                                  Illinois Official Reports

                                          Appellate Court



                         People v. Perez-Gonzalez, 2014 IL App (2d) 120946



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee,
Caption                      v. RAUL PEREZ-GONZALEZ, Respondent-Appellant.


District & No.               Second District
                             Docket No. 2-12-0946


Filed                        June 26, 2014
Rehearing denied             July 24, 2014


Held                         On appeal from defendant’s conviction for direct contempt based on
(Note: This syllabus         his refusal to testify against a codefendant in a prosecution for a
constitutes no part of the   drive-by shooting, the appellate court rejected defendant’s contention
opinion of the court but     that the prosecution of defendant for direct contempt violated his plea
has been prepared by the     agreement, since defendant’s plea agreement required that he testify
Reporter of Decisions        against the codefendant, the agreement did not limit the sanctions for
for the convenience of       defendant’s refusal to testify to the vacation of the 15-year sentence
the reader.)                 enhancement for using a firearm, the trial court did not err in denying
                             defendant’s motion for substitution of judge where the motion named
                             two judges, not just one judge as provided by the statute, and the
                             10-year sentence was not an abuse of discretion, especially when
                             defendant’s refusal to testify prevented the State from proving the
                             codefendant was the shooter and was subject to the statutory 25-year
                             enhancement of his sentence.



Decision Under               Appeal from the Circuit Court of Kane County, No. 11-CC-42; the
Review                       Hon. David R. Akemann and the Hon. James C. Hallock, Judges,
                             presiding.



Judgment                     Affirmed.
     Counsel on               Thomas A. Lilien and Paul J. Glaser, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                              Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.




     Panel                    JUSTICE SCHOSTOK delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Burke and Justice Birkett concurred in the judgment
                              and opinion.




                                               OPINION

¶1         The respondent, Raul Perez-Gonzalez, was convicted of direct criminal contempt of court
       and subsequently sentenced to 10 years’ imprisonment. On appeal, the respondent argues that
       (1) the State’s petition for contempt violated his plea agreement, (2) his refusal to testify was
       not punishable as contempt, (3) the trial court erred in denying his motion for substitution of
       judge, and (4) his sentence was excessive. We affirm.

¶2                                            BACKGROUND
¶3          On January 29, 2009, a woman was fatally shot as she drove her car in Elgin. The day after
       the incident, the respondent admitted to the police that he was driving the sport utility vehicle
       (SUV) from which the shots were fired and that the shooting was gang-related. The respondent
       identified four other people who were inside the SUV with him at the time of the murder. The
       respondent was charged with first-degree murder under a theory of accountability, as was
       Manith Vilayhong, the passenger who ordered the shooting. Tony Rosalez was charged with
       first-degree murder as the alleged shooter.
¶4          In 2010, the respondent entered into a plea agreement with the State. In return for pleading
       guilty, the respondent was sentenced to 35 years’ imprisonment, with an agreement that, after
       he testified against Vilayhong and Rosalez, the State, at its sole discretion, would vacate or
       delete the charge’s reference to a firearm and would request that the 15-year firearm
       enhancement be vacated from his sentence. The respondent would thereby end up with a
       20-year sentence.
¶5          On October 28, 2011, the State appeared in court for a status hearing on the case against
       Rosalez. The State asserted that the Rosalez trial was set to begin the following Monday and
       that it appeared that the respondent was planning to refuse to testify. The State requested that
       the respondent be brought before the court, placed under oath, and asked whether he intended
       to testify against Rosalez. The trial court granted the request and the respondent appeared with


