People v. Covington ( 2009 )

NO. 4-08-0930 Filed 10/22/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) DeWitt County
ARTHUR J. COVINGTON, ) No. 04DT42
Defendant-Appellant. )
) Honorable
) Chris E. Freese,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In August 2008, the State petitioned the trial court to
adjudicate defendant, Arthur J. Covington, in indirect criminal
contempt of court for failing to comply with the court’s August
1, 2008, order requiring him to find full-time employment by
August 25, 2008. In November 2008, the court found defendant in
indirect criminal contempt of court, sentenced him to six months
in jail, and ordered him to pay $796.50 in jail-meal fees.
Defendant appeals, arguing (1) the trial court lacked
subject-matter jurisdiction to find he violated a condition of
the original December 2005 supervision order, (2) the court’s use
of improper contempt procedures violated his due-process rights,
and (3) if this court remands the case, it should be remanded to
a different judge. We vacate the trial court's order finding
defendant in indirect criminal contempt and remand for further
proceedings not inconsistent with this opinion.
I. BACKGROUND
In June 2004, the State charged defendant by citation
with two counts of driving under the influence of alcohol (DUI)
(625 ILCS 5/11-501(a)(2) (West 2004)).
In November 2005, defendant pleaded guilty to count I
of DUI. On the State’s motion, the trial court dismissed count
II.
In December 2005, the trial court sentenced defendant
as follows:
"I am placing you on supervision for a
period of 24 months. You are to report twice
a month to the probation office, pay a
$25.00[-]per[-]month supervision fee, fined
$1,000.00, pay the $100.00 DUI equipment fee,
refrain from using or possessing alcohol,
cannabis, or controlled substances, undergo
random testing, not enter any establishment
that has as its primary source of income the
sale of alcohol, obtain an alcohol and drug
evaluation within 30 days of today’s date,
complete any recommended treatment within six
months, attend VIP, obey the statutory terms
and conditions of supervision."
The April 11, 2007, docket entry shows "FINE AND COSTS
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PAID IN FULL [AS OF] THIS DATE."
In June 2007, the State filed a petition to revoke
defendant’s supervision, alleging defendant violated supervision
by testing positive for cannabis on May 21, 2007, admitting
smoking cannabis on May 17, 2007, and failing to complete the DUI
evaluation within the first 30 days and the recommended 10-hour
DUI risk education classes within the first 6 months.
In August 2007, the State filed an amended petition to
revoke defendant’s supervision, alleging defendant again tested
positive for cannabis on August 15, 2007.
In October 2007, the trial court held a hearing on the
State’s petition and revoked defendant’s supervision.
In November 2007, the trial court entered a written
order unsuccessfully discharging defendant’s supervision, entered
a judgment of conviction, and sentenced defendant to 90 days in
jail. The court also ordered defendant to pay $398.25 in jail-
meal fees.
In March 2008, the trial court called the case for
hearing on defendant’s ability to pay the jail-meal fees. No
transcript of the proceeding is included in the record. However
the March 14, 2008, docket entry shows the following:
"[The People] appear by SA Jerry Johnson.
[Defendant] appears pro se. Cause called for
[hearing] on ability to pay. [Defendant]
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states he is unemployed and on [motion] of
[the People] cause reset for further review
to April 25, 2008, at 10 a.m. [Defendant]
ordered to return said date with 20
completed/submitted job [applications]."
The parties agree the court ordered defendant to appear on April
25, 2008, with 20 completed and submitted job applications.
On April 25, 2008, defendant appeared pro se and
informed the trial court he was unemployed. However, defendant
failed to present any job applications to the court.
In May 2008, the State filed "A Petition For Rule To
Show Cause Indirect Civil Contempt," alleging defendant willfully
and contumaciously violated an order of the trial court by
failing to return to court on April 25, 2008, with 20 completed
and submitted job applications.
In June 2008, the trial court held a hearing on the
State’s petition. Defendant appeared pro se and admitted he had
failed to bring the job applications to court. The court found
defendant in willful contempt of court for failing to obey the
March 14, 2008, order. The court then ordered defendant to purge
himself of contempt by reappearing in court each weekday morning
at 8:45 a.m. with a completed and submitted job application until
he obtained employment.
