                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Geiger, 2011 IL App (3d) 090688




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    TERRELL D. GEIGER, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-09-0688


Rule 23 Order filed        October 3, 2011
Rule 23 Order
withdrawn                  November 10, 2011
Opinion filed              November 10, 2011


Held                       The 20-year sentence imposed on defendant based on his refusal to testify
(Note: This syllabus       in a trial for a double murder was not excessive or grossly
constitutes no part of     disproportionate, notwithstanding defendant’s contentions that the
the opinion of the court   sentencing factors were improperly balanced by the trial court, that he
but has been prepared      acted without knowledge of the consequences of his conduct, and that no
by the Reporter of         other similar sentence had been imposed in Illinois, since defendant had
Decisions for the          knowledge of events directly linking the defendant in the underlying case
convenience of the         to the charged offenses, defendant’s refusal to testify hindered the
reader.)
                           administration of justice, defendant had a long and serious criminal
                           record, he was already incarcerated, he was admonished that he had no
                           fifth amendment right to refuse to testify because he was not at risk of
                           incriminating himself, and he was informed that he could be sentenced to
                           a period of years consecutive to the sentence he was already serving if he
                           persisted in refusing to testify.
Decision Under             Appeal from the Circuit Court of Kankakee County, No. 08-MR-518; the
Review                     Hon. Clark E. Erickson, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Fletcher P. Hamill, of State Appellate Defender’s Office, of Ottawa, for
Appeal                     appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Michael M. Glick and Stephen M. Soltanzadeh,
                           Assistant Attorneys General, of counsel), for the People.


Panel                      JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                           Justice Wright concurred in the judgment and opinion.
                           Justice Holdridge dissented, with opinion.




                                             OPINION

¶1          Following a bench trial, the circuit court of Kankakee County convicted defendant,
        Terrell Geiger, of direct criminal contempt of court and sentenced him to 20 years’
        incarceration. Defendant appeals, claiming his sentence is excessive and grossly
        disproportionate to the nature of the offense.

¶2                                             FACTS
¶3           The record indicates that on April 8, 1999, defendant gave a statement to the police in
        which he discussed his knowledge of facts surrounding the double murder of Michael Cox
        and Lazeric Martin. While at a hotel, defendant heard Joe Mason and Javar Hollis discussing
        “sticking someone up for a couple of G’s.” Howard Wilson, Jimmy Murry and Terry Lowe
        were in attendance at the hotel that day as well. After walking around, the group retreated to
        defendant’s room, where they “were hanging out and drinking.”
¶4           Defendant’s statement indicates that while the group was together, “Javar was talking
        like, ‘I’m going to get me a nigger,’ ” which indicated to defendant that Javar intended “to
        go do the robbery.” Defendant’s statement continues noting that, “Awhile after Joe and Javar
        left, a girl named Nina came to our room and told us that she was over at Lonnie’s house and