                                                   -2-
     counsel. Upon questioning by the State as to whether he knew Rosalez or drove a white SUV
     on January 30, 2009, the respondent answered “No.” After a recess, the respondent’s counsel
     explained that the respondent’s stated response was not in relation to the question asked but
     was an indication that he did not want to answer any questions. The respondent then testified
     that “no” meant that he did not want to answer any questions.
¶6       The State then asked the respondent if he was driving an SUV on January 30, 2009, when
     Rosalez shot a gun out the window toward another vehicle. The respondent stated that he was
     not going to answer the question. The State then questioned the respondent as to whether he
     intended to refuse to answer any questions related to the shooting on January 30, 2009. The
     respondent answered “yes.” The following colloquy ensued:
                  MR. SAMS [Assistant State’s Attorney]: Judge, I would ask that you admonish the
             [respondent] or that you order him to testify as he has asserted and has no right to
             decline to answer questions.
                  THE COURT: Ms. Yetter?
                  MS. YETTER [Defense Counsel]: Your Honor, I don’t take a position on the
             State’s request.
                  THE COURT: Okay, he isn’t called as a witness in a case at this point, correct?
             This inquiry is so you can determine what you want to do Monday, correct?
                  MR. SAMS: Well, Judge, assuming with that, with his refusal to testify, Judge, I
             think I believe that I need for you to order him to testify.
                  Once he then continues to refuse to testify, we will deal with his case and his issue;
             but that’s going to prompt me on Mr. Rozalez’s [sic] case this afternoon to file a motion
             to continue.
                  THE COURT: That would be the court’s order, sir, directing you to answer the
             question posited by Mr. Sams. So this is the court’s order that you answer the
             questions, sir.
                  Do you wish to have the question read again?
                  THE WITNESS: No, because I’m not gonna answer.
                  THE COURT: All right, sir, the court would find you in direct contempt.
                  Remove that person right now.”
     The State then indicated its intent to file a petition seeking to have the respondent adjudicated
     in direct criminal contempt.
¶7       On November 11, 2011, the State filed its petition for adjudication of direct criminal
     contempt. The petition stated that on October 28, 2011, the respondent “refused to testify
     despite the Court’s order and persists in that refusal to testify.” The State noted in the petition
     that there was no maximum penalty for contempt and that it would be pursuing a sentence in
     excess of six months.
¶8       On January 3, 2012, Judge David Akemann vacated his October 28, 2011, order of
     contempt and recused himself from the case, finding that he might be a witness in the
     proceedings. The case was reassigned that same day to Judge James Hallock. Also on that day,
     the respondent filed a motion for substitution of judge, pursuant to section 114-5(a) of the
     Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/114-5(a) (West 2010)),
     requesting that his case be reassigned to a judge other than Judges Hallock and Patricia Piper


                                                  -3-
       Golden. On January 6, 2012, a hearing was held on the motion for substitution of judge. The
       State argued that this was a contempt case, which is considered neither civil nor criminal, and
       that the respondent was not entitled to a substitution of judge as of right. The respondent
       argued that the penalty being sought in this case was so severe that it was akin to a criminal
       case and that the respondent was entitled to a substitution of judge as of right just like any other
       criminal defendant. On January 20, 2012, the trial court denied the motion for substitution of
       judge, finding that a substitution of judge as of right was not available in a contempt
       proceeding.
¶9          On February 22, 2012, the respondent waived his right to a jury trial and the parties entered
       a written stipulation of evidence. Pursuant to that stipulation, the respondent acknowledged
       that he entered a plea agreement with the State as to his first-degree murder charge and that the
       agreement “required [the respondent] to testify truthfully in any case against any
       co-defendant.” He further acknowledged that on October 28, 2011, after having been sworn at
       the final pretrial hearing in the Rosalez case, he refused to answer any of the State’s questions.
       Although the respondent stipulated to the evidence, he did not stipulate that the evidence
       supported a finding of contempt.
¶ 10        On March 22, 2012, a hearing was held on the contempt petition. On May 2, 2012, the trial
       court found that the respondent was in contempt on October 28, 2011, for failing to testify in
       the Rosalez case as ordered by the trial court. The trial court ordered a presentence
       investigation report.
¶ 11        On June 28, 2012, following the denial of the respondent’s motion to reconsider the
       contempt finding, a sentencing hearing was held. The State submitted a written stipulation
       signed by the parties. Pursuant to that stipulation:
                “Before going to trial, the respondent entered into an agreement with the People of the
                State of Illinois to testify against *** Rosalez. The [plea] agreement required the
                [respondent to] give truthful testimony [in the case against Rosalez]. He would be
                sentenced to the minimum sentence of 20 years in prison plus the 15-year add-on.
                When he completed his end of the agreement, his sentence would be reduced to 20
                years.”
       The stipulation also indicated that the State proceeded in the case against Rosalez without the
       respondent’s testimony. The other passengers testified to what occurred in the SUV, but they
       either were impeached or gave inconsistent statements. Rosalez was found guilty of
       first-degree murder, but the jury found not proven the allegation that Rosalez personally
       discharged the firearm. Rosalez was sentenced to 35 years in prison.
¶ 12        Following testimony and arguments of counsel, the trial court rendered its ruling. In
       mitigation, the trial court noted that the respondent’s failure to testify did not cause or threaten
       physical harm. The trial court also considered that the respondent, other than his conviction of
       first-degree murder, did not have any criminal history. In aggravation, the trial court noted that
       the respondent’s refusal to testify hindered the State’s prosecution of Rosalez. The trial court
       found that the respondent’s sentence should serve as a deterrent to other similar conduct. The
       trial court thus sentenced the respondent to 10 years’ imprisonment, consecutive to his term for
       first-degree murder. Following the denial of the respondent’s motion to reconsider, the
       respondent filed a timely notice of appeal.