Between June 20, 2008, and July 7, 2008, defendant
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appeared each weekday with a completed and submitted job applica-
tion.
On July 8, 2008, defendant’s case was reassigned to
Judge Chris Freese due to the retirement of Judge Stephen Peters.
Defendant continued to appear each weekday with a job application
through July 29, 2008.
On August 1, 2008, defendant appeared pro se and
notified the trial court he was not currently employed. The
court sua sponte ordered defendant to obtain full-time employment
by August 25, 2008, or face indirect criminal contempt. The
following colloquy took place:
"THE COURT: Well Mr. Covington, we’re
going to change tactics here. I’m simply
going to order you to get a job and be full-
time employed by the next time you come to
court. If you are not employed, we are going
to go directly to indirect criminal contempt
for which, if you are found in indirect crim-
inal contempt, you can be sentenced to six
months in the county jail. If you don’t wish
to work, that’s fine, but you will be going
to jail when you’re found in contempt. I am
not going to have you come back into court
every week to show you have applied for a
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job. I am ordering you to find full-time
employment. Doesn’t matter if it’s working
at McDonald’s; doesn’t matter if it’s hauling
garbage, or mowing yards. Unless you have a
letter from a doctor that says you’re incapa-
ble of holding any type of employment, I
expect you to be employed by the next court
date. Do you understand that?
[DEFENDANT:] I have been coming in
everyday [sic], not every week.
THE COURT: And you’re coming back again,
and the next court date you will either have
a job, or we will arraign you on a contempt
petition. I am not going to mess around with
this case any further. Do you understand
that?
[DEFENDANT:] NO RESPONSE BY DEFENDANT.
THE COURT: Do you understand that, Mr.
Covington? You either have a job by the next
court date, or we go to arraignment on a
contempt petition? Is that clear?
[DEFENDANT:] I thought I was in con-
tempt. That’s why I was here anyway.
THE COURT: Not according to what I show.
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It shows here this [case] is set for further
proceedings.
[DEFENDANT:] But--
THE COURT: Mr. Johnson[,] what is your
understanding of this case?
MR. JOHNSON [(Assistant State’s Attor-
ney)]: Judge, it[’]s been--we have been re-
viewing his ability to pay.
[DEFENDANT:] I’m not in contempt.
THE COURT: I don’t show a contempt peti-
tion on file, unless you’re aware of
something--
MR. JOHNSON: We have been continuing
this case on review of his ability to pay,
and [Judge Peters] has been ordering him to
come in everyday [sic] with a job applica-
tion.
THE COURT: All right. Let’s back up.
There is a contempt petition on file as of
May 1, 2008. Let’s see if there’s ever been
an entry made on that case. This file is a
mess.
MR. JOHNSON: Judge, on June 18, there
was a contempt petition filed.
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THE COURT: All right.
MR. JOHNSON: And it was set for review,
so that’s where we’re at--indirect civil
contempt.
THE COURT: All right, then, we will
simply call the case for sanctions. Recom-
mendations from the People.
MR. JOHNSON: Judge, the situation was
that on the [p]etition for [i]ndirect [c]ivil
[c]ontempt of [c]ourt, he did not bring in
the 20 completed and submitted job applica-
tions, but since that time, he’s brought in
about 25 job [applications,] so he’s complied
with what [Judge Peters] wanted, so at this
time, it seems I wouldn’t be recommending
that the sentence be to the DeWitt County
[j]ail on that [p]etition for [c]ontempt.
THE COURT: All right. Show, no sanc-
tions will be imposed. Court, on its own
motion, is going to order the defendant to
find full-time employment. That’s 40 hours a
week, one or multiple jobs. If you’re not
employed by the next court date, we will move
forward with indirect criminal contempt for
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which you can go to jail for a specific sen-
tence up to six months and be fined up to
$500.00. You have until August 25, 2008, at
9 a.m. to be employed full-time. You are
ordered to appear that date. If you are not
employed full-time, the State will have an
[i]ndirect [c]riminal [c]ontempt [p]etition
ready to be filed, and we will arraign you on
that contempt petition."
On August 25, 2008, defendant appeared pro se and
informed the trial court he had not yet obtained employment. The
court ordered the State to file a petition for indirect criminal
contempt.
