2014 IL App (2d) 120946 No. 2-12-0946 Opinion filed June 26, 2014

___________________________________________________ ___________________________ IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

___________________________________________________ ___________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit C ourt OF ILLINOIS, ) of Kane County. ) Petitioner-Appellee, ) ) v. ) No. 11-CC-42 ) ) Honorable RAUL PEREZ-GONZALEZ, ) David R. Akemann and ) James C. Hallock, Respondent-Appellant. ) Judges, Presiding.

___________________________________________________ ___________________________ JUSTICE SCHOSTOK delivered the judgment of the cour t, with opinion. Presiding Justice Burke and Justice Birkett concurr ed in the judgment and opinion.

OPINION ¶ 1 The respondent, Raul Perez-Gonzalez, was convicted of direct criminal contempt of court and subsequently sentenced to 10 years’ imprisonmen t. 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 i n 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 sh e drove her car in Elgin. The day after the incident, the respondent admitted to the police that he was driving the sport utility2014 IL App (2d) 120946

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vehicle (SUV) from which the shots were fired and t hat the shooting was gang-related. The respondent identified four other people who were in side the SUV with him at the time of the murder. The respondent was charged with first-degr ee 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 agreeme nt 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 Rosa lez, the State, at its sole discretion, would vacate or delete the charge’s reference to a firear m and would request that the 15-year firearm enhancement be vacated from his sentence. The resp ondent would thereby end up with a 20-year

sentence. ¶ 5 On October 28, 2011, the State appeared in court fo r 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 ref use to testify. The State requested that the respondent be brought before the court, placed unde r oath, and asked whether he intended to testify against Rosalez. The trial court granted t he request and the respondent appeared with counsel. Upon questioning by the State as to wheth er he knew Rosalez or drove a white SUV on January 30, 2009, the respondent answered “No.” Af ter 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 qu estions. The respondent then testified that “no” meant that he did not want to answer any quest ions. ¶ 6 The State then asked the respondent if he was drivi ng an SUV on January 30, 2009, when Rosalez shot a gun out the window toward another ve hicle. The respondent stated that he was2014 IL App (2d) 120946

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not going to answer the question. The State then q uestioned 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 wou ld ask that you admonish the [respondent] or that you order him to testify a s 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 t ake 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 wil l 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, di recting 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.”2014 IL App (2d) 120946

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The State then indicated its intent to file a petit ion 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 t estify.” The State noted in the petition that ther e was no maximum penalty for contempt and that it wou ld 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 j udge, 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 f or 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 ju dge as of right. The respondent argued that the penalty being sought in this case was so severe tha t 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 de nied the motion for substitution of judge, finding that a substitution of judge as of right wa s not available in a contempt proceeding. ¶ 9 On February 22, 2012, the respondent waived his rig ht to a jury trial and the parties entered a written stipulation of evidence. Pursuan t to that stipulation, the respondent acknowledged that he entered a plea agreement with the State as to his first-degree murder2014 IL App (2d) 120946

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charge and that the agreement “required [the respon dent] 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 contem pt petition. On May 2, 2012, the trial court found that the respondent was in contem pt on October 28, 2011, for failing to testify in the Rosalez case as ordered by the trial court. Th e trial court ordered a presentence investigation

report. ¶ 11 On June 28, 2012, following the denial of the respo ndent’s motion to reconsider the contempt finding, a sentencing hearing was held. T he State submitted a written stipulation signed by the parties. Pursuant to that stipulatio n: “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 cas e against Rosalez]. He would be sentenced to the minimum sentence of 20 years in pr ison 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 proce eded in the case against Rosalez without the respondent’s testimony. The other passengers testi fied to what occurred in the SUV, but they either were impeached or gave inconsistent statemen ts. Rosalez was found guilty of first-degree murder, but the jury found not proven the allegatio n that Rosalez personally discharged the firearm. Rosalez was sentenced to 35 years in pris on.2014 IL App (2d) 120946