                                                    -4-
¶ 13                                             ANALYSIS
¶ 14       The respondent’s first contention on appeal is that the filing of the petition for adjudication
       of contempt violated the terms of his plea agreement. Specifically, the respondent argues that
       the State breached the plea agreement when it sought a contempt finding based on the
       respondent’s failure to testify against Rosalez. The respondent notes that People v. Goodwin,
       148 Ill. App. 3d 56 (1986), supports a finding of contempt based on a defendant’s refusal to
       testify pursuant to a plea agreement. See id. at 61 (a defendant who promises, as a part of a plea
       agreement, to give testimony in aid of the prosecution waives fifth amendment rights in that
       respect and is subject to a contempt sanction for refusal to do so). The respondent argues,
       however, that Goodwin is distinguishable because, unlike in the present case, in Goodwin there
       was no predetermined consequence in the event of noncompliance. Specifically, in the present
       case, the respondent’s failure to comply meant that the State would not move to vacate the
       15-year add-on.
¶ 15       Both the State and the defendant are bound by terms of a plea agreement. People v.
       Whitfield, 217 Ill. 2d 177, 190 (2005). Plea agreements are governed to some extent by
       principles of contract law. People v. Evans, 174 Ill. 2d 320, 326 (1996). However, plea
       agreements are constitutionally based and therefore “reflect[ ] concerns that differ
       fundamentally from and run wider than those of commercial contract law.” (Internal quotation
       marks omitted.) Id. For example, if a plea of guilty is entered in reliance on a plea agreement, a
       defendant may have a due process right to enforce the agreement. Whitfield, 217 Ill. 2d at 189.
       As such, the application of contract law to plea agreements may require modification in some
       instances. Evans, 174 Ill. 2d at 326-27. The construction or interpretation of a contract and its
       legal effect presents a question of law, which we review de novo. Avery v. State Farm Mutual
       Automobile Insurance Co., 216 Ill. 2d 100, 129 (2005).
¶ 16       In the present case, the State’s petition for adjudication of contempt did not violate the plea
       agreement. The parties stipulated to the content of the plea agreement. Further, pursuant to our
       request, the respondent supplemented the record with a transcript of his 2010 guilty plea
       hearing. Moreover, the State supplemented the record with a copy of the written plea offer. The
       discussion of the plea agreement at that hearing and the written plea offer are in consonance
       with the stipulations entered by the parties. The February 22, 2012, stipulation stated that the
       plea agreement “required” the respondent to testify “in any case against any co-defendant.”
       The June 28, 2012, stipulation stated that the plea agreement “required” the respondent to give
       truthful testimony against Rosalez. The October 28, 2011, hearing was part of the “case”
       against Rosalez. Accordingly, based on the stipulations, the plea agreement clearly required
       the respondent to testify against Rosalez at that hearing and his failure to do so violated that
       agreement.
¶ 17       The respondent notes that at the October 28, 2011, hearing, the State described the plea
       agreement as follows:
                    “[The respondent’s] plea agreement was he–was he pled guilty to first degree
                murder; was sentenced to 35 years with an agreement that when he completed his
                cooperation in this case, at the sole discretion of the State, we would ask the court to
                vacate the 15-year add-on in his case, and he would end up with a 20-year sentence on
                his case as opposed to 35.”
       The respondent argues that the plea agreement had a built-in sanction (if he refused to testify
       the State would not move to vacate the 15-year add-on) and that the State’s petition for

