                                         2014 IL App (3d) 120978

                                Opinion filed October 1, 2014
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2014

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois,
            Petitioner-Appellee,                      )
                                                      )       Appeal No. 3-12-0978
            v.                                        )       Circuit No. 12-CC-22
                                                      )
     VALERIE PEREZ,                                   )       Honorable
                                                      )       Carmen Goodman,
            Respondent-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Presiding Justice Lytton concurred in the judgment and opinion.
           Justice Holdridge specially concurred, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Respondent, Valerie Perez, was in traffic court waiting to appear on a speeding ticket.

     When the court took a recess, respondent exited the courtroom and was overheard by a bailiff

     saying, “I waited all fucking morning and now she takes a break.” After the bailiff relayed the

     comment to the court, the trial judge returned to the bench and instructed the State to prepare and

     file a petition for contempt. The court denied the defense request for a short continuance to

     prepare for trial and presided over a hearing on the same date as the alleged misconduct. After
     finding respondent guilty of indirect criminal contempt, the court sentenced respondent to serve

     eight days in custody. Respondent appeals. We reverse.

¶2                                                  FACTS

¶3          On September 28, 2012, respondent was in the Will County courthouse waiting to appear

     on a speeding ticket in courtroom 304. Once the court announced it would be taking a recess,

     respondent left the courtroom. Thereafter, Bev Richardson, a bailiff assigned to another

     courtroom, courtroom 302, contacted the judge and told the court that respondent purportedly

     used profane language in the courthouse hallway while commenting on the court’s decision to

     take a break.

¶4          Based on the information communicated to the court by bailiff Richardson, the court

     returned to the bench and instructed the State to prepare a petition putting respondent on notice

     that she was being charged with indirect criminal contempt based on respondent’s conduct. The

     prosecutor responded, “Judge, normally I can’t give this to the Court. I don’t know what the

     person said. I’m sorry.” The court further advised the prosecutor that he was not required to

     have personal knowledge of the statement in order to draft the contempt petition.

¶5          The record contains an unsigned, handwritten document written on a blank form entitled

     “COURT ORDER.” The entire handwritten petition is set forth below:

                     “State files a petition for adjudication for indirect criminal contempt, and

            order[s] her to show good cause as to why she should not be held in indirect

            criminal contempt of court. *** Conduct alleged is the Defendant swore outside

            the courtroom after the Court had taken a recess, per Bailiff Bev Richardson. The

            witness indicated that the defendant said ‘now she takes a break after I’ve been

            waiting all fucking morning.’ ”



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¶6          With respondent present in the courtroom, defense counsel requested a continuance for

     counsel to research the law, answer the charge, prepare potential evidence, and investigate

     potential witnesses. Defense counsel stated respondent was entitled to be advised of the charge

     and the range of penalties, to benefit from compulsory process to present witnesses, and to

     answer the charges. Defense counsel concluded her response by stating, “It’s a criminal matter

     like any other.”

¶7          The court denied the request to schedule the hearing for another date. In so doing, the

     court said, “This is basically indirect criminal contempt. This is not criminal in nature. This is

     basically civil in nature. So we are going to hearing today. Call your first witness.”

¶8          The State called bailiff Richardson, who testified she was working as a bailiff in another

     courtroom in the Will County courthouse that morning. According to Richardson, at around

     11:30 a.m., she was standing in the hallway outside of the courtrooms when respondent exited a

     courtroom, entered the hallway, and loudly announced, “I waited all fucking morning and now

     she takes a break and I’m tired of waiting.” Richardson continued, “But then all the way down

     the hall she was using the word F, all the way down. People at the other end were looking at her.

     And I told her she could not do that in this building.” Richardson testified that after she told

     respondent not to use this type of language, “[respondent] said a few more words and she

     simmered down because I went to tell the Judge.” On cross-examination, Richardson testified

     that respondent did not direct her language toward court personnel or any person in particular.