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¶ 12 Following testimony and arguments of counsel, the t rial court rendered its ruling. In mitigation, the trial court noted that the responde nt’s failure to testify did not cause or threaten physical harm. The trial court also considered tha t the respondent, other than his conviction of first-degree murder, did not have any criminal hist ory. In aggravation, the trial court noted that the respondent’s refusal to testify hindered the St ate’s prosecution of Rosalez. The trial court found that the respondent’s sentence should serve a s a deterrent to other similar conduct. The trial court thus sentenced the respondent to 10 yea rs’ imprisonment, consecutive to his term for first-degree murder. Following the denial of the r espondent’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 w hen it sought a contempt finding based on the respondent’s failure to testify against Rosalez. T he respondent notes that People v. Goodwin , 148 Ill. App. 3d 56 (1986), supports a finding of c ontempt based on a defendant’s refusal to testify pursuant to a plea agreement. See id. at 61 (a defendant who promises, as a part of a pl ea agreement, to give testimony in aid of the prosecut ion waives fifth amendment rights in that respect and is subject to a contempt sanction for r efusal to do so). The respondent argues, however, that Goodwin is distinguishable because, unlike in the present case, in Goodwin there was no predetermined consequence in the event of no ncompliance. Specifically, in the present case, the respondent’s failure to comply meant that the State would not move to vacate the 15- year add-on.2014 IL App (2d) 120946

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¶ 15 Both the State and the defendant are bound by terms of a plea agreement. People v. Whitfield , 217 Ill. 2d 177, 190 (2005). Plea agreements are governed to some extent by principles of contract law. People v. Evans , 174 Ill. 2d 320, 326 (1996). However, plea agreements are constitutionally based and therefore “reflect[ ] concerns that differ fundamentally

from and run wider than those of commercial contrac t law.” (Internal quotation marks omitted.)

Id. For example, if a plea of guilty is entered in re liance on a plea agreement, a defendant may have a due process right to enforce the agreement. Whitfield , 217 Ill. 2d at 189. As such, the application of contract law to plea agreements may require modification in some instances.

Evans , 174 Ill. 2d at 326-27. The construction or inter pretation of a contract and its legal effect presents a question of law, which we review de novo

. Avery v. State Farm Mutual Automobile

Insurance Co. , 216 Ill. 2d 100, 129 (2005). ¶ 16 In the present case, the State’s petition for adjud ication of contempt did not violate the plea agreement. The parties stipulated to the cont ent of the plea agreement. Further, pursuant to our request, the respondent supplemented the record with a transcript of his 2010 guilty plea hearing. Moreover, the State supplemented the reco rd with a copy of the written plea offer. The discussion of the plea agreement at that hearing an d the written plea offer are in consonance with the stipulations entered by the parties. The Febru ary 22, 2012, stipulation stated that the plea agreement “required” the respondent to testify “in any case against any co-defendant.” The June 28, 2012, stipulation stated that the plea agreemen t “required” the respondent to give truthful testimony against Rosalez. The October 28, 2011, h earing was part of the “case” against

Rosalez. Accordingly, based on the stipulations, the plea ag reement clearly required the respondent to testify against Rosalez at that heari ng and his failure to do so violated that

agreement.2014 IL App (2d) 120946

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¶ 17 The respondent notes that at the October 28, 2011, hearing, the State described the plea agreement as follows:

“[The respondent’s] plea agreement was he—was he pl ed guilty to first degree murder; was sentenced to 35 years with an agreement that when he completed his cooperation in this case, at the sole discretion of the State, we would ask the court to vacate the 15-year add-on in his case, and he would end up with a 20-year sentence on his case as opposed to 35.” The respondent argues that the plea agreement had a built-in sanction (if he refused to testify the State would not move to vacate the 15-year add-on) and that the State’s petition for contempt was a further sanction that was contrary to the agr eement. We disagree. Nothing in the stipulations or at the October 2011 hearing support s this argument. The stipulations do not indicate that the State agreed that the only conseq uence for the respondent’s failure to testify would be the State’s not moving to vacate the 15-ye ar add-on. The statement at the October 2011 hearing indicates that the plea agreement was in exchange for the respondent’s testimony and that, when he completed his testimony, the Stat e could, in its discretion, move to vacate the 15-year add-on. As the plea agreement required the respondent to testify at the Rosalez trial, the State did not violate the agreement by petitioning for an adjudication of contempt when he refused to testify. Goodwin , 148 Ill. App. 3d at 61. ¶ 18 Moreover, even if we were to view the plea agreemen t as containing a built-in sanction and, therefore, the State as having breached the ag reement by petitioning for an adjudication of contempt, it would still not provide a defense for the respondent to the charge of contempt. “The public is entitled to any man’s evidence concerning criminal acts committed by another.” United

States v. Patrick , 542 F.2d 381, 388 (7th Cir. 1976). Here, the cou rt ordered the respondent to2014 IL App (2d) 120946

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testify at the October 28, 2011, hearing and the co urt was empowered to compel his testimony.

