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People v. McPherson

Court of Appeals of Illinois, Second District

September 1, 2017

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

         Appeal from the Circuit Court of Lake County. No. 14-CC-11 Honorable Daniel B. Shanes, Judge, Presiding.

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

          OPINION

          HUDSON PRESIDING JUSTICE

         ¶ 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.

         ¶ 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 "suigeneris, " Rule 604(d) does not apply ...


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