                                                    -5-
       contempt was a further sanction that was contrary to the agreement. We disagree. Nothing in
       the stipulations or at the October 2011 hearing supports this argument. The stipulations do not
       indicate that the State agreed that the only consequence for the respondent’s failure to testify
       would be the State’s not moving to vacate the 15-year add-on. The statement at the October
       2011 hearing indicates that the plea agreement was in exchange for the respondent’s testimony
       and that, when he completed his testimony, the State could, in its discretion, move to vacate the
       15-year add-on. As the plea agreement required the respondent to testify at the Rosalez trial,
       the State did not violate the agreement by petitioning for an adjudication of contempt when he
       refused to testify. Goodwin, 148 Ill. App. 3d at 61.
¶ 18        Moreover, even if we were to view the plea agreement as containing a built-in sanction
       and, therefore, the State as having breached the agreement by petitioning for an adjudication of
       contempt, it would still not provide a defense for the respondent to the charge of contempt.
       “The public is entitled to any man’s evidence concerning criminal acts committed by another.”
       United States v. Patrick, 542 F.2d 381, 388 (7th Cir. 1976). Here, the court ordered the
       respondent to testify at the October 28, 2011, hearing and the court was empowered to compel
       his testimony. See id. Accordingly, even if the State had breached the plea agreement, the
       breach would not have authorized the respondent to refuse the court’s order to testify at the
       October 28, 2011, hearing. See United States v. Simmons, 215 F.3d 737, 741 (7th Cir. 2000)
       (holding that even if the government breached the plea agreement, the defendant should have
       testified as ordered by the court and brought a separate action to enforce the terms of the plea
       agreement).
¶ 19        The respondent next argues that his refusal to answer questions at the pretrial hearing was
       not punishable as contempt, because the plea agreement required him to testify at Rosalez’s
       trial, and the October 28, 2011, hearing was not the trial. In arguing that the respondent was
       properly found in contempt prior to Rosalez’s trial, the State relies on People v. Powers, 122
       Ill. App. 3d 629 (1984). In Powers, the defendant was being prosecuted for arson. His attorney
       filed a motion for a temporary restraining order (TRO) to prevent the State from using certain
       testimony obtained in a grand jury proceeding. The trial court denied the TRO and set the
       matter for trial. The attorney filed an interlocutory appeal. Id. at 629-30.
¶ 20        Just prior to the start of trial, the attorney argued that the interlocutory appeal divested the
       trial court of jurisdiction and, therefore, neither he nor his client would participate in the trial.
       The trial court granted a motion by the State to quash the appeal because the defendant did not
       have a right to an interlocutory appeal in a criminal case. Id. at 630. The trial court warned the
       attorney that, if he did not participate in the trial, he would be held in contempt. The attorney
       refused to comply with the judge’s request and was thus held in direct criminal contempt of
       court. Id. The attorney appealed. Id. The reviewing court affirmed the finding of contempt:
                “Here, we have a case of direct criminal contempt. The lawyer and judge were face to
                face shortly before trial. [The trial court] explicitly instructed [the attorney] that if he
                did not participate in the trial, he would be held in contempt. [The attorney]
                deliberately chose not to respect the wishes of the court and prevented the court from
                holding the trial. Such an act by a lawyer can be characterized as nothing other than
                conduct calculated to hinder or obstruct a court in its administration of justice, or to
                derogate from its authority or dignity. [Citation.] Thus, it was criminally
                contemptuous.” Id. at 631.