                                                 -2-
       she heard someone next door get their head blown off. Joe came back to the room first. I
       went outside the room and saw Javar running to the hotel. Javar came up to me and said, ‘it
       took me a long time but I got that nigger.’”
¶5          Defendant told police that while he was with Javar that night, “Javar told me what had
       happened.” Javar indicated that Lazeric was panicking after Javar began robbing him. Javar
       noted he then shot Lazeric in the leg after which Lazeric said, “Just spare me my life.”
       Thereafter, Joe shot Lazeric twice in the head. Javar indicated that he then went outside and
       shot Michael Cox with a pistol-grip Mosseberg shotgun. Defendant’s statement revealed
       other material facts surrounding the murders as well.
¶6          The State did not call defendant to testify during Javar Hollins’ first trial for the murder
       of Lazeric Martin and Michael Cox. Hollins was convicted, but this court reversed his
       conviction in People v. Hollins, 366 Ill. App. 3d 533 (2006), due to issues involving jury
       selection. The State did, however, call defendant to testify in the trial of Hollins’
       codefendant, Joseph Mason. In the trial against Mason, defendant testified consistent with
       the statement given to the police.
¶7          While Geiger was in the custody of the Department of Corrections, the trial court issued
       a writ of habeas corpus ad testificandum, ordering his presence as a witness in the second
       murder trial of Hollins. When calling Geiger to the stand, the prosecution informed the trial
       court that it expected defendant to assert his right against self-incrimination under the fifth
       amendment (U.S. Const., amend. V), but argued Geiger’s testimony would not be
       inculpatory. The trial court asked for an offer of proof. The State proffered that it believed
       Geiger, “if permitted to testify,” would testify consistent with his prior statement to the police
       and testimony during the trial of Joseph Mason. The prosecutor suggested that if defendant
       refused to testify against Hollins, he should be sentenced to 180 days in jail with no day-for-
       day credit for direct criminal contempt. The trial court indicated it could not deny defendant
       day-for-day good time, but stated it could sentence defendant to a term longer than 180 days
       if the State filed a formal contempt petition.
¶8          The trial court noted, “This is someone who everyone is in agreement that he is–that he
       does not have a Fifth Amendment right.” The State then called defendant to the stand. The
       trial judge informed him that he had no right to remain silent based upon his testimony in the
       trial against Mason and his 1999 statement to the police. Specifically, the trial court stated
       defendant was “not subjecting yourself to any criminal–to being charged with any crime as
       a result of your testimony. Okay? Therefore, you don’t have a right to take the Fifth
       Amendment.”
¶9          Nevertheless, defendant informed the court that he intended to assert his fifth amendment
       right and not testify. The trial court informed defendant that if the State filed a formal
       petition for criminal contempt of court, the possible punishment could be “a period of years”
       in prison. Defendant indicated he understood.
¶ 10        The State then questioned defendant. He indicated he was present at the hotel on the date
       of the murders. Thereafter, defendant refused to answer any further questions. The judge
       admonished defendant that he had no right to refuse to testify; defendant persisted in his
       refusal.


                                                  -3-
¶ 11       During a recess, the State filed a formal petition charging defendant with criminal
       contempt. The petition alleged that defendant violated the judge’s order to testify, even
       though he had no right under the fifth amendment to do so. The petition asserted that due to
       the nature of the serious charges against Hollins and defendant’s knowledge of material facts,
       an appropriate sentence would be 20 years’ imprisonment.
¶ 12       Following the filing of the State’s petition, the trial court then appointed counsel to
       represent defendant. Geiger was again called to the stand in the Hollins retrial and informed
       that the State was offering him immunity for his testimony. The trial court noted that so long
       as defendant’s testimony was truthful, it could not be used against him in any criminal
       prosecution. Defendant indicated he understood and then conferred with his counsel. After
       conferring with counsel, defendant continued in his refusal to testify and the Hollins trial
       concluded without defendant’s testimony.
¶ 13       Approximately six weeks thereafter, defendant filed a motion to dismiss the petition,
       claiming his proposed testimony was inculpatory and, as such, he possessed a right to refuse
       to testify under the fifth amendment. Ultimately, the judge denied defendant’s motion.
       Defendant waived his right to a jury trial and a bench trial commenced. The parties stipulated
       to certain transcripts and argued their respective positions. The trial court found defendant
       guilty of direct criminal contempt.
¶ 14       The court scheduled a sentencing hearing and ordered a presentence report. The
       presentence investigation report indicated that defendant has felony convictions in Illinois
       for delivery of a controlled substance near a park or school (Class 1) and manufacturing or
       delivering between 15 and 100 grams of cocaine (Class X). Defendant also has two felony
       convictions in the state of Wisconsin for manufacturing or delivering controlled substances.
       Defendant also has one Class A misdemeanor conviction for obstructing a police officer.
       While incarcerated, defendant earned his GED. Defense counsel requested a sentence of 6
       months’ incarceration and the State requested a sentence of 20 years’ incarceration.
¶ 15       The trial court noted that defendant seemed defiant when he refused to testify and noted
       defendant did not seem afraid of retaliation for his testimony. The judge commented on
       defendant’s criminal history and imposed a sentence of 20 years’ incarceration. Defendant
       filed a motion to reconsider the sentence, which the trial court denied. This is defendant’s
       direct appeal.