     The defense called no witnesses.

¶9          Without allowing either attorney an opportunity for closing arguments, the court found

     respondent guilty of indirect criminal contempt. When the court asked the prosecutor for a

     sentencing recommendation, defense counsel interjected by asking if she could “make a record



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       for argument, Judge.” The court indicated it first would entertain the State’s recommendation for

       sentencing.

¶ 10          Following the State’s recitation of respondent’s lack of criminal history, defense counsel

       argued the evidence was insufficient to support a finding of guilt beyond a reasonable doubt.

       Counsel emphasized that her client did not direct her language toward anyone in particular and

       did not disrupt any court proceedings. When defense counsel began to conclude her closing

       argument, the following exchange took place between the court and defense counsel:

                         “[Defense counsel]: *** And so I would ask the Court—I don’t believe

              it’s been proven beyond a reasonable doubt that she has committed indirect

              criminal contempt.

                         THE COURT: The Court’s understanding is preponderance of the

              evidence.

                         [Defense Counsel]: I believe it is beyond a reasonable doubt, Judge.

                         THE COURT: Okay. Well, that’s because you are looking at it from a

              criminal [perspective]. This is a quasi criminal case. It’s civil in nature, and the

              standard here is the preponderance of the evidence. In other words, she doesn’t

              do something that she was told to do. This was an outburst, and that’s the way I

              see it.”

¶ 11          The court made the following observations before sentencing respondent to serve eight

       days in jail, with day-for-day credit:

                         “It was disruptive to my court and the administration of justice because I

              had to go and stop whatever that I was doing in order to–and I had to get back in

              here and I had two hearings in order to hear about the fact that [respondent] felt like


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               she was inconvenienced once I took a break. I had 115 cases on my call.” ***

                       And the words that were used were very disrespectful to what I try to do

               here each and every day. *** I find you in indirect–well, it’s criminal contempt.

               If you want to say beyond a reasonable doubt, beyond a reasonable doubt if that’s

               the standard, we will find that beyond a reasonable doubt.”

¶ 12           Respondent filed a timely motion for a new trial alleging several errors, including: (1)

       the denial of her rights to a fair trial, due process, and equal protection; (2) insufficient notice of

       the contempt hearing; (3) the improper shifting of the burden of proof to her to show cause; (4)

       the denial of an opportunity to answer the charge by conducting discovery, seeking witnesses,

       and conducting research prior to the hearing; (5) the failure of the evidence to show she was

       guilty beyond a reasonable doubt; and (6) violation of her first amendment rights by the court’s

       finding of contempt. The court denied the motion for new trial.

¶ 13           Respondent appeals.

¶ 14                                           ANALYSIS

¶ 15           On appeal, respondent raises two issues. First, she argues the finding of guilt must be

       reversed because the evidence was insufficient to prove her guilty of indirect criminal contempt

       beyond a reasonable doubt. Alternatively, if this court concludes the evidence was sufficient,

       respondent argues the judgment should be vacated and the matter remanded for a new trial

       because the trial court violated her constitutional right to procedural due process on several

       grounds.

¶ 16           The State agrees the proceedings may have been procedurally flawed, but submits the

       evidence was sufficient to support the allegation of indirect criminal contempt. Consequently,

       the State contends the matter should be remanded for a new trial.



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¶ 17          For purposes of this appeal, the parties agree respondent was convicted of, and sentenced

       for, criminal, rather than civil, contempt. Criminal contempt arises from “conduct that is

       calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate

       from the court’s authority or dignity, or to bring the administration of the law into disrepute.”

       People v. Ernest, 141 Ill. 2d 412, 421 (1990).