                                                     -6-
¶ 21       We find the State’s reliance on Powers persuasive. Powers demonstrates that a finding of
       criminal contempt is proper based on actions that occur before a trial begins and cause a delay
       in the trial. In the present case, the respondent’s refusal to testify resulted in a delay of
       Rosalez’s trial. Although as in Powers the trial had not yet begun, the respondent was called
       and ordered to testify at the final pretrial hearing and his failure to testify resulted in the State’s
       having to file a motion to continue. The State’s petition indicated that the respondent
       “persist[ed]” in his refusal to testify. We note that Rosalez was not tried until early 2012. The
       record demonstrates that during the pendency of these contempt proceedings the respondent
       never changed his mind about refusing to testify and that in fact he never testified at the
       Rosalez trial. As in Powers, the respondent’s conduct clearly qualified as criminal contempt.
       See also United States v. Johnson, 752 F.2d 206, 210 (6th Cir. 1985) (the refusal to testify at a
       pretrial deposition hearing was not anticipatory contempt; rather, it was a present refusal to
       testify at the proceeding itself and was a proper basis for a contempt finding).
¶ 22       In so ruling, we find the respondent’s reliance on State v. Matos, 640 A.2d 1176 (N.J.
       Super. Ct. App. Div. 1994), unpersuasive. Matos involved the question of whether a witness
       could be held in civil contempt of court based on a statement that he intended not to testify. In
       Matos, the State sought and the trial court approved a grant of immunity in order to compel the
       defendant to testify against his codefendants. The trial court held the defendant in contempt
       when the defendant stated at a hearing that he did not intend to testify despite the grant of
       immunity. The defendant appealed from the contempt finding. The reviewing court reversed
       the contempt finding and held that “[d]efendant should not have been adjudged guilty of
       contempt in anticipation of his future refusal ‘to answer a question’ not yet formulated or asked
       of him.” Id. at 1184.
¶ 23       The Matos court’s determination was based on an interpretation of a statute that
       specifically related to finding an individual in contempt when immunity had been given. The
       statute provided that in any criminal proceeding before a court or grand jury: “If a person
       refuses to testify after being granted immunity from prosecution and after being ordered to
       testify as aforesaid, he may be adjudged in contempt and committed to the county jail until
       such time as he purges himself of contempt by testifying as ordered ***.” (Emphases in
       original.) Id. at 1181. The court thus asserted that its decision turned on whether the hearing at
       which the defendant stated that he did not intend to testify and was adjudged in contempt
       constituted “criminal proceedings before a court or grand jury” as required by the statute.
       (Internal quotation marks omitted.) Id. at 1182. The hearing was not the codefendant’s trial.
       Rather, the hearing was held solely for the purpose of determining whether the defendant was
       going to testify at the codefendant’s trial at some unspecified time in the future. The court held,
       therefore, that the hearing did not fall within the statutory requirement of a criminal
       proceeding, nor did the defendant’s conduct fit within the conduct to be punished, i.e., refusal
       to testify.
¶ 24       Matos is distinguishable from the present case. First, Matos dealt with the interpretation of
       a statute not at issue in this case. Further, the Matos defendant was merely asked if he intended
       to comply with the court order to testify at some unspecified time in the future. In the present
       case, the respondent was brought before the court at the final pretrial hearing on the Rosalez
       case, placed under oath, and asked the questions he was going to be asked at trial. The court
       ordered the respondent to answer those questions at that time. The respondent stated that he
       had no intention of answering any questions asked by the prosecutor. Thus, unlike in Matos,


                                                      -7-
       the respondent was ordered to testify at the hearing that resulted in his adjudication of
       contempt.
¶ 25       Further, Matos involved a finding of civil contempt and the holding was based on the
       rationale that such a coercive sanction could not be imposed where the time for performance
       had not yet arrived. Civil contempt involves sanctions that are prospective and seek to coerce
       particular conduct. People v. R.J. Reynolds Tobacco Co., 2011 IL App (1st) 101736, ¶ 33.
       Criminal contempt is designed to punish past conduct. Id. In the present case, the respondent
       was found in criminal contempt for failing to testify as agreed to in his plea agreement and as
       ordered by the trial court.
¶ 26       The respondent’s next contention on appeal is that the trial court erred in denying his
       motion for substitution of judge. The respondent had filed his motion for substitution pursuant
       to section 114-5(a) of the Code (725 ILCS 5/114-5(a) (West 2010)), which provides:
                    “§ 114-5. Substitution of judge. (a) Within 10 days after a cause involving only one
               defendant has been placed on the trial call of a judge the defendant may move the court
               in writing for a substitution of that judge on the ground that such judge is so prejudiced
               against him that he cannot receive a fair trial. Upon the filing of such a motion the court
               shall proceed no further in the cause but shall transfer it to another judge not named in
               the motion. The defendant may name only one judge as prejudiced, pursuant to this
               subsection; provided, however, that in a case in which the offense charged is a Class X
               felony or may be punished by death or life imprisonment, the defendant may name two
               judges as prejudiced.”
¶ 27       The parties disagree as to whether section 114-5(a) of the Code is applicable to criminal
       contempt proceedings. In People v. Doss, 382 Ill. 307 (1943), a case involving indirect
       criminal contempt, our supreme court noted that the venue statute allowed for only one change
       of venue and that, because the defendant had already been granted two requests for change of
       venue, his third request was properly denied. Id. at 311. The court went on to note that “there is
       respectable authority for the proposition that statutory provisions relative to change of venue
       do not apply to proceedings to punish contempts, unless such proceedings are expressly
       included, eo nomine, in the statute.” Id. “The reason assigned for inapplicability of change of
       venue statutes to contempt proceedings is that a contempt is neither civil nor criminal in fact,
       but sui generis.” Id. at 311-12.
¶ 28       Doss was subsequently cited in another indirect-criminal-contempt case for the proposition
       that the statute allowing for substitution of judge as of right in a criminal case does not apply to
       criminal contempt proceedings. See People v. Parker, 397 Ill. 305, 308 (1947). In Parker, our
       supreme court stated:
               “The petition for change of venue on account of prejudice of two of the judges does not
               come within the provisions of the venue statute in contempt proceedings. (Ill. Rev. Stat.
               1945, chap. 146, par. 21a [allowing for substitution of judge ‘in contempt proceedings
               [only] from judge impugned’].) The right to change of venue is statutory, and the
               applicant must bring himself within the statutory requirements. [Citation.] No other
               provision for change of venue in contempt cases appears in the statute.” Id. (citing Doss
               for the proposition that “the general statute pertaining to change of venue in criminal
               cases” does not apply to criminal contempt proceedings, which are sui generis).
       Accordingly, the court held that the criminal statute relating to change of venue, or substitution
       of judge as of right, did not apply in criminal contempt proceedings.

