APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
518 N.E.2d 1303, 165 Ill. App. 3d 630, 116 Ill. Dec. 323 1988.IL.102
Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The State appeals from an order of the circuit court of Kane County dismissing child abduction charges (Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1)) against defendant, Michael Doherty, on double jeopardy grounds, because another Kane County court had found him in contempt of court for the same conduct. The marriage of Michael and Margaret Doherty was dissolved on September 10, 1982, at which time the court awarded Margaret custody of the couple's two children. On October 5, 1984, Michael took the children, then ages eight and six, for a weekend visit, but failed to return them to Margaret on October 7 as the custody order required. Michael and the children were eventually located in Clay County, Indiana, in August 1985, when a resident notified authorities after recognizing the children in photographs circulated by the Illinois Department of Law Enforcement.
A grand jury returned an indictment charging defendant with child abduction (Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1)) on October 1, 1985. On October 24, 1985, Margaret filed a petition for rule to show cause why the defendant should not be held in contempt in the dissolution action. (She had filed an earlier petition in defendant's absence, but there is no indication in the record that any action was taken on that petition.) Defendant filed a response, and each party filed a memorandum on the issue. The contempt hearing was held on December 2, 1985, while the child abduction case was still in the discovery phase. Defendant and Margaret were the only witnesses to testify at the hearing. On March 4, 1986, the dissolution court entered an order finding defendant in contempt of court for failing to return the children to Margaret from October 7, 1984, to August 8, 1985. The court sentenced defendant to 90 days in the county jail, but stayed the sentence conditioned on defendant's future compliance with the court's pending orders. Defendant subsequently moved for dismissal of the child abduction charge on double jeopardy grounds. The criminal court dismissed the charge on May 19, 1986, and the State then filed this appeal.
The State argues that the court's sentence was imposed for civil, rather than criminal, contempt of court and that the double jeopardy protections conferred by the United States (U.S. Const., amend. V) and Illinois Constitutions (Ill. Const. 1970, art. I, § 10) do not mandate dismissal of the criminal charge in any event.
The Illinois Supreme Court recently addressed the issue of whether a finding of criminal contempt will bar later prosecution on substantive criminal charges relating to the same conduct. (People v. Totten (1987), 118 Ill. 2d 124.) In Totten, which was decided after the parties to this appeal had filed their briefs, the court approved the subsequent criminal prosecutions of two defendants. In the case of the first defendant, the court held that, where the defendant has been summarily adJudged in direct criminal contempt, the double jeopardy clause does not prohibit a subsequent criminal prosecution because the "defendant has not yet been called upon to 'marshal the resources and energies necessary to his defense.'" (118 Ill. 2d at 134, quoting language originally stated in Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 673 (Brennan, J., separate opinion).) With respect to the second defendant, who had been adJudged in indirect criminal contempt after an evidentiary hearing, the court held that the substantive criminal charge and the contempt charge are different offenses for double jeopardy purposes only if each "requires proof of an additional fact not required to prove the other." (Totten, 118 Ill. 2d at 138, citing Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182.) The court expressly overruled People v. Gray (1977), 69 Ill. 2d 44 (Totten, 118 Ill. 2d at 139), which had held that the offenses were the same if the same evidence would sustain the proof of each. People v. Gray, 69 Ill. 2d at 49.
In People v. Rodriguez (1987), 162 Ill. App. 3d 149, also decided after the parties here had filed their briefs, this court applied the Totten test to determine that child abduction (Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1)) and indirect criminal contempt are the same offense for double jeopardy purposes. (People v. Rodriguez, 162 Ill. App. 3d at 155.) The State correctly avers that, to sustain the charge of child abduction, the State must establish facts not required to sustain an indirect criminal contempt charge. (See Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1) (requiring proof that the defendant concealed or detained the child or removed the child from the court's jurisdiction).) The reverse is not true, however. (See People v. Rodriguez, 162 Ill. App. 3d at 155 (noting that the only elements of criminal contempt are: (1) the wilful violation of (2) an existing court order, both of which facts are also required to establish child abduction).) We must therefore conclude that indirect criminal contempt is a lesser included offense of child abduction, because a conviction for child abduction would necessarily establish all of the elements of an indirect criminal contempt. (See Totten, 118 Ill. 2d at 138-39, citing People v. Mueller (1985), 109 Ill. 2d 378, and Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.) The two are, therefore, the same offense for double jeopardy purposes. (See Brown v. Ohio (1977), 432 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227; People v. Rodriguez, 162 Ill. App. 3d at 155.) Double jeopardy principles nevertheless do not apply where the prior adjudication was one of civil contempt. (See Yates v. United States (1957), 355 U.S. 66, 74-75, 2 L. Ed. 2d 95, 102-03, 78 S. Ct. 128, 133-34.) It is therefore necessary to determine whether the sanction imposed below was civil or criminal.
The distinction between civil and criminal contempt is often a difficult one to make. (See, e.g., People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409.) A proceeding in civil contempt most often arises when the contemnor has refused to do what was ordered, while criminal contempt arises when he does what has been prohibited. (See Shillitani v. United States (1966), 384 U.S. 364, 368, 16 L. Ed. 2d 622, 626, 86 S. Ct. 1531, 1534; People v. Lucas (1986), 146 Ill. App. 3d 5, 11.) The two can best be distinguished by looking to the purpose and character of the sanction imposed -- "what does the court primarily seek to accomplish by imposing sentence?" (Shillitani v. United States, 384 U.S. at 370, 16 L. Ed. 2d at 627, 86 S. Ct. at 1535.) A sanction for civil contempt is prospective in nature and primarily intended to compel a contumacious party to comply with the court's order or decree for the benefit of another party. (See People ex rel. Chicago Bar Association v. Barasch, 21 Ill. 2d at 409; People v. Lucas, 146 Ill. App. 3d at 10.) A sanction for criminal contempt is retrospective in nature and is primarily intended to punish the contemnor and to preserve the dignity and authority of the court. People ex rel. Chicago Bar Association v. Barasch, 21 Ill. 2d at 409; People v. Lucas, 146 Ill. App. 3d at 11.
In the case at bar, the court imposed the following sentence:
"MICHAEL E. DOHERTY is sentenced to the Kane County Jail for a period of 90 days as penalty for his willful contempt of this court. This Order of incarceration is stayed until August 3, 1986, subject to his further full compliance with all pending Orders of this Court. If there has been full compliance, the Court shall ...