¶ 18          Direct criminal contempt involves a defiant or disrespectful verbal or nonverbal act

       which takes place in the courtroom and is witnessed by the judge. People v. Jashunsky, 51 Ill. 2d

       220, 223 (1972). Neither a formal charge nor an evidentiary hearing must precede a hearing on

       direct criminal contempt because the misconduct was actually observed by the court and the

       relevant facts lie within the court’s personal knowledge. See People v. L.A.S., 111 Ill. 2d 539,

       543 (1986) (“Direct criminal contempt may be found and punished summarily because all

       elements are before the court and, therefore, come within its own immediate knowledge.”).

¶ 19          Unlike direct criminal contempt, indirect criminal contempt is based on conduct the court

       has not personally witnessed. Therefore, indirect criminal contempt should not be adjudicated in

       a summary proceeding initiated by the judge. Instead, indirect criminal contempt proceedings

       are initiated by a petitioner’s written request for an adjudication of indirect criminal contempt.

¶ 20          A charge of indirect criminal contempt gives rise to similar procedural safeguards as

       those required in criminal proceedings. People v. Lindsey, 199 Ill. 2d 460, 471 (2002). For

       example, a respondent in an indirect criminal contempt proceeding has the right to be advised of

       the nature of the charge, to be presumed innocent, to require proof beyond a reasonable doubt,

       and to invoke the privilege against self-incrimination. People v. Covington, 395 Ill. App. 3d 996,

       1007 (2009).




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¶ 21          Typically, a routine petition requesting the adjudication of indirect criminal contempt is

       based on an assertion that the accused was aware of a valid court order and willfully ignored the

       mandates of the court order. See, e.g., People ex rel. City of Chicago v. Le Mirage, Inc., 2013 IL

       113482. In unusual situations, an allegation of indirect criminal contempt may be levied against

       the accused for a verbal or nonverbal act that was allegedly disrespectful to the court’s authority,

       but not witnessed by the judge, rather than a violation of an existing court order. See, e.g., In re

       Marriage of Madary, 166 Ill. App. 3d 103 (1988) (respondent guilty of indirect criminal

       contempt for spitting on the petitioner while exiting the courtroom).

¶ 22          In this case, the trial court seemed to recognize that respondent’s verbal outburst during a

       court recess could not be summarily adjudicated as direct criminal contempt because the court

       did not observe the alleged contemptuous conduct at issue. See Jashunsky, 51 Ill. 2d at 223.

       Consequently, after learning about respondent’s conduct from bailiff Richardson, the court

       returned to the bench and instructed the prosecutor to prepare a charging instrument for indirect

       criminal contempt. The court then directed the prosecutor to provide respondent with notice by

       delivering a copy of the petition to respondent’s counsel. In spite of this notice by written

       petition, the State concedes multiple other due process difficulties may be present in this record

       warranting, at the very least, a new hearing. We agree.

¶ 23          First, the case law provides that “a petition initiating indirect criminal contempt

       proceedings ought not have the title ‘Petition for Rule To Show Cause,’ ” since this language

       applies only in proceedings for indirect civil contempt and impermissibly shifts the burden of

       proof to respondent. In re Marriage of Betts, 200 Ill. App. 3d 26, 58-59 (1990). In fact, the

       inartfully drafted petition prepared by the prosecutor directed respondent to “show cause” and

       created a great deal of confusion for the court concerning the proper burden of proof.



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¶ 24          Second, the court’s decision to deny defense counsel’s request for a continuance creates

       serious due process concerns. After denying the request for a continuance, without inquiring

       whether the State objected to the request, the court held a hearing on the merits on the same day

       as the alleged contemptuous act. This decision by the court may have deprived respondent of her

       due process right to have notice of the indirect criminal contempt hearing “within a reasonable

       time in advance of the hearing.” Betts, 200 Ill. App. 3d at 53.

¶ 25          In addition, the record reveals the State’s only witness spoke directly to the court about

       the incident prior to the hearing. We respectfully suggest a judge in this situation may consider

       voluntary recusal after discussing the incident with an eyewitness. See Ill. S. Ct. R. 61 (eff. Oct.