On August 26, 2008, the State filed a petition titled
"Petition For Rule To Show Cause Indirect Criminal Contempt,"
alleging defendant willfully and contumaciously violated an order
of the trial court by failing to obtain full-time employment by
August 25, 2008.
On November 5, 2008, the trial court held a hearing on
the State’s petition. Defendant appeared pro se. Neither the
State nor defendant presented any evidence. However, the State
asked the court to take judicial notice of the previous proceed-
ings. The court found defendant in indirect criminal contempt,
sentenced him to six months in jail, with day-for-day credit to
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apply, and ordered him to pay $796.50 in jail-meal fees.
At the conclusion of the hearing, the trial court
informed defendant he would have 30 days from his release from
jail--until "February 25, 2009, at 8:30"--to find full-time
employment or else the court would again find him in contempt and
send him back to jail for another six months. The court stated
the following:
"[T]he court is going to take this ap-
proach. We’re going to have indirect crimi-
nal contempt petitions filed every [four]
months; because if you’re sentenced on every
one of them to [six] months in jail, you’re
going to serve [three] months. I’ll give you
another 30 days to find a job. We’ll come
back. We’ll start the process over. If
you’re found in contempt again, you [will] go
back to jail for another [six] months. And
we will do this [for] as long as I am sitting
here or until you get a job and pay what you
owe."
On November 12, 2008, the trial court entered a written
order directing defendant "to be employed full time" on February
25, 2009.
This appeal followed.
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II. ANALYSIS
On appeal, defendant argues (1) the trial court lacked
subject-matter jurisdiction to find him in contempt for violating
a condition of the December 2005 supervision order because his
supervision had been discharged; (2) the court’s use of improper
contempt procedures violated his due-process rights; and (3)
because of the trial judge’s lack of impartiality, if this court
remands the case, it should be remanded to a different judge.
A. Standard of Review
We will not reverse a court's contempt finding "unless
it is against the manifest weight of the evidence or the record
reflects an abuse of discretion." In re Marriage of Charous, 368
Ill. App. 3d 99, 108, 855 N.E.2d 953, 961 (2006). "'"Abuse of
discretion" means clearly against logic; the question is not
whether the appellate court agrees with the [trial] court, but
whether the [trial] court acted arbitrarily, without employing
conscientious judgment, or whether, in view of all the circum-
stances, the court exceeded the bounds of reason and ignored
recognized principles of law so that substantial prejudice
resulted.'" Long v. Mathew, 336 Ill. App. 3d 595, 600, 783
N.E.2d 1076, 1080 (2003), quoting State Farm Fire & Casualty Co.
v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096
(2000). A finding is against the manifest weight of the evidence
only if (1) the opposite conclusion is clearly evident or (2) the
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trial court's finding is unreasonable, arbitrary, or not based on
the evidence presented. Best v. Best, 223 Ill. 2d 342, 350, 860
N.E.2d 240, 245 (2006).
B. Jurisdiction in the Contempt Proceedings
Defendant first argues the trial court lacked jurisdic-
tion to enter the contempt order. Specifically, defendant
contends that because the petition for rule to show cause related
to an employment condition found in paragraph eight of the
certificate of conditions to the discharged supervision order,
the court lacked subject-matter jurisdiction to enforce the
condition. Paragraph eight of the December 2005 certificate of
conditions required defendant, as a condition of supervision, to
"[w]ork or pursue a course of study or vocational training as
directed by the [p]robation [o]ffice."
The State responds, arguing defendant’s jurisdictional
argument erroneously relies on paragraph eight’s boilerplate
language. The State maintains nothing in the record shows the
trial court ordered defendant "to get a job and be full-time
employed" to satisfy the paragraph-eight language. Instead, the
State argues the court ordered defendant to get a job to pay the
jail-meal fees.
As long as the trial court has jurisdiction over the
defendant and subject matter, the court also has jurisdiction to
enter an order of contempt. People v. Draves, 149 Ill. App. 3d
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657, 659, 500 N.E.2d 1072, 1073 (1986). Generally, a court's
jurisdiction ends with the expiration of probation. People v.
