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                                Appellate Court                            Date: 2019.07.25
                                                                           09:30:52 -05'00'



                  People v. McPherson, 2018 IL App (2d) 170966



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



District & No.      Second District
                    Docket No. 2-17-0966



Filed               September 25, 2018



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



Judgment            Affirmed as modified.


Counsel on          James E. Chadd, Thomas A. Lilien, Jack Hildebrand, and Paul
Appeal              Alexander Rogers, of State Appellate Defender’s Office, of Elgin, for
                    appellant.

                    Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                    David J. Robinson, and Lawrence M. Bauer, of State’s Attorneys
                    Appellate Prosecutor’s Office, of counsel, and Grant A. Bosnich, law
                    student), for the People.
       Panel                    PRESIDING JUSTICE HUDSON delivered the judgment of the
                                court, with opinion.
                                Justices Burke and Birkett concurred in the judgment and opinion.


                                                 OPINION

¶1           Defendant, Darius McPherson, appeals from the judgment of the circuit court of Lake
         County, sentencing him to a consecutive six-year term of imprisonment for direct criminal
         contempt. Because the trial court did not abuse its discretion in imposing the six-year prison
         sentence, we affirm that part of the judgment. However, because the court erred in ruling that
         the sentence was required to be consecutive, and because it abused its discretion in
         alternatively imposing the consecutive sentence as a matter of discretion, we modify the
         sentence to run concurrently with defendant’s sentence for a drug offense.

¶2                                             I. BACKGROUND
¶3           Defendant was originally charged with a felony drug offense (No. 14-CF-2234). While that
         case was pending, the State filed the present case (No. 14-CC-11), charging defendant with
         direct criminal contempt. The petition for adjudication of contempt alleged that defendant,
         who had been granted use immunity to testify at his brother’s murder trial, refused to testify.
¶4           On the same date, defendant pled guilty to both the felony drug charge and the contempt
         charge, leaving open in both cases the appropriate sentence.
¶5           At the joint sentencing hearing, defendant presented two witnesses. Detective Morris
         Wade of the North Chicago Police Department testified that he investigated defendant’s
         brother’s murder case. According to Detective Wade, a video showed that, on the night of the
         murder, defendant’s brother entered a vehicle driven by defendant.
¶6           Detective Wade interviewed defendant to determine if he was involved in the murder.
         According to Detective Wade, defendant denied having witnessed the shooting. Defendant
         never told Detective Wade that there had been a plan to shoot the victim, that his brother had
         bragged about the shooting, or that defendant had tried to conceal the murder.
¶7           Lawrence Wade, an attorney, testified that, as part of his representation of defendant’s
         brother, he spoke twice to defendant. Defendant said little, and Lawrence Wade could not
         determine whether defendant would be helpful to either the defense or the prosecution.
¶8           Lawrence Wade also observed defendant during the murder trial. He opined that defendant
         was never disrespectful to the trial judge and never disrupted the proceedings. Lawrence Wade
         saw defendant refuse to testify each day of the trial. Lawrence Wade admitted that defendant
         had been given immunity to testify.
¶9           In allocution, defendant apologized for his actions.
¶ 10         In imposing sentence, the trial court stated that it had considered the record, the
         presentence investigation report, the testimony of defendant’s two witnesses, the allocution,
         and counsel’s arguments. The court added that it had also considered all statutory and
         nonstatutory aggravating and mitigating factors, as well as the constitutional command to
         fashion a sentence designed to facilitate defendant’s rehabilitative potential and to restore him
         to useful citizenship.

