of a valid certificate, the
opportunity to file a new motion, and a new motion hearing. See People v. Martell, 2015 IL
App (2d) 141202, ¶ 21 (citing People v. Lindsay, 239 Ill. 2d 522, 531 (2011)). Thus, we do not
reach the issue regarding defendant’s sentence.

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¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons, the order of the circuit court of Lake County is vacated, and the
cause is remanded.

¶ 19 Vacated and remanded.

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