¶ 16                                         ANALYSIS
¶ 17       Defendant’s sole claim in this appeal is that his 20-year sentence of incarceration is
       excessive and grossly disproportionate to the nature of the offense. Specifically, defendant
       submits that: (1) the trial court improperly balanced sentencing factors when setting his 20-
       year sentence; (2) he “acted without knowledge of the consequences of his conduct” and, as
       such, his sentence is excessive; and (3) his sentence must be reduced as his research has
       revealed no published Illinois decisions in which a defendant has received a similar sentence.
¶ 18       We note defendant does not contest, and actually concedes, he committed direct criminal
       contempt of court. Defendant does not seek a reversal of the court’s finding of contempt. He
       simply requests that we reduce his sentence pursuant to our authority under Supreme Court

                                                -4-
       Rule 615(b)(4). Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967).
¶ 19       We review the sentence imposed by the trial court under the abuse of discretion standard.
       In re G.B., 88 Ill. 2d 36, 46 (1981). Our supreme court clearly stated in People v. Alexander,
       239 Ill. 2d 205 (2010), that a “reviewing court may not alter a defendant’s sentence absent
       an abuse of discretion by the trial court.” Alexander, 239 Ill. 2d at 212. A trial court has
       broad discretionary powers in imposing a sentence, and its sentencing decisions are entitled
       to great deference. Id. at 212. A sentence will be deemed an abuse of discretion where it is
       “greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to
       the nature of the offense.” People v. Stacey, 193 Ill. 2d 203, 210 (2000).
¶ 20       Our supreme court has consistently reminded courts of review that the “ ‘trial judge has
       the opportunity to weigh such factors as the defendant’s credibility, demeanor, general moral
       character, mentality, social environment, habits, and age. [Citations.] Consequently, the
       reviewing court must not substitute its judgment for that of the trial court merely because it
       would have weighed these factors differently.’ ” Alexander, 239 Ill. 2d at 213 (quoting
       Stacey, 193 Ill. 2d at 209). “A reviewing court gives great deference to the trial court’s
       judgment regarding sentencing because the trial judge, having observed the defendant and
       the proceedings, has a far better opportunity to consider these factors than the reviewing
       court, which must rely on the ‘cold’ record.” (Internal quotation marks omitted.) Alexander,
       239 Ill. 2d at 212-13 (quoting People v. Fern, 189 Ill. 2d 48, 53 (1999)).
¶ 21       We acknowledge that reasonable people could conclude that defendant’s sentence is
       excessive. However, in light of the factors discussed below and the standard of review
       addressed above, we find no basis to reverse the trial court.

¶ 22                                    A. Sentencing Factors
¶ 23       In claiming the trial court improperly weighed various sentencing factors leading it to
       issue him an excessive sentence, defendant notes that the Illinois Constitution mandates
       “[a]ll penalties shall be determined both according to the seriousness of the offense and with
       the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.
       Defendant acknowledges that when fashioning a sentence, a trial court must balance several
       factors including: the nature and circumstances of the offense; the defendant’s conduct in the
       commission of the offense; defendant’s personal history including his age, demeanor, habits,
       mentality, credibility, criminal history, general moral character and social environment, and
       education. People v. Quintana, 332 Ill. App. 3d 96 (2002).
¶ 24       Admitting his criminal record weighs in favor of a significant penalty, defendant submits
       his 20-year sentence is clearly excessive when all other factors are properly considered. He
       claims the trial court failed to properly consider that his actions were nonviolent in nature.
       Defendant further contends his refusal to testify did no real harm as Hollins was convicted
       without his testimony. As such, defendant asserts we must reduce his sentence. We disagree.
¶ 25       That a trier of fact ultimately found Hollins guilty does not negate the fact that defendant
       possessed material and significant knowledge of facts surrounding a double homicide yet
       refused to testify to them. Criminal contempt sanctions are retrospective in nature and punish
       the contemnor for past acts which he cannot undo. People v. Lindsey, 199 Ill. 2d 460, 468

