                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hixson, 2012 IL App (4th) 100777




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    FALANZO M. HIXSON, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0777


Filed                      January 23, 2012


Held                       An order finding defendant inmate in direct criminal contempt of court
(Note: This syllabus       for mailing a proposed order in his postconviction proceedings to the
constitutes no part of     circuit court purporting to have been signed by the presiding judge was
the opinion of the court   reversed on the ground that there was insufficient evidence that
but has been prepared      defendant’s conduct was willful, since the order was mailed along with
by the Reporter of         his petition requesting the entry of such an order and the circumstances,
Decisions for the          at most, indicated that defendant merely submitted a faulty proposed
convenience of the         order for filing.
reader.)


Decision Under             Appeal from Circuit Court of Champaign County, No. 99-CF-1850; the
Review                     Hon. Jeffrey B. Ford, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Johannah B. Weber and John H. Gleason, both of State Appellate
                           Defender’s Office, of Mt. Vernon, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Justices Appleton and Pope concurred in the judgment and opinion.




                                              OPINION

¶1           In August 2010, the trial court denied defendant’s pro se postconviction petition and
        found defendant in direct criminal contempt of court for mailing to the circuit court an order
        which “on its face purports to have been signed by this Court as Presiding Justice.”
        Additionally, the court sentenced defendant–for the direct criminal contempt–to six months
        in the Champaign County correctional center to run consecutive to his 55-year sentence for
        first degree murder.
¶2           Defendant appeals the criminal contempt order, arguing the trial court erred by finding
        him in direct criminal contempt because the evidence failed to establish he submitted the
        proposed order with a contemptuous state of mind.

¶3                                        I. BACKGROUND
¶4          In April 2000, a jury found defendant guilty of first degree murder. In July 2000, the trial
        court sentenced him to 55 years’ imprisonment. Defendant appealed his conviction and
        sentence, and this court affirmed. People v. Hixson, No. 4-00-0718 (Dec. 5, 2002)
        (unpublished order under Supreme Court Rule 23).
¶5          In April 2004, defendant filed a pro se postconviction petition, arguing he received
        ineffective assistance of counsel for failure to (1) call alibi witnesses; (2) impeach Andre
        Gordon, one of the State’s witnesses; and (3) file a postsentencing motion. Defendant also
        alleged he received ineffective assistance from appellate counsel for failing to include in his
        direct appeal those instances of trial court’s ineffectiveness apparent from the record. In June
        2004, the trial court dismissed defendant’s pro se petition as frivolous and patently without
        merit. Defendant appealed the dismissal of his pro se petition, and this court affirmed.
        People v. Hixson, No. 4-04-0642 (May 3, 2006) (unpublished order under Supreme Court
        Rule 23).

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¶6         In July 2010, defendant filed a pro se “Petition for Injunctive Relief,” arguing he was
       statutorily entitled to receive day-for-day good-conduct credit against his sentence and
       requesting the trial court enjoin the State from applying the reenacted truth-in-sentencing
       legislation to his 55-year sentence. Attached to defendant’s pro se petition was an order
       enjoining application of the truth-in-sentencing statute and applying “the 50% sentencing to
       [d]efendant’s 55 year sentence.” The name “Jeffrey B. Ford” was typed on the signature line
       of the order, which appeared above the words “Presiding Justice.”
¶7         In August 2010, the trial court entered an order denying defendant’s pro se petition.
       Additionally, the court entered a second order finding defendant in direct criminal contempt
       of court for mailing to the circuit clerk an order which “on its face purports to have been
       signed by this Court as Presiding Justice.” The court stated the following regarding
       defendant’s attached order:
               “This Order, attached, has not been entered by this Court, but to an observer, could
           be seen as a copy of one that was entered. The said Order purports to shorten Defendant’s
           sentence by 50% and release him from the Illinois Department of Corrections at a time
           when he should be serving his sentence. This Order was prepared and sent to the Circuit
           Clerk of Champaign with the other documentation stated above to be filed in Defendant’s
           court file.
               Defendant’s actions, if not caught by this Court, would hinder the administration of
           justice and put the Court in disrepute.”
       The court sentenced defendant to six months in the Champaign County correctional center
       to be served consecutively to his 55-year sentence and ordered him transferred to the
       correctional center upon completion of his 55-year sentence.
¶8         This appeal followed.

¶9                                         II. ANALYSIS
¶ 10       Defendant argues the trial court erred by finding him in direct criminal contempt because
       the evidence failed to support a finding he submitted his proposed order with a contemptuous
       state of mind. Specifically, defendant argues “the proposed order [more than likely] reflected
       nothing more than [his] ignorance of exactly how to prepare a proposed order.” The State
       counters defendant embarrassed the court and brought the administration of law into
       disrepute when he typed the judge’s name on the signature line of the order, which gave “the
       impression that the judge had authorized and entered the order.” According to the State,
       defendant would know his actions were “fraudulent and deceptive” even without any formal
       legal education.
¶ 11       The standard of review for direct criminal contempt is whether sufficient evidence exists
       to support a finding of contempt and whether the judge considered facts outside the judge’s
       personal knowledge. People v. Simac, 161 Ill. 2d 297, 306, 641 N.E.2d 416, 420 (1994).
       “Criminal contempt of court has been generally defined as conduct which is 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 disrepute.” People v.
       Javaras, 51 Ill. 2d 296, 299, 281 N.E.2d 670, 671 (1972).