                                                    -8-
¶ 29        However, in People v. Goss, 10 Ill. 2d 533, 548 (1957), a case that involved indirect
       criminal contempt, our supreme court found that the statute that allowed for substitution of
       judge as of right by the filing of an affidavit of prejudice (Ill. Rev. Stat. 1955, ch. 146, ¶ 21
       (now 725 ILCS 5/114-5(a) (West 2010))) was applicable to a criminal contempt proceeding
       and that the trial court erred when it denied the defendant’s request for change of venue.
       Further, in People ex rel. Kunce v. Hogan, 67 Ill. 2d 55, 62 (1977), a more recent case
       involving direct criminal contempt, the defendant argued that the trial court erred in denying
       his motion for substitution of judge. In response, our supreme court stated:
                    “Section 114-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch.
                38, par. 114-5) provides that in criminal cases there is an absolute right to a substitution
                of judges from two judges on general allegations of prejudice. The statute also provides
                for an unlimited number of substitution of judges for cause.” Id. at 63.
       Our supreme court held that the denial was proper–not because the statute was not
       inapplicable, but because the motion did not comply with the statute. Id. Specifically, by
       requesting disqualification of all the judges in the circuit, the motion named more judges than
       authorized by the statute, which allowed the naming of only two judges. Id. Kunce and Goss
       have since been cited for the proposition that substitution of judge as of right under section
       114-5(a) of the Code is applicable in criminal contempt proceedings. See Payne v.
       Coates-Miller, Inc., 68 Ill. App. 3d 601, 608 n.4 (1979) (citing Kunce); People v. Wright, 20
       Ill. App. 3d 96, 103 (1974) (citing Goss); see also Hoga v. Clark, 113 Ill. App. 3d 1050, 1059
       (1983) (citing Payne and Wright for this proposition); SKS & Associates, Inc. v. Dart, 2012 IL
       App (1st) 103504, ¶ 21 (citing Hoga).
¶ 30        Based on the foregoing authority, we find that the case law is not clear, as neither Kunce
       nor Goss acknowledged Doss and Parker. Nonetheless, Kunce and Goss are our supreme
       court’s most recent word on this issue, and we therefore follow them. See People v. Perkins,
       367 Ill. App. 3d 895, 905 (2006). Accordingly, the trial court was incorrect when it stated that
       substitution of judge as of right pursuant to section 114-5(a) was not available in a criminal
       contempt proceeding.
¶ 31        Nonetheless, we may affirm on any basis appearing in the record. See People v. Dinelli,
       217 Ill. 2d 387, 403 (2005) (noting that an appeals court may affirm a trial court’s ruling on any
       basis appearing in the record). In the present case, although the trial court’s reasoning might
       have been improper, it did not err in denying the motion for substitution of judge, because the
       respondent’s motion was not in proper form. The respondent’s motion named two
       judges–Judge Hallock and Judge Golden–rather than one judge as allowed for in the statute.
       See 725 ILCS 5/114-5(a) (West 2010). The failure to file such a motion in proper form is a
       sufficient basis on which to deny the motion. People v. Saunders, 135 Ill. App. 3d 594, 600
       (1985) (citing Kunce, 67 Ill. 2d at 63).
¶ 32        The respondent notes that contempt has no sentencing guidelines (People v. Geiger, 2012
       IL 113181, ¶ 27), and he argues that therefore it is possibly punishable by death or life
       imprisonment. Thus, he reasons, he was permitted to name two judges in his motion. In so
       arguing, the respondent is relying on the portion of the statute indicating that “in a case in
       which the offense charged is a Class X felony or may be punished by death or life
       imprisonment, the defendant may name two judges as prejudiced.” 725 ILCS 5/114-5(a) (West
       2010).