Wilson, 293 Ill. App. 3d 339, 341, 687 N.E.2d 1182, 1184 (1997).
"Where jurisdiction is lacking, any resulting judgment rendered
is void and may be attacked either directly or indirectly at any
time." People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750,
754 (1993).
We initially note that in this case, the trial court
placed defendant on supervision. "’Supervision’ means a disposi-
tion of conditional and revocable release without probationary
supervision, but under such conditions *** as are imposed by the
court, at the successful conclusion of which disposition the
defendant is discharged and a judgment dismissing the charges is
entered." 730 ILCS 5/5-1-21 (West 2006). "’Conditional
[d]ischarge’ means a sentence or disposition of conditional and
revocable release without probationary supervision but under such
conditions as may be imposed by the court." 730 ILCS 5/5-1-4
(West 2006). "’Probation’ means a sentence or disposition of
conditional and revocable release under the supervision of a
probation officer." 730 ILCS 5/5-1-18 (West 2006). We agree
with defendant that for the purposes of establishing jurisdic-
tion, supervision, conditional discharge, and probation are
identical. Each provision provides for a sentence during which
time a defendant is under the jurisdiction of the court, subject
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to conditions imposed by the court, but is not incarcerated
(unless as a condition thereof).
On November 7, 2007, the trial court revoked defen-
dant’s supervision, entered a judgment of conviction, and sen-
tenced defendant to 90 days in jail. The court also ordered
defendant to pay $398.25 in jail-meal fees. The November 8,
2007, docket entry shows the court entered a written order
unsuccessfully discharging defendant’s supervision. At the
conclusion of the November 7, 2007, hearing, the following
colloquy took place:
"MR. LAMKIN [(defense counsel)]: Just to
clarify, supervision is revoked, and once
he’s released from custody, this matter will
be over with?
THE COURT: That is correct. Show, the
remaining balance of any fine and costs are
remitted. Meal fees set at $398.25. Cause
continued to March 14 at 10:00 a.m. for re-
view."
Defendant contends that because the petition for rule
to show cause related to a condition of the terminated order of
supervision--i.e., to find employment, as opposed to paying the
jail-meal fees--the court lacked subject-matter jurisdiction to
enforce the employment condition of the supervision order. We
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disagree.
However, the trial court’s order did not relate to the
original supervision order. Nowhere in the record is there
evidence that the court’s order related to directions from the
probation office or the paragraph-eight language of the supervi-
sion order. Further, as the State correctly points out, the
record does not show the probation office ever directed defendant
to obtain employment.
Here, the jail-meal fees originated from defendant’s
incarceration following his unsuccessful discharge from supervi-
sion. As stated, on November 7, 2007, the trial court revoked
defendant’s supervision and sentenced defendant to 90 days in
jail. As part of its sentence, the court ordered defendant to
pay $398.25 in jail-meal fees. As a result, the jail-meal fees
were ordered subsequent to the discharge of defendant’s supervi-
sion. Further, after defendant had served his 90-day sentence,
the court called the case for hearing on defendant’s ability to
pay the $398.25 jail-meal fees. The March 14, 2008, docket entry
shows the following:
"[The People] appear by SA Jerry Johnson.
[Defendant] appears pro se. Cause called for
[hearing] on ability to pay. [Defendant]
states he is unemployed and on [motion] of
[the People] cause reset for further review
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to April 25, 2008, at 10 a.m. [Defendant]
ordered to return said date with 20
completed/submitted job [applications]."
On May 7, 2008, the State filed its petition for a
finding of indirect civil contempt. The State’s petition alleged
defendant had willfully and contemptuously failed to submit 20
completed-submitted job applications on April 25, 2008. The
petition did not allege defendant willfully and contemptuously
failed to obey the employment conditions of the original supervi-
sion order. In fact, the trial court never referenced the
original supervision order during any of the contempt proceed-
ings.
On August 1, 2008, the trial court ordered defendant to
get a full-time job to ensure he obeyed the court’s November 7,
2007, order to pay the jail-meal fees. At the November 5, 2008,
hearing on the State’s petition, the court stated the following:
"If you’re found in contempt again, you [wil-
l] go back to jail for another [six] months.
And we will do this [for] as long as I am
sitting here or until you get a job and pay
what you owe." (Emphasis added.)