See id. Accordingly, even if the State had breached the p lea agreement, the breach would not have authorized the respondent to refuse the court’ s order to testify at the October 28, 2011, hearing. See United States v. Simmons , 215 F.3d 737, 741 (7th Cir. 2000) (holding that e ven if the government breached the plea agreement, the def endant should have testified as ordered by the court and brought a separate action to enforce the terms of the plea agreement). ¶ 19 The respondent next argues that his refusal to answ er questions at the pretrial hearing was not punishable as contempt, because the plea agreem ent required him to testify at Rosalez’s trial, and the October 28, 2011, hearing was not the trial . In arguing that the respondent was properly found in contempt prior to Rosalez’s trial, the Sta te relies on People v. Powers , 122 Ill. App. 3d 629 (1984). In Powers , the defendant was being prosecuted for arson. Hi s attorney filed a motion for a temporary restraining order (TRO) to p revent the State from using certain testimony obtained in a grand jury proceeding. The trial cou rt denied the TRO and set the matter for trial. The attorney filed an interlocutory appeal. Id. at 629-30. ¶ 20 Just prior to the start of trial, the attorney argu ed that the interlocutory appeal divested the trial court of jurisdiction and, therefore, neither he nor his client would participate in the trial. The trial court granted a motion by the State to qu ash the appeal because the defendant did not have a right to an interlocutory appeal in a crimin al case. Id. at 630. The trial court warned the attorney that, if he did not participate in the tri al, he would be held in contempt. The attorney refused to comply with the judge’s request and was thus held in direct criminal contempt of

court. Id. The attorney appealed. Id. The reviewing court affirmed the finding of conte mpt: “Here, we have a case of direct criminal contempt. The lawyer and judge were face to face shortly before trial. [The trial court] expli citly instructed [the attorney] that if he did2014 IL App (2d) 120946

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not participate in the trial, he would be held in c ontempt. [The attorney] deliberately chose not to respect the wishes of the court and pr evented the court from holding the trial. Such an act by a lawyer can be characterized as not hing other than conduct calculated to

hinder or obstruct a court in its administration of justice, or to derogate from its authority or dignity. [Citation.] Thus, it was criminally c ontemptuous.” Id. at 631. ¶ 21 We find the State’s reliance on Powers persuasive. Powers demonstrates that a finding of criminal contempt is proper based on actions tha t occur before a trial begins and cause a delay in the trial. In the present case, the respondent’ s refusal to testify resulted in a delay of Rosalez ’s trial. Although as in Powers the trial had not yet begun, the respondent was ca lled and ordered to testify at the final pretrial hearing and his fa ilure to testify resulted in the State’s having to file a motion to continue. The State’s petition indicat ed that the respondent “persist[ed]” in his refusal to testify. We note that Rosalez was not t ried until early 2012. The record demonstrates that during the pendency of these contempt proceedi ngs the respondent never changed his mind about refusing to testify and that in fact he never testified at the Rosalez trial. As in Powers , the respondent’s conduct clearly qualified as criminal contempt. See also United States v. Johnson , 752 F.2d 206, 210 (6th Cir. 1985) (the refusal to t estify at a pretrial deposition hearing was not anticipatory contempt; rather, it was a present ref usal to testify at the proceeding itself and was a proper basis for a contempt finding). ¶ 22 In so ruling, we find the respondent’s reliance on State v. Matos , 640 A.2d 1176 (N.J. Super. 1994), unpersuasive. Matos involved the question of whether a witness could b e held in civil contempt of court based on a statement that h e intended not to testify. In Matos , the State sought and the trial court approved a grant of immu nity in order to compel the defendant to testify against his codefendants. The trial court held the defendant in contempt when the2014 IL App (2d) 120946

