from the Circuit Court of Lake County. No. 14-CC-11 Honorable
Daniel B. Shanes, Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justices Birkett and Spence concurred in the
judgment and 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
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
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 ...