In this case, the trial court’s order to obtain employ-
ment to pay the jail-meal fees was unrelated to the original
supervision order. The record does not support the position that
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the court was attempting to enforce any condition of the December
2005 supervision order. Instead, the court was using its power
of contempt to ensure that defendant would pay the court-ordered
jail-meal fees. See In re Marriage of Betts, 200 Ill. App. 3d
26, 44, 558 N.E.2d 404, 416 (1990) (sanctions for criminal
contempt are appropriate inter alia, to ensure court orders are
obeyed). Accordingly, the trial court had jurisdiction to
consider the State’s petition for indirect criminal contempt.
C. The Trial Court’s Procedure
Defendant next argues the procedure used by the trial
court to find him in indirect criminal contempt was improper.
Specifically, defendant contends the court’s procedure failed to
afford him the necessary due process. Defendant argues (1) he
was entitled to notice; (2) he was entitled to have proof that
his failure to pay the fee was willful; (3) he was not advised of
his right to counsel; (4) the court’s procedure of taking judi-
cial notice of the previous proceedings (a) denied him his right
to cross-examine witnesses and (b) eliminated his right against
self-incrimination; and (5) the court impermissibly shifted the
State’s burden of proof to defendant by asking him to show what
he had done to seek employment.
The State argues defendant was only entitled to minimal
due process. Specifically, the State contends that although the
trial court found defendant in indirect criminal contempt of
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court, the charge against defendant was coercive rather than
punitive and thus more in the nature of an adjudication of
indirect civil contempt.
Defendant replies, arguing that because defendant was
not afforded any kind of purge procedure essential in civil
contempt proceedings, the State’s characterization of defendant’s
action as indirect civil contempt is improper.
1. Indirect Criminal or Civil Contempt of Court
The penalties in a civil contempt case "serve only to
coerce the contemnor to comply with a court order, and they must
cease when the contemnor complies." In re Marriage of Carpel,
232 Ill. App. 3d 806, 823, 597 N.E.2d 847, 859 (1992); Pancotto
v. Mayes, 304 Ill. App. 3d 108, 111, 709 N.E.2d 287, 289 (1999)
("Civil contempt proceedings have two fundamental attributes: (1)
the contemnor must be capable of taking the action sought to be
coerced, and (2) no further contempt sanctions are imposed upon
the contemnor's compliance with the pertinent court order").
Criminal contempt is retrospective in nature and
consists of punishing for doing what has been prohibited or not
doing what has been ordered. Betts, 200 Ill. App. 3d at 46, 558
N.E.2d at 417; see People v. Lindsey, 199 Ill. 2d 460, 468, 771
N.E.2d 399, 406-07 (2002) ("Criminal contempt sanctions are
retrospective in nature and punish the contemnor for past acts
- 18 -
which he cannot undo").
In this case, the trial court did not impose sanctions
to compel a future act. Instead, defendant’s six-month sentence
clearly sought to punish him for his prior conduct, which he
cannot undo--namely his failure to be employed full time on
August 25, 2008. In addition, defendant’s imprisonment was for a
definite period of time. The record does not show defendant
"held the keys to his cell" by being able to purge himself of the
contempt. As the State correctly points out, holding the keys to
one’s jail cell is a fundamental characteristic of indirect civil
contempt. See In re Marriage of Logston, 103 Ill. 2d 266, 289,
469 N.E.2d 167, 177 (1984) ("the civil contemnor must be provided
with the ’keys to his cell’"). However, the court never indi-
cated defendant would be immediately released upon payment of the
jail-meal fees.
Moreover, the State’s petition, the trial court’s
order, and the record show the November 5, 2008, contempt charge
was titled and continuously referenced as indirect criminal
contempt. We additionally note that prior to imposing sentence,
the court asked defendant if he had "[a]nything [he] want[ed] to
say about what the punishment should be here." (Emphasis added.)
As a result, we find the contempt in this case is properly
characterized as criminal in nature.