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defendant stated at a hearing that he did not inten d to testify despite the grant of immunity. The defendant appealed from the contempt finding. The reviewing court reversed the contempt finding and held that “[d]efendant should not have been adjudged guilty of contempt in anticipation of his future refusal ‘to answer a que stion’ not yet formulated or asked of him.” Id.

at 1184. ¶ 23 The Matos court’s determination was based on an interpretatio n of a statute that specifically related to finding an individual in co ntempt when immunity had been given. The statute provided that in any criminal proceeding be fore a court or grand jury: “ If a person refuses to testify after being granted immunity from prosecution and after being ordered to testify as aforesaid , he may be adjudged in contempt and committed to t he county jail until such time as he purges himself of contempt by testifying as ordered ***.” (Emphases in original.) Id. at 1181.

The court thus asserted that its decision turned on whether the hearing at which the defendant stated that he did not intend to testify and was ad judged in contempt constituted “criminal proceedings before a court or grand jury” as requir ed by the statute. (Internal quotation marks omitted.) Id. at 1182. The hearing was not the codefendant’s tr ial. Rather, the hearing was held solely for the purpose of determining whether the d efendant was going to testify at the codefendant’s trial at some unspecified time in the future. The court held, therefore, that the hearing did not fall within the statutory requireme nt of a criminal proceeding, nor did the defendant’s conduct fit within the conduct to be pu nished, i.e. , refusal to testify. ¶ 24 Matos is distinguishable from the present case. First, Matos dealt with the interpretation of a statute not at issue in this case. Further, t he Matos defendant was merely asked if he intended to comply with the court order to testify at some unspecified time in the future. In the present case, the respondent was brought before the court at the final pretrial hearing on the2014 IL App (2d) 120946

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Rosalez case, placed under oath, and asked the ques tions he was going to be asked at trial. The court ordered the respondent to answer those questi ons at that time. The respondent stated that he had no intention of answering any questions aske d by the prosecutor. Thus, unlike in Matos , the respondent was ordered to testify at the hearin g that resulted in his adjudication of contempt. ¶ 25 Further, Matos involved a finding of civil contempt and the holdi ng was based on the

rationale that such a coercive sanction could not b e imposed where the time for performance had not yet arrived. Civil contempt involves sanctions that are prospective and seek to coerce particular conduct. People v. R.J. Reynolds Tobacco Co. , 2011 IL App (1st) 101736, ¶ 33. Criminal contempt is designed to punish past conduc t. Id. In the present case, the respondent was found in criminal contempt for failing to testi fy as agreed to in his plea agreement and as ordered by the trial court. ¶ 26 The respondent’s next contention on appeal is that the trial court erred in denying his motion for substitution of judge. The respondent h ad filed his motion for substitution pursuant to section 114-5(a) of the Code (725 ILCS 5/114-5(a) ( West 2010)), which provides: “§ 114-5. Substitution of judge. (a) Within 10 da ys after a cause involving only one defendant has been placed on the trial call of a ju dge the defendant may move the court in writing for a substitution of that judge on the gro und that such judge is so prejudiced against him that he cannot receive a fair trial. U pon the filing of such a motion the court shall proceed no further in the cause but shall tra nsfer it to another judge not named in the motion. The defendant may name only one judge as p rejudiced, pursuant to this subsection; provided, however, that in a case in wh ich the offense charged is a Class X felony or may be punished by death or life imprison ment, the defendant may name two judges as prejudiced.”2014 IL App (2d) 120946

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¶ 27 The parties disagree as to whether section 114-5(a) of the Code is applicable to criminal contempt proceedings. In People v. Doss , 382 Ill. 307 (1943), a case involving indirect cr iminal contempt, our supreme court noted that the venue st atute allowed for only one change of venue and that, because the defendant had already been gr anted two requests for change of venue, his third request was properly denied. Id. at 311. The court went on to note that “there is respectable authority for the proposition that stat utory provisions relative to change of venue do not apply to proceedings to punish contempts, unles s such proceedings are expressly included, eo

nomine , in the statute.” Id. “The reason assigned for inapplicability of chang e of venue statutes to contempt proceedings is that a contempt is neith er civil nor criminal in fact, but sui generis .”