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¶ 11       The trial court sentenced defendant to three years’ imprisonment on the drug conviction.
       As for the contempt sentence, the trial court noted that, because its contempt power is
       extraordinary and should be used sparingly and with the utmost sensitivity, the sentence should
       reflect the “least possible power adequate to its purpose.” The trial court commented that, in
       imposing sentence, it was considering whether defendant had an actual but mistaken belief that
       he had a fifth amendment right not to testify, whether his refusal to testify seriously hampered
       the State’s ability to prosecute his brother, whether his contempt was nonviolent, and whether
       he was flagrantly disrespectful to the trial judge. After noting that the State was able to convict
       defendant’s brother without defendant’s testimony, the court observed that, although that
       might be either aggravating or mitigating, the court was not giving it much weight.
¶ 12       Because of the immunity, the trial court found that defendant had no reasonable belief that
       he had a fifth amendment right to refuse to testify. The court found that defendant’s refusal to
       testify occurred during a serious murder trial. The court deemed it mitigating that defendant
       refused to testify against his brother. The court further commented that defendant did not
       choose to be a material witness. However, the court noted that a civilized society cannot have a
       system of justice where a person decides whether he or she should testify and that the public is
       entitled to everyone’s testimony concerning criminal acts committed by another. The court
       stated that, in cases involving the contemptuous refusal to testify, it is particularly important to
       impose a sentence that will deter others from such conduct. The court also noted that, even
       though some courts had compared the contemptuous refusal to testify with perjury, it did not
       think that this was a proper comparison in all cases. It added that case law involving the
       contemptuous refusal to testify supports the proposition that a sentence for contempt is not
       limited by the sentencing range for perjury. See 720 ILCS 5/32-2(e) (West 2016); 730 ILCS
       5/5-4.5-40(a) (West 2016).
¶ 13       The trial court stated that, because defendant was in jail on the drug offense when he
       committed the contempt, it believed that the sentence must be consecutive. However, the court
       added that, even if a consecutive sentence were not required, it would impose one “based upon
       the facts and circumstances of [the] case.” The court recognized that defendant had only the
       one felony conviction and that he was young. The court sentenced defendant to a consecutive
       six-year term of imprisonment on the contempt conviction.
¶ 14       Defendant filed a motion to reconsider only his contempt sentence. In denying the motion
       to reconsider, the trial court reiterated that it did not believe that the sentence for contempt was
       limited by the statutory framework for perjury. However, even if it were, the court would have
       imposed the same sentence.
¶ 15       Defendant appealed, and we vacated the denial of the motion to reconsider because of the
       lack of a certificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). See People v.
       McPherson, 2017 IL App (2d) 150538. We remanded for defendant’s counsel to file the Rule
       604(d) certificate and for new proceedings under the rule.
¶ 16       In denying defendant’s motion to reconsider his sentence on remand, the trial court
       reiterated that, when it sentenced defendant, it considered all statutory and nonstatutory
       aggravating and mitigating factors. The court added that it imposed a consecutive sentence
       because defendant committed the contempt while the drug charge was pending. However, the
       court noted that, even if the sentence were not required to be consecutive, the court, as a matter
       of discretion, “conducted the analysis and was of the opinion that consecutive sentences were
       appropriate.” The court added that it had, at sentencing, “explained at greater length *** why it

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       imposed the sentence that it did.” Finally, the court repeated that, because contempt is not a
       statutory offense, and thus does not have a statutory sentencing range, the sentence must be
       reasonable under the circumstances. Defendant, in turn, filed this timely appeal.

¶ 17                                           II. ANALYSIS
¶ 18       On appeal, defendant contends that the trial court abused its discretion in imposing a
       consecutive six-year prison sentence. He asserts that, rather than remand for resentencing, this
       court should vacate that sentence and impose a consecutive one-year term of imprisonment.
¶ 19       Criminal contempt is conduct directed against the dignity or authority of the court. People
       v. Gholson, 412 Ill. 294, 298 (1952). “Criminal contempt is a crime in the ordinary sense; it is
       a violation of the law, a public wrong which is punishable by fine or imprisonment or both.”
       Bloom v. Illinois, 391 U.S. 194, 201 (1968). It has long been recognized that a court has the
       inherent power to punish contempt. People v. Geiger, 2012 IL 113181, ¶ 24. Moreover,
       because the power to punish contempt is inherent and does not depend on a constitutional or
       legislative grant, the legislature may not restrict it. Geiger, 2012 IL 113181, ¶ 24. Accordingly,
       contempt has no statutory sentencing classification or range. Geiger, 2012 IL 113181, ¶ 24.
       Nonetheless, when imposing a sentence for contempt, a court should keep in mind that the
       contempt power is extraordinary and thus should be used sparingly and with the utmost
       sensitivity. Geiger, 2012 IL 113181, ¶ 25.
¶ 20       A sentence for direct criminal contempt, like any other sentence, is reviewed for an abuse
       of discretion. Geiger, 2012 IL 113181, ¶ 27. A sentence will be deemed an abuse of discretion
       where it greatly varies from the spirit and purpose of the law or is manifestly disproportionate
       to the nature of the offense. Geiger, 2012 IL 113181, ¶ 27. In contempt cases, however, where
       there are no sentencing guidelines, reviewing courts have a special responsibility for
       determining that the contempt power is not abused and, if necessary, reducing sentences
       themselves. Geiger, 2012 IL 113181, ¶ 27.
¶ 21       There are certain factors that a trial court may consider when fashioning an appropriate
       sentence for criminal contempt. Geiger, 2012 IL 113181, ¶ 28 (citing United States v. United
       Mine Workers of America, 330 U.S. 258, 302-03 (1947)). Those factors are (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 future
       behavior. Geiger, 2012 IL 113181, ¶ 28.
¶ 22       In this case, when we consider the six-year prison sentence in light of the relevant
       sentencing factors recognized in Geiger, the sentence neither varied greatly from the spirit and
       purpose of the law nor was manifestly disproportionate to the nature of the offense.
¶ 23       First, defendant was particularly willful and defiant in refusing to testify. Because he had
       been granted use immunity, he had no reasonable belief that he had a fifth amendment right not
       to testify. See 725 ILCS 5/106-2.5(b) (West 2016); People v. Zambrano, 2016 IL App (3d)
       140178, ¶ 24 (citing People v. Ousley, 235 Ill. 2d 299, 316 (2009)); see also 725 ILCS 5/106-3
       (West 2016) (any witness who, having been granted immunity, refuses to testify shall be in
       contempt). Further, on each day of his brother’s trial, defendant was given the opportunity to
       comply with the court’s order to testify. Instead, throughout the trial he adamantly refused to
       testify. Defendant’s persistent refusal to testify, when he clearly had no fifth amendment right