2. Procedural Requirements
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Before a defendant may be sanctioned for indirect civil
contempt, he or she must be "accorded due process of law with
respect to the contempt charges." Betts, 200 Ill. App. 3d at 52,
558 N.E.2d at 421. "In a civil contempt proceeding, the contem-
nor is only entitled to minimal due process, consisting of notice
and an opportunity to be heard." In re Marriage of Cummings, 222
Ill. App. 3d 943, 948, 584 N.E.2d 900, 903 (1991). "The notice
must, of course, contain an adequate description of the facts on
which the contempt charge is based and inform the alleged contem-
nor of the time and place of an evidentiary hearing on the charge
within a reasonable time in advance of the hearing." Betts, 200
Ill. App. 3d at 53, 558 N.E.2d at 422.
However, a person charged with indirect criminal
contempt is "entitled to constitutional protections that are
afforded to any other criminal defendant." Lindsey, 199 Ill. 2d
at 471, 771 N.E.2d at 408.
"One charged with indirect criminal contempt
is entitled to '"*** know the nature of the
charge against him, to have it definitely and
specifically set forth by citation or rule to
show cause, and *** [have] an opportunity to
answer ***."' [Citation.] Also applicable
to respondent in an indirect criminal con-
tempt proceeding are the privilege against
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self-incrimination, the presumption of inno-
cence, and the right to be proved guilty
beyond a reasonable doubt." Betts, 200 Ill.
App. 3d at 58, 558 N.E.2d at 425.
a. Notice
"[D]ue process requires that before criminal sanctions
may be imposed upon a respondent as a result of indirect criminal
contempt proceedings, notice must be provided to the alleged
contemnor that such sanctions are being sought and might be
imposed." In re Marriage of Alltop, 203 Ill. App. 3d 606, 616,
561 N.E.2d 394, 401 (1990).
"Because a respondent in an indirect
criminal contempt proceeding enjoys the priv-
ilege against self-incrimination, he may not
be called by the petitioner to testify.
Accordingly, a petition initiating indirect
criminal contempt proceedings ought not have
the title 'Petition for Rule To Show Cause,'
the designation commonly (and appropriately)
used for a petition initiating an indirect
civil contempt proceeding; instead, a peti-
tion initiating an indirect criminal contempt
proceeding ought to have the title 'Petition
for Adjudication of Criminal Contempt.' By
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definition, if a respondent has a right not
to testify, he cannot be required to 'show
cause' why he should not be held in indirect
criminal contempt. Instead, the burden is on
the petitioner to prove the charges in the
petition beyond a reasonable doubt. An an-
cillary benefit of using such a title would
be to force court and counsel into a recogni-
tion that such petitions differ from routine
petitions for rules to show cause and require
different procedural steps." (Emphasis in
original.) Betts, 200 Ill. App. 3d at 58-
59, 558 N.E.2d at 425.
Thus, "a pleading entitled 'petition for rule to show cause' is
not sufficient to provide the due process to which an alleged
criminal contemnor is entitled." Alltop, 203 Ill. App. 3d at
616, 561 N.E.2d at 401. Instead, the due-process "requirement
can be met by entitling the initial pleading, 'petition for
adjudication of criminal contempt.'" Alltop, 203 Ill. App. 3d at
616, 561 N.E.2d at 401.
In this case, the State did not file a petition for
adjudication of criminal contempt. Instead, the State filed a
petition for rule to show cause. As a result, the procedure used
failed to provide defendant with proper notice that he faced
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criminal sanctions.
b. Burden of Proof
In an indirect criminal contempt proceeding, "the
burden is on the [State] to prove the charges in the petition
beyond a reasonable doubt." Betts, 200 Ill. App. 3d at 59, 558
N.E.2d at 425. To sustain a finding of indirect criminal con-
tempt the State must prove beyond a reasonable doubt (1) the
existence of a court order, and (2) willful violation of that
order. People v. Totten, 118 Ill. 2d 124, 138, 514 N.E.2d 959,
965 (1987). A defendant in an indirect criminal contempt pro-
ceeding has a right against self-incrimination. People v.
Budzynski, 333 Ill. App. 3d 433, 439, 775 N.E.2d 275, 281 (2002).
Accordingly, a defendant cannot be required to "'show cause' why
he should not be held in contempt," because it "amounts to an
impermissible shifting of the burden of proof." People v.