Id. at 311-12. ¶ 28 Doss was subsequently cited in another indirect-crimina l-contempt case for the proposition that the statute allowing for substitut ion of judge as of right in a criminal case does not apply to criminal contempt proceedings. See People v. Parker , 397 Ill. 305, 308 (1947). In

Parker , our supreme court stated: “The petition for change of venue on account of pre judice of two of the judges does not come within the provisions of the venue statute in contempt proceedings. (Ill. Rev. Stat. 1945, chap. 146, par. 21a [allowing for substitutio n of judge ‘in contempt proceedings [only] from judge impugned’].) The right to change of venue is statutory, and the applicant must bring himself within the statutory r equirements. [Citation.] No other provision for change of venue in contempt cases app ears in the statute.” Id. (citing Doss for the proposition that “the general statute perta ining to change of venue in criminal cases” does not apply to criminal contempt proceedi ngs, which are sui generis ).2014 IL App (2d) 120946

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Accordingly, the court held that the criminal statu te relating to change of venue, or substitution of judge as of right, did not apply in criminal con tempt proceedings. ¶ 29 However, in People v. Goss , 10 Ill. 2d 533, 548 (1957), a case that involved indirect criminal contempt, our supreme court found that the statute that allowed for substitution of judge as of right by the filing of an affidavit of prejud ice (Ill. Rev. Stat. 1955, ch. 146, ¶ 21 (now 725 ILCS 5/114-5(a) (West 2010))) was applicable to a c riminal contempt proceeding and that the

trial court erred when it denied the defendant’s re quest for change of venue. Further, in People ex rel. Kunce v. Hogan , 67 Ill. 2d 55, 62 (1977), a more recent case invo lving direct criminal contempt, the defendant argued that the trial court erred in denying his motion for substitution of judge. In response, our supreme court stated:

“Section 114-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-5) provides that in criminal cases there i s an absolute right to a substitution of judges from two judges on general allegations of pr ejudice. The statute also provides for an unlimited number of substitution of judges for c ause.” Id. at 63. Our supreme court held that the denial was proper—n ot because the statute was not inapplicable, but because the motion did not comply with the stat ute. Id. Specifically, by requesting disqualification of all the judges in the circuit, the motion named more judges than authorized by the statute, which allowed the naming of only two j udges. Id. Kunce and Goss have since been cited for the proposition that substitution of judg e as of right under section 114-5(a) of the Code is applicable in criminal contempt proceedings. Se e Payne v. Coates-Miller, Inc. , 68 Ill. App. 3d 601, 608 n.4 (1979) (citing Kunce ); People v. Wright , 20 Ill. App. 3d 96, 103 (1974) (citing

Goss ); see also Hoga v. Clark , 113 Ill. App. 3d 1050, 1059 (1983) (citing Payne and Wright for this proposition); SKS & Associates, Inc. v. Dart , 2012 IL App (1st) 103504, ¶ 21 (citing Hoga ).2014 IL App (2d) 120946

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¶ 30 Based on the foregoing authority, we find that the case law is not clear, as neither Kunce

nor Goss acknowledged Doss and Parker . Nonetheless, Kunce and Goss are our supreme court’s most recent word on this issue, and we therefore fo llow them. See People v. Perkins , 367 Ill. App. 3d 895, 905 (2006). Accordingly, the trial co urt was incorrect when it stated that substitution of judge as of right pursuant to secti on 114-5(a) was not available in a criminal contempt proceeding. ¶ 31 Nonetheless, we may affirm on any basis appearing i n the record. See People v. Dinelli , 217 Ill. 2d 387, 403 (2005) (noting that an appeals court may affirm a trial court's ruling on any basis appearing in the record). In the present case, although the trial court’s rea soning might have been improper, it did not err in denying the m otion for substitution of judge, because the respondent’s motion was not in proper form. The re spondent’s motion named two judges— Judge Hallock and Judge Golden—rather than one judg e as allowed for in the statute. See 725 ILCS 5/114-5(a) (West 2010). The failure to file s uch a motion in proper form is a sufficient basis on which to deny the motion. People v. Saunders , 135 Ill. App. 3d 594, 600 (1985) (citing