                                                   -4-
       to refuse, constituted a willful and deliberate defiance of the court. Thus, that factor weighs in
       favor of a lengthier sentence.
¶ 24        Second, defendant’s refusal to testify had serious consequences. The State sought his
       testimony in a murder case. Because defendant did not testify, there was an increased risk that
       justice might not be achieved in the death of a young woman. Although defendant suggests that
       his testimony was not particularly important, as the State obtained a conviction without it, we
       cannot know the true nature of that testimony. Additionally, Detective Wade testified at
       sentencing that there was video evidence that defendant and his brother were together in a
       vehicle on the night of the murder. That certainly implies that defendant would have had
       material evidence to offer had he testified. Further, the State immunized defendant in exchange
       for his testimony, which also suggests that his testimony would have been material. Because
       defendant’s refusal to testify had serious consequences, that factor also supports a more severe
       sentence.
¶ 25        Third, the public interest required the effective termination of defendant’s defiance.
       Society has a justifiable interest in trials that are based on a full disclosure of relevant evidence.
       Indeed, one of the underlying purposes for granting a witness immunity is to obtain his
       testimony notwithstanding his fifth amendment right not to testify. People v. DeFord, 59 Ill.
       App. 3d 942, 945 (1978). In granting such immunity, the prosecution serves the public interest.
       United States v. Jarrett, 133 F.3d 519, 539 (7th Cir. 1998) (federal prosecutor has
       unreviewable power to decide whether the public interest demands granting immunity to a
       witness in order to compel the witness’s testimony). It is contrary to that public interest to have
       a material witness refuse to testify. More importantly, the public’s interest in a full disclosure
       of evidence is particularly keen in a murder trial. Indeed, it is entirely inconsistent with the
       public’s interest to have an accused murderer escape accountability because the State could not
       obtain a witness’s testimony. Because defendant’s refusal to testify in the face of a grant of
       immunity frustrated the public’s interest, that factor weighs heavily in favor of the six-year
       prison sentence.
¶ 26        Fourth, the import of deterring others from similar conduct is obvious. The failure to
       impose a significant sentence in this case would encourage future immunized witnesses to
       refuse to testify. Were witnesses such as defendant allowed to refuse to testify without
       consequence, trials would be incomplete, and the integrity of our judicial system would be
       questioned. Thus, deterrence supports the sentence imposed.
¶ 27        When we consider the relevant factors in light of the circumstances of this case, we readily
       conclude that the six-year prison sentence neither varied greatly from the spirit and purpose of
       the law nor was manifestly disproportionate to the offense. Thus, the trial court did not abuse
       its discretion in imposing the six-year prison sentence.
¶ 28        We further note that, to the extent that the parties rely on the perjury statute as a guide for
       determining whether the sentence was proper, such reliance is misplaced. As our supreme
       court stated in Geiger, because the judicial power to punish contempt is inherent and does not
       depend on any constitutional or legislative grant, the legislature may not restrict it. Geiger,
       2012 IL 113181, ¶ 24. Thus, contempt has no statutory sentencing classification or range.
       Geiger, 2012 IL 113181, ¶ 24. To interpose a statutory range by comparing contempt to
       perjury, or some other statutory offense, would detract from the inherent judicial authority to
       punish contempt. To the extent that some judicial decisions have suggested otherwise, we
       respectfully disagree. Of course, a punishment for contempt is not without limit. As noted, all

