People v. Perez-Gonzalez

• Decision Date: 26 June 2014
• Docket Number: No. 2–12–0946.,2–12–0946.
• Citation: 13 N.E.3d 360
• Parties: The PEOPLE of the State of Illinois, Petitioner–Appellee, v. Raul PEREZ–GONZALEZ, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 360

The PEOPLE of the State of Illinois, Petitioner–Appellee

v.Raul PEREZ–GONZALEZ, Respondent–Appellant.

No. 2–12–0946.

Appellate Court of Illinois, Second District.

June 26, 2014.

Rehearing Denied July 24, 2014.

Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Jay Paul Hoffmann, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice SCHOSTOK

delivered the judgment of the court, with opinion.

¶ 1 The respondent, Raul Perez–Gonzalez, was convicted of direct criminal contempt of court and subsequently sentenced to 10 years' imprisonment. On appeal, the respondent argues that (1) the State's petition for contempt violated his plea agreement, (2) his refusal to testify was not punishable as contempt, (3) the trial court erred in denying his motion for substitution of judge, and (4) his sentence was excessive. We affirm.

¶ 2 BACKGROUND

¶ 3 On January 29, 2009, a woman was fatally shot as she drove her car in Elgin. The day after the incident, the respondent admitted to the police that he was driving the sport utility vehicle (SUV) from which the shots were fired and that the shooting was gang-related. The respondent identified four other people who were inside the SUV with him at the time of the murder. The respondent was charged with first-degree murder under a theory of accountability, as was Manith Vilayhong, the passenger who ordered the shooting. Tony Rosalez was charged with first-degree murder as the alleged shooter.

¶ 4 In 2010, the respondent entered into a plea agreement with the State. In return for pleading guilty, the respondent was sentenced to 35 years' imprisonment, with an agreement that, after he testified against Vilayhong and Rosalez, the State, at its sole discretion, would vacate or delete the charge's reference to a firearm and would request that the 15–year firearm enhancement be vacated from his sentence. The respondent would thereby end up with a 20–year sentence.

¶ 5 On October 28, 2011, the State appeared in court for a status hearing on the case against Rosalez. The State asserted that the Rosalez trial was set to begin the following Monday and that it appeared that the respondent was planning to refuse to testify. The State requested that the respondent be brought before the court, placed under oath, and asked whether he intended to testify against Rosalez. The trial court granted the request and the respondent appeared with counsel. Upon questioning by the State as to whether he knew Rosalez or drove a white SUV on January 30, 2009, the respondent answered “No.” After a recess, the respondent's counsel explained that the respondent's stated response was not in relation to the question asked but was an indication that he did not want to answer any questions. The respondent then testified that “no” meant that he did not want to answer any questions.

¶ 6 The State then asked the respondent if he was driving an SUV on January 30, 2009, when Rosalez shot a gun out the window toward another vehicle. The respondent stated that he was not going to answer the question. The State then questioned the respondent as to whether he intended to refuse to answer any questions related to the shooting on January 30, 2009. The respondent answered “yes.” The following colloquy ensued:

MR. SAMS [Assistant State's Attorney]: Judge, I would ask that you admonish the [respondent] or that you order him to testify as he has asserted and has no right to decline to answer questions.

THE COURT: Ms. Yetter?

MS. YETTER [Defense Counsel]: Your Honor, I don't take a position on the State's request.

THE COURT: Okay, he isn't called as a witness in a case at this point, correct? This inquiry is so you can determine what you want to do Monday, correct?

MR. SAMS: Well, Judge, assuming with that, with his refusal to testify, Judge, I think I believe that I need for you to order him to testify.

Once he then continues to refuse to testify, we will deal with his case and his issue; but that's going to prompt me on Mr. Rozalez's [sic ] case this afternoon to file a motion to continue.

THE COURT: That would be the court's order, sir, directing you to answer the question posited by Mr. Sams. So this is the court's order that you answer the questions, sir.

Do you wish to have the question read again?

THE WITNESS: No, because I'm not gonna answer.

THE COURT: All right, sir, the court would find you in direct contempt. Remove that person right now.”

The State then indicated its intent to file a petition seeking to have the respondent adjudicated in direct criminal contempt.