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¶ 12        Two forms of criminal contempt have been recognized: direct and indirect. People v.
       L.A.S., 111 Ill. 2d 539, 543, 490 N.E.2d 1271, 1273 (1986). Direct criminal contempt may
       occur in either of two ways: (1) the contemptuous acts are personally observed by the judge
       or (2) the contemptuous acts are committed outside the immediate physical presence of the
       judge but within an integral part of the court, i.e., the circuit clerk’s office. People v. Minor,
       281 Ill. App. 3d 568, 572-73, 667 N.E.2d 538, 541 (1996). Under appropriate circumstances,
       the filing of a document with the clerk of the court may be a basis for a direct-criminal-
       contempt conviction. See Minor, 281 Ill. App. 3d at 572-73, 667 N.E.2d at 541 (contemnor
       was found in direct criminal contempt for sending pro se documents to the clerk of the circuit
       court and a circuit court judge, which contained false allegations about the judge).
¶ 13        “Direct criminal contempt may be found and punished summarily because all elements
       are before the court and, therefore, come within its own immediate knowledge.” L.A.S., 111
       Ill. 2d at 543, 490 N.E.2d at 1273. Therefore, the usual procedural-due-process safeguards
       are not required for a direct-criminal-contempt conviction. Id.
¶ 14        However, the alleged contemnor in an indirect criminal contempt proceeding is entitled
       to “due process safeguards, including notice, opportunity to answer, and a hearing.” L.A.S.,
       111 Ill. 2d at 543-44, 490 N.E.2d at 1273. Direct criminal contempt which allegedly occurred
       in the constructive presence of the court is subject to the same procedural requirements as
       indirect-criminal-contempt proceedings. In re Marriage of Betts, 200 Ill. App. 3d 26, 59-60,
       558 N.E.2d 404, 426 (1990).
¶ 15        Before citing one with contempt, a court must find the alleged contemnor’s conduct was
       willful. Simac, 161 Ill. 2d at 307, 641 N.E.2d at 421. “The alleged contemnor’s state of mind,
       however, does not have to be affirmatively proven; the contemptuous state of mind may be
       inferred from the allegedly contemptuous conduct itself.” Id. The intent may be inferred from
       the circumstances surrounding the contemptuous conduct and the character of the party’s
       conduct. Id.
¶ 16        The State cites Simac, 161 Ill. 2d at 314, 641 N.E.2d at 424, and People v. Smeathers,
       297 Ill. App. 3d 711, 717, 698 N.E.2d 181, 185 (1998), in support of its argument
       defendant’s actions were contemptuous. In Simac, 161 Ill. 2d at 308-10, 641 N.E.2d at 421-
       22, the supreme court determined the contemnor’s actions of placing a clerical employee,
       who resembled the defendant, in the defendant’s customary place at counsel’s table during
       trial without the court’s permission or knowledge was calculated to cause a misidentification.
       Further, in Smeathers, 297 Ill. App. 3d at 717-18, 698 N.E.2d at 185, the Second District
       Appellate Court determined sufficient evidence existed to prove the respondent guilty of
       contempt because he sent a series of notices of lien and default, without any legal or factual
       justification, to Judge Kelly, who presided over his traffic cases, in an attempt to have his
       driver’s license returned.
¶ 17        Under the facts of the present case, we find insufficient evidence exists to support the
       trial court’s finding of direct criminal contempt. An essential element to a finding of criminal
       contempt is the contemnor’s conduct must be willful. Here, defendant mailed a pro se
       petition for injunctive relief to the Champaign County circuit clerk’s office and the
       Champaign County State’s Attorney office. Attached to the pro se petition was a proposed


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       order granting the relief requested by defendant in his pro se petition.
¶ 18        Although defendant apparently typed the name “Jeffrey B. Ford” on the signature line of
       the order, rather than beneath it, this cannot be construed as an attempt to embarrass, hinder,
       or obstruct the judge in the administration of justice. Defendant mailed the proposed order
       to the circuit clerk’s office along with his petition requesting such an order be entered. At
       most, the facts and circumstances indicate defendant submitted “a faulty proposed order” for
       filing. Because we find insufficient evidence exists to support the trial court’s finding of
       direct criminal contempt, we reverse the trial court’s contempt order.
¶ 19        Further, we note defendant was entitled to the following procedural safeguards: (1) notice
       of the nature of the contempt charges; (2) an opportunity to answer the alleged charges; (3)
       right to a hearing; (4) the privilege against self-incrimination; (5) the presumption of
       innocence; (6) the right to be proved guilty beyond a reasonable doubt; (7) right to counsel
       (and to appointed counsel if indigent); (8) right to confront and cross-examine witnesses; (9)
       right to be personally present at trial; (10) right to testify or to remain silent; (11) right to
       compulsory process for obtaining witnesses; and (12) right to present the testimony of
       witnesses favorable to his or her defense. See Betts, 200 Ill. App. 3d at 58-59, 558 N.E.2d
       at 425-26 (setting forth the procedural requirements for indirect-criminal-contempt
       proceedings and constructive-direct-criminal-contempt proceedings).

¶ 20                                   III. CONCLUSION
¶ 21       For the reasons stated, we reverse the trial court’s contempt order.

¶ 22       Reversed.




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