                                                     -5-
       contempt sentences are subject to review for an abuse of discretion. Geiger, 2012 IL 113181,
       ¶ 27. Thus, we strongly discourage parties from arguing whether a sentence for contempt is
       appropriate by relying on the sentencing ranges for statutory offenses.
¶ 29        We next address whether the trial court erred in imposing a mandatory consecutive
       sentence or abused its discretion in imposing a discretionary one.1 It did both.
¶ 30        In ruling at the sentencing hearing that the contempt sentence was required to be
       consecutive, the trial court stated that the contempt was committed while defendant was in jail
       on the drug charge. The State properly concedes that a mandatory consecutive sentence was
       not proper on that basis because defendant was in the custody of the Lake County sheriff as
       opposed to the Illinois Department of Corrections. See 730 ILCS 5/5-8-4(d)(6) (West 2016);
       People v. Lashley, 2016 IL App (1st) 133401, ¶¶ 44-53. Thus, the trial court erred to the extent
       that it ruled that a consecutive sentence was mandatory because defendant was in jail on the
       drug charge when he committed the contempt.
¶ 31        However, when denying the motion to reconsider on remand, the trial court stated that it
       had ruled that a consecutive sentence was required because defendant committed the contempt
       while the felony drug charge was pending. Section 5-8-4(d)(8) of the Unified Code of
       Corrections (Code) requires that a consecutive sentence be imposed where a defendant who is
       charged with a felony commits a separate felony while on pretrial release or in jail for the first
       felony. 730 ILCS 5/5-8-4(d)(8) (West 2016). However, criminal contempt is not classified as a
       felony. See Geiger, 2012 IL 113181, ¶ 24. Because defendant’s contempt did not constitute a
       separate felony within the meaning of section 5-8-4(d)(8), that provision did not require a
       consecutive sentence.
¶ 32        As for the discretionary imposition of a consecutive sentence, section 5-8-4(a) of the Code
       provides, in pertinent part, that, when a court imposes a prison sentence on a defendant who is
       already subject to a sentence of imprisonment, the additional sentence shall run concurrently,
       unless the court determines otherwise. 730 ILCS 5/5-8-4(a) (West 2016). Accordingly, as
       pertinent here, a court may impose a discretionary consecutive sentence only if, having regard
       for the nature and circumstances of the offense and the history and character of the defendant,
       the court finds that consecutive sentences are necessary to protect the public from the
       defendant’s further criminal conduct. 730 ILCS 5/5-8-4(c)(1) (West 2016). In imposing a
       consecutive sentence under section 5-8-4(c)(1), a court must set forth on the record its basis for
       doing so. 730 ILCS 5/5-8-4(c)(1) (West 2016).
¶ 33        Here, the trial court did not find that a consecutive sentence was necessary to protect the
       public from defendant’s further criminal conduct. Nor did it set forth adequately on the record
       its specific basis for imposing a consecutive sentence. At most, the court generally stated that it
       was imposing a consecutive sentence because of the “facts and circumstances of [the] case.” It
       added, when denying defendant’s motion to reconsider his sentence on remand, that it had

           1
            Defendant, in his opening brief, contended that the trial court erred in ruling that a consecutive
       sentence was required. The State, in its brief, agreed that a consecutive sentence was not required but
       argued that it was proper as a matter of discretion. In his reply brief, defendant stated that in his opening
       brief he did not ask this court to vacate the consecutive sentence and make it concurrent. However, he
       also argued that the trial court abused its discretion in imposing a consecutive sentence. Because the
       issue has been raised adequately, we will decide whether the trial court properly imposed a consecutive
       sentence, either because it was required or as a matter of discretion.

                                                        -6-
       “conducted the analysis and was of the opinion that consecutive sentences were appropriate.”
       Those brief comments fall short of the substantiation called for by section 5-8-4(c)(1).
       Although a court need not recite the language of section 5-8-4(c)(1), the record at least must
       show the particular facts and circumstances that the court relied on in deciding that a
       consecutive sentence was appropriate. See People v. Buckner, 2013 IL App (2d) 130083, ¶ 36.
       The record here does not.
¶ 34        Alternatively, even had the trial court enunciated its basis on the record, a consecutive
       sentence was not proper under the circumstances. Defendant refused to testify at his brother’s
       trial. That unique circumstance is not likely to recur. Nor does defendant’s criminal history,
       which consists merely of one recent drug offense, suggest that he is likely to commit other
       criminal conduct. Accordingly, we conclude that the court abused its discretion in making the
       contempt sentence consecutive. Thus, we modify the sentence for contempt to run
       concurrently with the sentence for the drug conviction. See People v. Reeves, 385 Ill. App. 3d
       716, 735 (2008) (citing Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967)).

¶ 35                                   III. CONCLUSION
¶ 36      For the reasons stated, we affirm the judgment of the circuit court of Lake County,
       imposing a six-year prison sentence for contempt, but modify the sentence to make it
       concurrent.

¶ 37      Affirmed as modified.




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