                                                 -5-
       (2002). It is well established that all courts have the inherent power to punish contempt and
       such power is essential to the maintenance of their authority and administration of judicial
       powers. People v. Loughran, 2 Ill. 2d 258, 262 (1954). Direct criminal contempt is a unique
       crime that does not have a statutory maximum sentence (720 ILCS 5/1-3 (West 2008);
       People v. Stollar, 31 Ill. 2d 154 (1964)) and has been defined as conduct calculated to
       embarrass, hinder or obstruct a court in its administration of justice or derogate from its
       authority or dignity, thereby bringing the administration of law into dispute. People v. Simac,
       161 Ill. 2d 297, 305 (1994).
¶ 26       Defendant’s knowledge of the events directly linked Hollins to the planning and
       execution of the robbery and homicides. Defendant’s contemptuous conduct severely limited
       the evidence of Hollins’ involvement and hindered the administration of justice for the
       murders of two men. The harm caused by defendant’s conduct was not just to the prosecution
       of Hollins, but to the court and its authority. Allowing defendant not to testify or handing
       down a light sentence to such a habitual offender would have undoubtedly invited future
       witnesses to choose a contempt sentence over following the court’s order to testify in serious
       criminal cases, such as other double murder trials. At the time he refused to testify, defendant
       was already incarcerated. The trial judge specifically noted that defendant had no fear or even
       an “inkling of concern” that he would be prosecuted for ignoring the court’s order. The court
       noted, “I saw pure scorn for the judicial system in the defendant’s face.”
¶ 27       While we acknowledge, as defendant indicates, his actions were not violent, they were
       nonetheless clearly calculated to hinder or obstruct the court in its administration of justice
       in a double murder case. When coupled with defendant’s criminal history of previously
       obstructing a police officer, selling controlled substances near a park or a school and Class
       X manufacturing or delivery of cocaine, we cannot say the trial court abused its discretion
       in weighing factors relevant to fashioning defendant’s sentence. At the age of 25, defendant
       had already received sentences of six months in jail, two concurrent terms of two years’
       incarceration, a four-year term of incarceration and a six-year term of incarceration. These
       terms were clearly insufficient to deter defendant’s activities.

¶ 28                        B. Defendant’s Knowledge of the Consequences
¶ 29        Defendant also claims his actions were mitigated by a mistaken belief that he had a right
       not to testify and that he failed to comprehend the possible term of incarceration. Again, we
       disagree. After being called to the stand, defendant acknowledged that he was subpoenaed
       to testify at the trial and ordered by the court to do so. However, he indicated that he wished
       to invoke his right under the fifth amendment and not testify as he believed he would
       incriminate himself should he testify. When asked by the court what led him to this belief,
       defendant did not respond.
¶ 30        Based on his prior testimony against Mason and statement given to the police in 1999,
       the trial court informed defendant that he would not be subject to criminal prosecution as
       long as his testimony was truthful and, again, ordered him to testify. The court admonished
       him that he had no fifth amendment right to refuse to testify because he was not at risk of
       incriminating himself and further informed him that he was subjecting himself to direct