Ramsell, 266 Ill. App. 3d 297, 301, 640 N.E.2d 975, 978 (1994).
During the criminal contempt hearing, neither the State
nor defendant presented any evidence. At the State’s request,
the trial court took judicial notice of the previous proceedings.
At the hearing, the court sua sponte asked defendant why he did
not have employment and why he should not be held in contempt.
The court also asked defendant if he had any witnesses or evi-
dence he wanted to present in opposition of the State’s petition.
The court stated the following: "I’ll direct the sheriff to
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retrieve whatever documents you want to bring to court to show
why you didn’t have a job when you were ordered to have a job on
that court date." During the hearing the court asked defendant
the following: "Now, you’re telling me you have no evidence to
present, Mr. Covington; is that correct?" Defendant responded,
explaining, "Not as far as working, no. No, sir[,] except that
the year will be up in [two] days. And they said I could go back
to [work,] but I don’t have any evidence to show you that."
Here, the court repeatedly required defendant to show what he had
done to seek employment. We find this procedure impermissibly
shifted the State’s burden of proof.
c. Defendant’s Right to Counsel
A person charged with indirect criminal contempt is
entitled to the right to counsel. Lindsey, 199 Ill. 2d at 471,
771 N.E.2d at 408. However, at no point during the indirect
criminal contempt proceeding was defendant admonished of his
right to counsel. Instead, during the hearing, the trial court’s
references to counsel are limited to the following statements:
"Defendant is pro se. He does not have counsel, and he did not
request the public defender" and "This is on a [p]etition for
[i]ndirect [c]riminal [c]ontempt. Defendant has been, indicated
he’s going to represent himself. Do you still intend to repre-
sent yourself[,] Mr. Covington?" In this case, the court’s
references to the public defender and defendant’s pro se appear-
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ance were insufficient to properly admonish him of his right to
have counsel present during the criminal proceeding.
In this case, we find the trial court erred in entering
a criminal-contempt judgment against defendant without providing
the necessary criminal procedural rights. See Betts, 200 Ill.
App. 3d at 59-60, 558 N.E.2d at 426; Alltop, 203 Ill. App. 3d at
614-15, 561 N.E.2d at 399-400.
D. Defendant’s Impartiality Claim
Defendant last argues this case should be remanded to a
different judge. Specifically, defendant contends the trial
court’s comments at the conclusion of the November 5, 2008,
hearing demonstrate the court had lost its impartiality and
judicial restraint with respect to defendant.
Supreme Court Rule 366(a)(5) allows a reviewing court
to make any order that a case may require. 155 Ill. 2d R.
366(a)(5). This authority includes the power to remand the case
to a different judge. Raintree Homes, Inc. v. Village of Long
Grove, 209 Ill. 2d 248, 263, 807 N.E.2d 439, 447 (2004).
"A trial judge is presumed to be impartial, and the
burden of overcoming this presumption rests on the party making
the charge of prejudice." Eychaner v. Gross, 202 Ill. 2d 228,
280, 779 N.E.2d 1115, 1146 (2002). "'Allegedly erroneous find-
ings and rulings by the trial court are insufficient reasons to
believe that the court has a personal bias for or against a
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litigant.'" Raintree Homes, 209 Ill. 2d at 263, 807 N.E.2d at
448, quoting Eychaner, 202 Ill. 2d at 280, 779 N.E.2d at 1146.
In this case, defendant bases his argument that the
trial court was biased against him on the following comments:
"[T]he court is going to take this ap-
proach. We’re going to have indirect crimi-
nal contempt petitions filed every [four]
months; because if you’re sentenced on every
one of them to [six] months in jail, you’re
going to serve [three] months. I’ll give you
another 30 days to find a job. We’ll come
back. We’ll start the process over. If
you’re found in contempt again, you [will] go
back to jail for another [six] months. And
we will do this [for] as long as I am sitting
here or until you get a job and pay what you
owe."
Because defendant bases his contention solely on the
trial court's comment, defendant failed to show the court was
biased against him.
III. CONCLUSION
For the reasons stated, we vacate the trial court's
order finding defendant in indirect criminal contempt and remand
for further proceedings not inconsistent with this opinion.
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Vacated and remanded with directions.
TURNER and POPE, JJ., concur.
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