                                                     -9-
¶ 33        The respondent correctly cites Geiger for the proposition that contempt has no sentencing
       classification or sentencing range set by the legislature. Geiger, 2012 IL 113181, ¶ 24.
       Accordingly, it is axiomatic that contempt is not a Class X felony. Id.; see also 730 ILCS
       5/5-4.5-25 (West 2010) (setting forth the sentencing guidelines for a Class X felony). The
       question then is whether contempt “may be punished by death or life imprisonment” (725
       ILCS 5/114-5(a) (West 2010)). Although contempt has no statutory sentencing guidelines, a
       trial court is bound by certain principles when sentencing for contempt. Criminal contempt is
       punishable by fine or imprisonment or both. Bloom v. Illinois, 391 U.S. 194, 201 (1968).
       However, a sentence of imprisonment must not be “greatly at variance with the spirit and
       purpose of the law, or manifestly disproportionate to the nature of the offense.” (Internal
       quotation marks omitted.) People v. Alexander, 239 Ill. 2d 205, 212 (2010) (quoting People v.
       Stacey, 193 Ill. 2d 203, 210 (2000)). Further, the punishment for contempt should reflect the
       least possible power adequate to the end proposed. United States v. Bukowski, 435 F.2d 1094,
       1110 (7th Cir. 1970). Based on these principles, a sentence of death for contempt is not
       permissible. Bloom, 391 U.S. at 201. Further, a sentence of life imprisonment for contempt,
       under the present circumstances, would be disproportionate to the nature of the offense. See
       Geiger, 2012 IL 113181, ¶ 29 (supreme court held that a 20-year sentence for criminal
       contempt, based on a defendant’s refusal to testify as a State’s witness in double murder
       prosecution, was manifestly disproportionate to the nature of the offense). Accordingly, we
       reject the respondent’s argument that he was entitled to name two judges in his motion.
¶ 34        The respondent’s final contention on appeal is that his sentence of 10 years’ imprisonment
       constituted an abuse of discretion. A sentence imposed for direct criminal contempt is
       reviewed for an abuse of discretion. Id. ¶ 27. A court abuses its discretion when a sentence
       varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the
       nature of the offense. Id. A reviewing court must give great deference to a trial court’s sentence
       because the trial judge, having observed the defendant and the proceedings, is in a better
       position to consider “the defendant’s credibility, demeanor, moral character, mentality,
       environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36. Because there are no
       sentencing guidelines in contempt cases, reviewing courts must ensure that the contempt
       power is not abused and, if necessary, should revise the sentences imposed. Geiger, 2012 IL
       113181, ¶ 27. In determining an appropriate sentence for criminal contempt, a court should
       consider the following factors: “(1) the extent of the willful and deliberate defiance of the
       court’s order, (2) the seriousness of the consequences of the contumacious behavior, (3) the
       necessity of effectively terminating the defendant’s defiance as required by the public interest,
       and (4) the importance of deterring such acts in the future.” Id. ¶ 28 (citing United States v.
       United Mine Workers of America, 330 U.S. 258, 302-03 (1947)).
¶ 35        In Geiger, the defendant was found guilty of direct criminal contempt for refusing to testify
       as a State’s witness at a murder trial, and he was sentenced to 20 years’ imprisonment. Id. ¶ 1.
       Our supreme court held that the sentence was manifestly disproportionate to the nature of the
       offense. Id. ¶ 29. In reaching that conclusion the court considered: (1) the defendant’s refusal
       to testify was based on a mistaken belief that he had a fifth amendment right not to testify; (2)
       his refusal to testify might have been driven by fear of retaliation (the defendant was a gang
       member and the murder was gang-related); (3) the refusal to testify did not hamper the State’s
       ability to prosecute the individual on trial for murder (who was convicted and sentenced to life
       imprisonment); and (4) the defendant’s contemptuous conduct was nonviolent and he was not