                                                 -6-
       criminal contempt by refusing to testify. The trial court specifically informed defendant that
       he could be sentenced to a “period of years imprisonment to run consecutive” to a sentence
       already being served for a narcotics offense.
¶ 31        After the State filed the petition charging defendant with direct criminal contempt, the
       trial court informed defendant that the Attorney General’s office was offering him “use
       immunity,” meaning he could not be prosecuted “for any crimes arising out of what he said
       on the stand,” so long as his testimony was truthful. Defendant indicated he understood this
       offer.
¶ 32        The record overwhelmingly belies defendant’s assertion that he operated under the
       mistaken belief that he had a right not to testify or that he had no idea he could be sentenced
       to 20 years’ incarceration. The petition filed by the State specifically requested a 20-year
       sentence. In conjunction to informing defendant that a potential sentence included a “period
       of years,” the trial judge read the petition seeking the 20-year sentence in open court to
       defendant and his counsel. We find defendant’s assertion that he was unaware he could
       receive a 20-year sentence to be without merit.
¶ 33        Defendant argues that People v. Carradine, 52 Ill. 2d 231 (1972), supports his contention
       that he “acted without knowledge of the consequence[s] of his conduct.” We fail to see how.
       Just as in the case at bar, the court in Carradine noted the record adequately established the
       court repeatedly warned defendant “of the consequence[s] of her action” and appointed
       counsel to represent her in the matter. Carradine, 52 Ill. 2d at 233. Despite the repeated
       warnings, the Carradine court found that the defendant “deliberately chose to incur
       imprisonment rather than [testify]. The conscientious trial judge appointed counsel for her
       and patiently, clearly and repeatedly explained the situation ***.” Carradine, 52 Ill. 2d at
       234.
¶ 34        Defendant cites to Carradine and claims that it “cannot be said that [he] deliberately
       chose to incur a twenty-year sentence when he refused to testify in this case.” Again, the
       record clearly establishes that defendant herein, much like the defendant in Carradine,
       “chose to incur imprisonment rather than” testify. We fail to see how defendant’s choice of
       incarceration is rendered less than deliberate by the fact that the trial court imposed the exact
       term of imprisonment defendant knew the State was seeking.

¶ 35                                   C. Published Decisions
¶ 36       Finally, citing to numerous cases (Carradine, 52 Ill. 2d at 234; People v. Cooper, 202 Ill.
       App. 3d 336 (1990); People v. Schultz, 380 Ill. 539 (1942); People v. Fields, 177 Ill. App.
       3d 129 (1988)), defendant argues his sentence is excessive as his “research has not revealed
       a single published Illinois opinion where a defendant received a sentence comparable to the
       instant sentence for refusing to testify at trial.” However, defendant acknowledges that it is
       inappropriate for a court to engage in comparative sentencing. See People v. Fern, 189 Ill.
       2d 48, 55 (1999) (“We agree with those decisions rejecting cross-case comparative
       sentencing as a basis for challenging [the excessiveness of] a sentence. We find that such an
       analysis does not comport with our sentencing scheme’s goal of individualized sentencing
       and would unduly interfere with the sentencing discretion vested in our trial courts.”).

                                                 -7-
¶ 37       The fact that there is no reported decision affirming a 20-year sentence of incarceration
       for direct criminal contempt is not a proper basis to reduce defendant’s sentence. “The
       propriety of the sentence imposed in a particular case cannot properly be judged by the
       sentence imposed in another, unrelated case. Simply because a lesser sentence was imposed
       in another case does not lead to the conclusion that the more severe sentence imposed in the
       case at hand is excessive.” Fern, 189 Ill. 2d at 56. As such, we refuse to engage in the cross-
       comparison analysis defendant requests and evaluate his sentence in light of those handed
       down in other cases or those imposed for other crimes such as perjury. It would clearly be
       improper to do so. Fern, 189 Ill. 2d at 56.

¶ 38                                   CONCLUSION
¶ 39       For the foregoing reasons, the judgment of the circuit court of Kankakee County is
       affirmed.

¶ 40       Affirmed.

