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                               Appellate Court                            Date: 2017.10.23
                                                                          09:07:30 -05'00'




                  People v. McPherson, 2017 IL App (2d) 150538



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



District & No.     Second District
                   Docket No. 2-15-0538



Filed              September 1, 2017



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



Judgment           Vacated and remanded.


Counsel on         Michael J. Pelletier, Thomas A. Lilien, and John T. Hildebrand, of
Appeal             State Appellate Defender’s Office, of Elgin, for appellant.

                   Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                   Lawrence M. Bauer, Victoria E. Jozef, and Cora Moy, of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              PRESIDING JUSTICE HUDSON delivered the judgment of the
                   court, with opinion.
                   Justices Birkett and Spence concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant, Darius McPherson, appeals from the judgment of the circuit court of Lake
     County sentencing him, following his guilty plea to direct criminal contempt, to a six-year
     term of imprisonment. He contends, among other things, that Illinois Supreme Court Rule
     604(d) (eff. July 1, 2017) applied and that, upon the filing of a motion to reconsider his
     sentence, his counsel failed to file the required certificate. Because Rule 604(d) applied, we
     vacate and remand.

¶2                                         I. BACKGROUND
¶3        Defendant was originally charged with a drug offense (No. 14-CF-2234). While that case
     was pending, the State filed a new case charging defendant, via a petition for adjudication, with
     direct criminal contempt. The petition alleged that defendant had been granted use immunity to
     testify at his brother’s murder trial. Although the trial court had ordered defendant to testify
     and advised him that if he refused he could be found in direct criminal contempt, he refused. In
     its petition, the State requested that defendant’s refusal to testify be classified as a “major
     contempt” and that a sentence exceeding six months’ incarceration be considered.
¶4        On November 20, 2014, defendant was arraigned. Pursuant to defendant’s motion for a
     substitution of judge, the case was assigned to a different judge.
¶5        On March 2, 2015, defendant entered a guilty plea in his drug case, leaving open the issue
     of the appropriate sentence. He also entered an “open plea” to the contempt charge, which the
     trial court characterized as an “open admission to the petition for adjudication of criminal
     contempt.”
¶6        The trial court then admonished defendant as to both offenses, consistently with Illinois
     Supreme Court Rule 402(a) (eff. July 1, 2012). After doing so, the court asked defendant if he
     wished “to plead guilty and admit” the criminal contempt, to which defendant answered yes.
¶7        The State offered a factual basis for the contempt charge. According to the State, the court
     reporter and the assistant State’s Attorney assigned to defendant’s brother’s murder case
     would testify that defendant was subpoenaed in that case, the court ordered him to testify, and
     defendant refused to do so. Defendant stipulated to, and the court found sufficient, the factual
     basis. The court then set the matter for sentencing.
¶8        At the sentencing, the trial court found that, because defendant was in jail for his drug
     offense when he committed the contempt, his sentence for contempt must be consecutive. The
     court considered the presentence report and various factors in arriving at the sentence for
     contempt. The court sentenced defendant to six years’ imprisonment. The court sentenced
     defendant to 3½ years’ imprisonment on the drug conviction.
¶9        Defendant filed a motion to reconsider only his contempt sentence. Defendant’s attorney
     did not file a certificate pursuant to Rule 604(d). In denying the motion to reconsider, the trial
     court reiterated its reasoning for imposing the six-year, consecutive prison term. Defendant, in
     turn, filed a timely notice of appeal.




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¶ 10                                            II. ANALYSIS
¶ 11       On appeal, defendant contends that (1) because he pled guilty to the contempt charge,
       counsel was required, upon the filing of the motion to reconsider, to file a certificate under
       Rule 604(d) and (2) the sentence on the contempt conviction must be reduced, as his failure to
       testify at his brother’s trial did not prejudice the State, and the trial court erred in imposing a
       consecutive sentence. The State responds that (1) because direct criminal contempt is
       “sui generis,” Rule 604(d) does not apply and (2) the court neither abused its discretion in
       imposing a six-year prison sentence nor erred in making the sentence consecutive.
¶ 12       Because it is dispositive, we first address the Rule 604(d) issue. Rule 604(d) provides, in
       pertinent part, that when a defendant, who has pled guilty, moves to withdraw his plea or
       reconsider his sentence, his counsel must file a certificate stating that he has consulted with the
       defendant, has examined the trial court file and report of proceedings, and has made any
       amendments to the motion necessary for adequate presentation of any defects in those
       proceedings. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Rule 604(d) applies to the entry of a guilty
       plea to a criminal charge. People v. Tufte, 165 Ill. 2d 66, 72 (1995).
¶ 13       In this case, there is no question that defendant was charged criminally in the contempt
       prosecution. Indeed, he was subsequently convicted and sentenced to prison. Additionally,
       defendant pled guilty to the charge. Because defendant pled guilty to a criminal charge, Rule
       604(d), by its terms, applied. Thus, when defendant moved for reconsideration of his sentence,
       his counsel was required to file the certificate.
¶ 14       The State, however, contends that, because direct criminal contempt is sui generis and the
       normal procedural rules for criminal prosecutions do not apply, Rule 604(d) likewise does not
       apply. We disagree.
¶ 15       Although generally the procedural protections applicable to a criminal prosecution do not
       apply to a direct criminal contempt conviction (see People v. Hixson, 2012 IL App (4th)
       100777, ¶¶ 13-14), the facts of this case are unusual. Unlike the typical direct criminal
       contempt proceeding, in which the trial court summarily decides whether a defendant was
       contemptuous and imposes an immediate sanction (see People v. Simac, 161 Ill. 2d 297, 306
       (1994) (direct criminal contempt is normally found and punished summarily)), here there was
       a far more formal procedure. Indeed, the procedure here had all of the trappings of a typical
       criminal prosecution. Defendant was formally charged via a petition for adjudication of direct
       criminal contempt. Defendant was also arraigned. He pled guilty at a formal guilty-plea
       proceeding, at which the court admonished him consistently with Rule 402(a), and the State
       offered a factual basis. Further, after defendant pled guilty, the matter was set for sentencing.
       At the sentencing hearing, the court considered the presentence investigation report and
       various sentencing factors in arriving at a sentence. In light of the formal criminal prosecution
       in this case, the rules normally applicable to criminal prosecutions applied, including the
       certificate requirement of Rule 604(d).
¶ 16       Because trial counsel failed to file a Rule 604(d) certificate, the proper remedy is to vacate
       the denial of defendant’s motion and remand the cause for the filing of a valid certificate, the
       opportunity to file a new motion, and a new motion hearing. See People v. Martell, 2015 IL
       App (2d) 141202, ¶ 21 (citing People v. Lindsay, 239 Ill. 2d 522, 531 (2011)). Thus, we do not
       reach the issue regarding defendant’s sentence.



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¶ 17                                      III. CONCLUSION
¶ 18      For the foregoing reasons, the order of the circuit court of Lake County is vacated, and the
       cause is remanded.

¶ 19      Vacated and remanded.




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