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       flagrantly disrespectful to the trial judge. Id. ¶¶ 29-31. The court remanded the matter for the
       trial court to impose a more reasonable sentence. Id. ¶ 32.
¶ 36        The respondent argues that the circumstances here are similar to those in Geiger.
       Similarities include the prospect of gang retaliation, that Rosalez was convicted of first-degree
       murder despite the absence of the respondent’s testimony, and that the respondent did not act
       against the court in a violent or flagrantly disrespectful way. The respondent further argues that
       there is no published Illinois case involving a contempt sentence longer than six months and
       that the only federal case where the court affirmed a contempt sentence as long as 10 years
       involved the defendant’s attacking a witness with a screwdriver (United States v. DiPaoli, 804
       F.2d 225, 234 (2d Cir. 1986)). The respondent points out that federal courts that have reduced
       sentences for contempt have found it illogical to punish people more severely for refusing to
       testify than for testifying falsely. (The maximum sentence for perjury in federal court is five
       years’ imprisonment.) See United States v. Gracia, 755 F.2d 984, 990 (2d Cir. 1985) (9-year
       sentence for refusing to testify reduced to 4 years); United States v. Gomez, 553 F.2d 958, 959
       (5th Cir. 1977) (15-year sentence for refusing to testify reduced to 2 years).
¶ 37        The State argues that the sentence is not excessive, because (1) the respondent had no right
       to refuse to testify, and (2) due to his failure to testify, the State was unable to prove that
       Rosalez was the shooter, which precluded a statutory 25-year add-on to Rosalez’s sentence.
       The State also notes the severity of the underlying crime and that the respondent chose to
       protect fellow gang members rather than to “align himself with the recognized government of
       our society and seek justice for the innocent victim.”
¶ 38        We agree with the State. The factors listed in United Mine Workers favor imposition of a
       substantial sentence. As to the first factor, the respondent’s refusal to testify was willful and
       deliberate as he was not under a mistaken belief that he had a fifth amendment right not to
       testify. Additionally, regarding the second factor, the underlying crime at issue here,
       first-degree murder, was serious and the respondent’s failure to testify hindered the public
       interest in finding the truth and seeking justice. Finally, as to the third and fourth factors, the
       public interest in terminating the defiance and the importance of future deterrence both favor a
       substantial sentence. The severity of the sentence here properly deters future witnesses from
       refusing to testify and obstructing the administration of justice in serious criminal cases. The
       trial court specifically stated that the respondent’s failure to testify hindered the prosecution of
       Rosalez and that the sentence was meant to serve as a deterrent to future witnesses. The trial
       court’s sentencing decision is entitled to great deference. Accordingly, we cannot say that the
       trial court abused its discretion in imposing the sentence.
¶ 39        As noted, in arguing that his sentence is excessive, the respondent points to federal cases
       where contempt sentences were reduced because courts found it illogical to punish contempt
       more severely than perjury. In Illinois, perjury is a Class 3 felony punishable by two to five
       years’ imprisonment. 730 ILCS 5/5-4.5-40 (West 2010). However, an extended term of 5 to 10
       years may be imposed if there are aggravating factors present. See 730 ILCS 5/5-8-2(a),
       5-5-3.2(b) (West 2010). Here, the respondent would have been eligible for an extended-term
       sentence for perjury, based on his prior conviction of the same or a greater class
       offense–specifically, his murder conviction. See 730 ILCS 5/5-5-3.2(b)(1) (West 2010).
       Accordingly, the respondent’s insinuation that his 10-year sentence for contempt is more
       onerous than a possible sentence for perjury is without merit.


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¶ 40                                     CONCLUSION
¶ 41   For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 42   Affirmed.




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