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09/27/94 PEOPLE STATE ILLINOIS v. DONALD J. RAMSELL

September 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONALD J. RAMSELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 93-CC-22. Honorable James W. Jerz, Judge, Presiding.

Inglis, Woodward, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Defendant, Donald J. Ramsell, appeals the order of the circuit court of Du Page County convicting him of indirect criminal contempt of court and sentencing him to six months' court supervision and 50 hours of pro bono legal work. Defendant contends that (1) his procedural due process rights were violated, and (2) he was not proven guilty beyond a reasonable doubt. We reverse and vacate.

On September 2, 1993, defendant was to appear before the trial court for a 9:30 a.m. hearing. Defendant failed to appear for this hearing, and on September 3, 1993, defendant was ordered to appear and show cause as to why he should not be held in contempt for his failure to appear. No petition, however, was filed to hold the defendant in contempt as is the recommended course of action in an indirect criminal contempt proceeding. At this hearing, defendant admitted that he had failed to appear on September 2, 1993. Defendant stated, however, that his failure to appear was not wilful, but merely inadvertent.

The court found defendant guilty of indirect criminal contempt for his failure to appear on September 2, 1993, and sentenced him tosix months' probation and 50 hours of pro bono legal work. On September 8, 1993, the defendant filed a motion to reconsider or for a new trial. The trial court denied this motion but modified the defendant's sentence to six months' court supervision instead of the six months of probation.

Direct contempt arises from acts committed in the court's presence. ( Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 113, 146 Ill. Dec. 1044, 558 N.E.2d 1378, reversed on other grounds (1991), 145 Ill. 2d 32, 163 Ill. Dec. 911, 582 N.E.2d 177.) Indirect contempt arises from acts that occur outside the presence of the court. Indirect contempt is dependent upon evidence of which the Judge has no personal, judicial notice. Cesena, 201 Ill. App. 3d at 113.

In the case at bar, the trial court ordered defendant to appear on September 2, 1993, and defendant failed to appear. The court entered an order directing defendant to show cause why he should not be held in contempt. The allegations were not reduced to writing and no petition was filed.

The purpose of the hearing on September 3, 1993, was to determine the reason for the defendant's failure to appear the previous day. Thus, the resolution of defendant's failure to appear involved facts and circumstances existing outside the presence of the court, making any alleged contempt indirect. "If the court is required to determine whether the conduct alleged was wilful, and in order to do so must consider extrinsic evidence as to matters not within its knowledge, the respondent must be given an opportunity to defend." People v. Waldron (1986), 114 Ill. 2d 295, 302, 102 Ill. Dec. 395, 500 N.E.2d 17.

An alleged contemnor in an indirect contempt proceeding is entitled to notice, a fair hearing, and an opportunity to be heard. ( Waldron, 114 Ill. 2d at 303.) If, however, such indirect contempt is admitted in open court, it may be punished as direct contempt. In re Estate of Melody (1969), 42 Ill. 2d 451, 453, 248 N.E.2d 104.

No evidence was presented. The record does not contain any evidence that defendant's failure to appear was wilful; however, defendant did admit that he failed to appear before the court.

The cases cited by the State are distinguishable from the case at bar. In Cesena, the contemnor admitted that he was not going to adhere to a court order. ( Cesena, 201 Ill. App. 3d 96, 146 Ill. Dec. 1044, 558 N.E.2d 1378.) In Melody, the contemnor was the instigator of a plan to admit into probate a spurious will, which plan was admitted by the contemnor. ( Melody, 42 Ill. 2d at 453.) Finally, while the court in People v. Boucher (1989), 179 Ill. App. 3d 832, 128 Ill. Dec. 842, 535 N.E.2d 56, did note that indirect contempt may be summarily treated as direct contempt if the contemnor admits his contempt in open court, that court held that only wilful violations of a court order can constitute contempt. ( Boucher, 179 Ill. App. 3d at 835.)

While defendant did admit that he had failed to appear before the court, he did not admit that his failure to appear was wilful. Therefore, his conduct cannot be summarily punished as direct contempt, and defendant must be afforded the procedural safeguards applicable to indirect criminal contempt proceedings. Upon consideration of this record, we conclude that the proceedings of the trial court did not afford defendant his requisite due process.

Indirect criminal contempt proceedings must generally conform to the same constitutionally mandated procedural requirements as other criminal proceedings. ( In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 58, 146 Ill. Dec. 441, 558 N.E.2d 404.) A person charged with indirect criminal contempt is entitled to (1) knowledge of the nature of the charges against him and to have such charges definitely and specifically set forth by citation or rule to show cause ( People v. Waldron (1986), 114 Ill. 2d 295, 303, 102 Ill. Dec. 395, 500 N.E.2d 17); (2) the privilege against self-incrimination; (3) the presumption of innocence; and (4) the right to be proven guilty beyond a reasonable doubt. ( Betts, 200 Ill. App. 3d at 58.) Additionally, a defendant has the right to counsel, the right to a public trial, the right to present witnesses in defense, and all other procedural requirements and rights ...


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