Kunce , 67 Ill. 2d at 63). ¶ 32 The respondent notes that contempt has no sentencin g guidelines ( People v. Geiger , 2012 IL 113181, ¶ 27), and he argues that therefore it i s possibly punishable by death or life imprisonment. Thus, he reasons, he was permitted t o name two judges in his motion. In so arguing, the respondent is relying on the portion o f the statute indicating that “in a case in which the offense charged is a Class X felony or may be p unished by death or life imprisonment, the defendant may name two judges as prejudiced.” 725 ILCS 5/114-5(a) (West 2010). ¶ 33 The respondent correctly cites Geiger for the proposition that contempt has no sentencin g classification or sentencing range set by the legis lature. Geiger , 2012 IL 113181, ¶ 24.2014 IL App (2d) 120946

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Accordingly, it is axiomatic that contempt is not a Class X felony. Id. ; see also 730 ILCS 5/5- 4.5-25 (West 2010) (setting forth the sentencing gu idelines for a Class X felony). The question then is whether contempt “may be punished by death or life imprisonment” (725 ILCS 5/114- 5(a) (West 2010)). Although contempt has no statut ory sentencing guidelines, a trial court is bound by certain principles when sentencing for con tempt. Criminal contempt is punishable by fine or imprisonment or both. Bloom v. Illinois , 391 U.S. 194, 201 (1968). However, a sentence of imprisonment must not be “greatly at variance wi th the spirit and purpose of the law, or manifestly disproportionate to the nature of the of fense.” (Internal quotation marks omitted.) People v. Alexander , 239 Ill. 2d 205, 212 (2010) (quoting People v. Stacey , 193 Ill. 2d 203, 210 (2000)). Further, the punishment for contempt shou ld reflect the least possible power adequate to the end proposed. United States v. Bukowski , 435 F.2d 1094, 1110 (7th Cir. 1970). Based on these principles, a sentence of death for contempt is not permissible. Bloom , 391 U.S. at 201. Further, a sentence of life imprisonment for contem pt, under the present circumstances, would be disproportionate to the nature of the offense. See Geiger , 2012 IL 113181, ¶ 29 (supreme court held that a 20-year sentence for criminal contempt, based on a defendant’s refusal to testify as a State’s witness in double murder prosecution, was m anifestly disproportionate to the nature of the offense). Accordingly, we reject the respondent’s argument t hat he was entitled to name two judges in his motion. ¶ 34 The respondent’s final contention on appeal is that his sentence of 10 years’ imprisonment constituted an abuse of discretion. A sentence imposed for direct criminal contempt is reviewed for an abuse of discretion. Id. ¶ 27. A court abuses its discretion when a sentence varies greatly from the spirit and purpose of the law or is manifestly disproportionate to

the nature of the offense. Id. A reviewing court must give great deference to a trial court’s2014 IL App (2d) 120946

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sentence because the trial judge, having observed t he defendant and the proceedings, is in a better position to consider “the defendant’s credib ility, demeanor, moral character, mentality, environment, habits, and age.” People v. Snyder , 2011 IL 111382, ¶ 36. Because there are no sentencing guidelines in contempt cases, reviewing courts must ensure that the contempt power is not abused and, if necessary, should revise the sentences imposed. Geiger , 2012 IL 113181, ¶ 27

. In determining an appropriate sentence for crimin al contempt, a court should consider the following factors: “(1) the extent of the willful a nd deliberate defiance of the court’s order, (2) the seriousness of the consequences of the contumac ious behavior, (3) the necessity of effectively terminating the defendant’s defiance as required by the public interest, and (4) the importance of deterring such acts in the future.” Id. ¶ 28 (citing United States v. United Mine Workers of America , 330 U.S. 258, 302-03 (1947)). ¶ 35 In Geiger , the defendant was found guilty of direct criminal contempt for refusing to testify as a State’s witness at a murder trial, and he was sentenced to 20 years’ imprisonment. Id. ¶ 1. Our supreme court held that the sentence was manifestly disproportionate to the nature of