¶ 7 On November 11, 2011, the State filed its petition for adjudication of direct criminal contempt. The petition stated that on October 28, 2011, the respondent “refused to testify despite the Court's order and persists in that refusal to testify.” The State noted in the petition that there was no maximum penalty for contempt and that it would be pursuing a sentence in excess of six months.

¶ 8 On January 3, 2012, Judge David Akemann vacated his October 28, 2011, order of contempt and recused himself from the case, finding that he might be a witness in the proceedings. The case was reassigned that same day to Judge James Hallock. Also on that day, the respondent filed a motion for substitution of judge, pursuant to section 114–5(a) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/114–5(a)

(West 2010)), requesting that his case be reassigned to a judge other than Judges Hallock and Patricia Piper Golden. On January 6, 2012, a hearing was held on the motion for substitution of judge. The State argued that this was a contempt case, which is considered neither civil nor criminal, and that the respondent was not entitled to a substitution of judge as of right. The respondent argued that the penalty being sought in this case was so severe that it was akin to a criminal case and that the respondent was entitled to a substitution of judge as of right just like any other criminal defendant. On January 20, 2012, the trial court denied the motion for substitution of judge, finding that a substitution of judge as of right was not available in a contempt proceeding.

¶ 9 On February 22, 2012, the respondent waived his right to a jury trial and the parties entered a written stipulation of evidence. Pursuant to that stipulation, the respondent acknowledged that he entered a plea agreement with the State as to his first-degree murder charge and that the agreement “required [the respondent] to testify truthfully in any case against any co-defendant.” He further acknowledged that on October 28, 2011, after having been sworn at the final pretrial hearing in the Rosalez case, he refused to answer any of the State's questions. Although the respondent stipulated to the evidence, he did not stipulate that the evidence supported a finding of contempt.

¶ 10 On March 22, 2012, a hearing was held on the contempt petition. On May 2, 2012, the trial court found that the respondent was in contempt on October 28, 2011, for failing to testify in the Rosalez case as ordered by the trial court. The trial court ordered a presentence investigation report.

¶ 11 On June 28, 2012, following the denial of the respondent's motion to reconsider the contempt finding, a sentencing hearing was held. The State submitted a written stipulation signed by the parties. Pursuant to that stipulation:

“Before going to trial, the respondent entered into an agreement with the People of the State of Illinois to testify against * * * Rosalez. The [plea] agreement required the [respondent to] give truthful testimony [in the case against Rosalez]. He would be sentenced to the minimum sentence of 20 years in prison plus the 15–year add-on. When he completed his end of the agreement, his sentence would be reduced to 20 years.”

The stipulation also indicated that the State proceeded in the case against Rosalez without the respondent's testimony. The other passengers testified to what occurred in the SUV, but they either were impeached or gave inconsistent statements. Rosalez was found guilty of first-degree murder, but the jury found not proven the allegation that Rosalez personally discharged the firearm. Rosalez was sentenced to 35 years in prison.

¶ 12 Following testimony and arguments of counsel, the trial court rendered its ruling. In mitigation, the trial court noted that the respondent's failure to testify did not cause or threaten physical harm. The trial court also considered that the respondent, other than his conviction of first-degree murder, did not have any criminal history. In aggravation, the trial court noted that the respondent's refusal to testify hindered the State's prosecution of Rosalez. The trial court found that the respondent's sentence should serve as a deterrent to other similar conduct. The trial court thus sentenced the respondent to 10 years' imprisonment, consecutive to his term for first-degree murder. Following the denial of the respondent's motion to reconsider, the respondent filed a timely notice of appeal.

¶ 13 ANALYSIS

¶ 14 The respondent's first contention on appeal is that the filing of the petition for adjudication of contempt violated the terms of his plea agreement. Specifically, the respondent argues that the State breached the plea agreement when it sought a contempt finding based on the respondent's failure to testify against Rosalez. The respondent notes that People v. Goodwin, 148 Ill.App.3d 56, 101 Ill.Dec. 752, 499 N.E.2d 119 (1986)

, supports a finding of contempt based on a defendant's refusal to testify pursuant to a plea agreement. See id. at 61, 101 Ill.Dec. 752, 499 N.E.2d 119 (a defendant who promises, as a part of a plea agreement, to give testimony in aid of the prosecution waives fifth amendment rights in that respect and is subject to a contempt sanction for refusal to do so). The...