¶ 41        JUSTICE HOLDRIDGE, dissenting:
¶ 42        I respectfully dissent. The central inquiry is whether a 20-year sentence for direct
       criminal contempt of court was excessive. Trial courts have great discretion in imposing
       sentences following a criminal conviction, and any sentence challenged on appeal will only
       be overturned if the sentence constitutes an abuse of discretion. People v. Streit, 142 Ill. 2d
       13, 19 (1991). In determining the appropriate sentence to impose, a trial court must balance
       several factors, including the nature and circumstances of the crime, the defendant’s conduct
       in the commission of the crime, his personal history, and his rehabilitative potential. People
       v. Quintana, 332 Ill. App. 3d 96, 106 (2002). The sentencing court must also consider
       whether the sentence appropriately reflects the seriousness of the defendant’s conduct, as
       well as any extenuating circumstances. People v. Ziporyn, 106 Ill. 2d 419, 422 (1985). When
       a trial court sets an arbitrary, oppressive or unjust sentence, a reviewing court has the power
       and the duty to intervene to reduce the term. People v. Gleckler, 82 Ill. 2d 145, 171 (1980);
       United States v. Leyva, 513 F.2d 774, 779 (5th Cir. 1975).
¶ 43        Under the facts and circumstances of this case, I would find that the trial court abused its
       discretion in sentencing Geiger to a term of 20 years. First, while his criminally
       contemptuous conduct, refusing to testify in a first degree murder trial, was a serious offense,
       it did not constitute a violent act, nor did it hinder the prosecution of the murder defendant.
       The record established that Geiger was called to give testimony that was cumulative in nature
       and that the defendant in the murder trial was convicted without Geiger’s testimony. The
       record also established that the trial at which Geiger refused to testify was the second trial
       on that charge, and Geiger was not even called to testify in the original trial.
¶ 44        Second, while the trial court found that Geiger was fully aware of the contemptuous
       nature of his conduct, the record clearly established that he was misinformed by the court of
       the consequences of his conduct. At the time he refused to testify, Geiger was informed by


                                                 -8-
       the judge that he could receive a sentence of 180 days in jail or a “period of years.” While
       it is true that 20 years is a “period of years,” I would find it arbitrary, oppressive and unjust
       to impose a 20-year sentence after such a vague admonishment. Moreover, the record
       indicates that Geiger labored under the genuinely held but mistaken belief that he had a
       constitutional right not to testify.
¶ 45        A third basis for finding the sentence to be an abuse of discretion is the trial court’s
       finding that the defendant was not motivated, at least in part, out of a fear of retaliation. The
       record clearly established that the defendant in the murder trial was a gang member, and at
       least one other witness against that defendant had received threats. The record is also clear
       that Geiger, himself a gang member, was aware of those threats. Clearly, the threat of
       retaliation weighed on Geiger when he decided not to testify in the murder trial of a fellow
       gang member. That risk at least partially explains his actions and should have been
       considered a factor in mitigation.
¶ 46        The fourth problem with the 20-year sentence for refusing to testify at trial is that it is
       four times longer than the maximum nonextended term for perjury, which is 5 years. 720
       ILCS 5/32-2(e) (West 2008). While I recognize that courts do not engage in cross-
       comparative analyses of sentences for different crimes (People v. Sharpe, 216 Ill. 2d 481,
       519 (2005)), I nonetheless find the extreme disparity between the sentence for refusing to
       testify imposed by this court and the maximum the defendant could have received for
       testifying falsely under oath to be indicative that the sentence imposed upon Geiger in the
       instant matter did not properly weigh the nature and circumstances of the crime. See United
       States v. Gracia, 755 F.2d 984 (2d Cir. 1985); United States v. Gomez, 553 F.2d 958 (5th
       Cir. 1977).
¶ 47        Given the facts and circumstances of this matter, I would find that the trial court abused
       its discretion in imposing a 20-year sentence. I would remand the matter to the circuit court
       for imposition of an appropriate sentence.




                                                 -9-