       15, 1993); see also Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (Due process requires

       another judge to determine the issue of contempt if the judicial target of the verbal commentary

       becomes “personally embroiled” in the conflict. (Internal quotation marks omitted.))

¶ 26          Yet, in spite of the procedural due process irregularities identified above, the sufficiency

       of the evidence dictates the appropriate remedy on appeal. As the State argues, if the evidence

       was sufficient to support the court’s finding of indirect criminal contempt, the proper remedy

       requires this court to vacate respondent’s conviction and remand for further proceedings,

       allowing for procedural due process. See People v. Lopez, 229 Ill. 2d 322, 367 (2008).

       However, if the evidence was not sufficient to establish indirect criminal contempt, then we must

       reverse respondent’s conviction outright, based on the principles of double jeopardy. Id.

¶ 27          On appeal, the test for determining the sufficiency of the evidence is whether any rational

       trier of fact could have found the essential elements of the charge beyond a reasonable doubt,

       viewing the evidence in the light most favorable to the State. People v. Wheeler, 226 Ill. 2d 92,

       114 (2007). We first consider the court’s findings of fact.



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¶ 28          In this case, the trial judge found “the words that were used were very disrespectful to

       what I try to do here each and every day.” As previously stated, a verbal or nonverbal act may

       qualify as an act of indirect criminal contempt in certain situations. Based on the judge’s remark,

       it appears the court found respondent intended to embarrass the judge or bring her method of the

       administration of the law into disrepute.

¶ 29          Viewing respondent’s words in the light most favorable to the State, we are unable to

       conclude the evidence proved respondent intended to embarrass the judge, since respondent did

       not communicate this statement directly to the judge or identify the judge by name while in the

       hallway. In addition, the bailiff’s testimony established respondent did not use profanity when

       referring to the judge as “she.” Instead, respondent complained the respondent was tired of

       waiting all “f*** morning.” Since the bailiff testified respondent entered the hallway after the

       court recessed, at 11:30 a.m., there seems to be an element of truthfulness to respondent’s

       declaration and verbalized frustration. These remarks about the additional delay resulting from

       the recess may constitute protected speech under the first amendment. See New York Times Co.

       v. Sullivan, 376 U.S. 254, 272-73 (1964) (“[T]his Court has held that concern for the dignity and

       reputation of the courts does not justify the punishment as criminal contempt of criticism of the

       judge or his decision.”).

¶ 30          After the State rested its case, the court seemed to make another finding when it

       announced, “In other words, she [did not] do something that she was told to do. This was an

       outburst, and that’s the way I see it.” The record on appeal does not support the court’s finding

       the outburst took place after respondent did not “do something that she was told to do.”

¶ 31          In this case, the petitioner did not allege respondent disobeyed a court order on the date in

       question. Further, the State did not present any evidence of the existence of a court order



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       requiring respondent to behave in a certain fashion in the hallway. Finally, the bailiff testified

       that once she told respondent not to use profanity, respondent “simmered” down. Hence, the

       evidence did not establish respondent disobeyed the directive of the court or an officer of the

       court on the day in question.

¶ 32          Consequently, viewing the evidence in the light most favorable to the State after

       considering the multiple ways a respondent may commit indirect criminal contempt, we

       conclude the State’s evidence did not establish respondent was guilty of indirect criminal

       contempt beyond a reasonable doubt. Accordingly, we reverse respondent’s conviction.

¶ 33                                          CONCLUSION

¶ 34          The judgment of the circuit court of Will County is reversed.

¶ 35          Reversed.

& 36          JUSTICE HOLDRIDGE, specially concurring.

& 37          This is a straightforward case. The only thing we need to decide is whether, taken in the

       light most favorable to the State, the evidence was sufficient to sustain a conviction for indirect

       criminal contempt. Like the majority, I believe that it was not. I would reverse the defendant's

       conviction on that basis alone. I find it unnecessary to address any facts or issues relating to

       procedural due process.




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