the offense. Id. ¶ 29. In reaching that conclusion the court consi dered: (1) the defendant’s refusal to testify was based on a mistaken belief t hat he had a fifth amendment right not to testify; (2) his refusal to testify might have been driven by fear of retaliation (the defendant was a gang member and the murder was gang-related); (3) t he refusal to testify did not hamper the State’s ability to prosecute the individual on tria l for murder (who was convicted and sentenced to life imprisonment); and (4) the defendant’s cont emptuous conduct was nonviolent and he was not flagrantly disrespectful to the trial judge. Id. ¶¶ 29-31. The court remanded the matter for the trial court to impose a more reasonable sentenc e. Id. ¶ 32.2014 IL App (2d) 120946

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¶ 36 The respondent argues that the circumstances here a re similar to those in Geiger

. Similarities include the prospect of gang retaliati on, that Rosalez was convicted of first-degree murder despite the absence of the respondent’s test imony, and that the respondent did not act against the court in a violent or flagrantly disres pectful way. The respondent further argues that there is no published Illinois case involving a con tempt sentence longer than six months and that the only federal case where the court affirmed a co ntempt sentence as long as 10 years involved the defendant’s attacking a witness with a screwdri ver ( United States v. Di Paoli , 804 F.2d 225, 234 (2d Cir. 1986)). The respondent points out tha t federal courts that have reduced sentences for contempt have found it illogical to punish peop le more severely for refusing to testify than for testifying falsely. (The maximum sentence for perjury in federal court is five years’ imprisonment.) See United States v. Gracia , 755 F.2d 984, 990 (2d Cir. 1985) (9-year sentence for refusing to testify reduced to 4 years); United States v. Gomez , 553 F.2d 958, 959 (5th Cir. 1977) (15-year sentence for refusing to testify red uced to 2 years). ¶ 37 The State argues that the sentence is not excessive , because (1) the respondent had no right to refuse to testify, and (2) due to his fail ure to testify, the State was unable to prove that Rosalez was the shooter, which precluded a statutor y 25-year add-on to Rosalez’s sentence. The State also notes the severity of the underlying cri me and that the respondent chose to protect fellow gang members rather than to “align himself w ith the recognized government of our society and seek justice for the innocent victim.” ¶ 38 We agree with the State. The factors listed in United Mine Workers favor imposition of a substantial sentence. As to the first factor, the respondent’s refusal to testify was willful and

deliberate as he was not under a mistaken belief th at he had a fifth amendment right not to testify. Additionally, regarding the second factor , the underlying crime at issue here, first-degree2014 IL App (2d) 120946

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murder, was serious and the respondent’s failure to testify hindered the public interest in finding the truth and seeking justice. Finally, as to the third and fourth factors, the public interest in terminating the defiance and the importance of futu re deterrence both favor a substantial sentence. The severity of the sentence here proper ly deters future witnesses from refusing to testify and obstructing the administration of justi ce in serious criminal cases. The trial court specifically stated that the respondent’s failure t o testify hindered the prosecution of Rosalez and

that the sentence was meant to serve as a deterrent to future witnesses. The trial court’s sentencing decision is entitled to great deference. Accordingly, we cannot say that the trial court abused its discretion in imposing the sentence. ¶ 39 As noted, in arguing that his sentence is excessive , the respondent points to federal cases where contempt sentences were reduced because court s found it illogical to punish contempt more severely than perjury. In Illinois, perjury i s a Class 3 felony punishable by two to five years’ imprisonment. 730 ILCS 5/5-4.5-40 (West 201 0). However, an extended term of 5 to 10 years may be imposed if there are aggravating facto rs present. See 730 ILCS 5/5-8-2(a), 5-5- 3.2(b) (West 2010). Here, the respondent would hav e been eligible for an extended-term sentence for perjury, based on his prior conviction of the same or a greater class offense— specifically, his murder conviction. See 730 ILCS 5/5-5-3.2(b)(1) (West 2010). Accordingly, the respondent’s insinuation that his 10-year sente nce for contempt is more onerous than a possible sentence for perjury is without merit. ¶ 40 CONCLUSION ¶ 41 For the foregoing reasons, the judgment of the circ uit court of Kane County is affirmed. ¶ 42 Affirmed.