People v. Geiger , 978 N.E.2d 1061 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Geiger, 2012 IL 113181Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TERRELL
Court: D. GEIGER, Appellant.
Docket No. 113181
Filed October 18, 2012
Held Where a witness conceded that he had been guilty of direct criminal
(Note: This syllabus contempt in refusing to testify based on his honest but mistaken belief
constitutes no part of that he had a fifth amendment privilege, a 20-year term was manifestly
the opinion of the court disproportionate and unreasonably excessive—cause remanded to give
but has been prepared the circuit court an opportunity to impose a more reasonable sentence.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Kankakee County, the Hon.
Clark E. Erickson, Judge, presiding
Judgment Appellate court judgment reversed.
Cause remanded for resentencing.
Counsel on Michael J. Pelletier, State Appellate Defender, Peter A. Carusona and
Appeal Thomas A. Lilien, Deputy Defenders, and Fletcher P. Hamill, Assistant
Appellate Defender, of the Office of the State Appellate Defender, of
Ottawa, for appellant.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Solicitor General, and Michael M. Glick and Karl R. Triebel, Assistant
Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, Karmeier, and Theis concurred in the
judgment and opinion.
Justice Freeman specially concurred, with opinion.
Chief Justice Kilbride dissented, with opinion.
OPINION
¶1 After a bench trial, defendant, Terrell Geiger (Geiger), was found guilty of direct
criminal contempt for refusing to testify as a State’s witness at the murder trial of Javar
Hollins. The court imposed a sentence of 20 years’ imprisonment. Defendant appealed his
sentence to the appellate court, which affirmed with one justice dissenting. 2011 IL App (3d)
090688.
¶2 We granted defendant’s petition for leave to appeal in this court (Ill. S. Ct. R. 315 (eff.
Feb. 26, 2010)) and now reverse the sentence imposed. We find that the 20-year sentence
imposed is grossly disproportionate to the nature of the offense and must be reduced.
¶3 BACKGROUND
¶4 In November 2008, Javar Hollins was retried1 for the 1999 murders of Lazerick (L.Z.)
Martin and Michael Cox. Although defendant had not testified at Hollins’ first trial, he had
testified for the State at the trial of Hollins’ codefendant, Joseph Mason. When defendant
testified at Mason’s trial, he was 15 years old and was a member of the same gang as Hollins
and Mason. At Mason’s trial, defendant testified that on March 18, 1999, he was at the Avis
Motel in Kankakee, where he overheard Hollins, Mason and Dana Dixon planning to rob
L.Z. Martin. Defendant also testified that the three men left the motel and, when they
returned a short time later, Hollins bragged about shooting Martin in the head. Defendant
1
Hollins’ previous conviction was overturned on appeal due to a jury selection issue. See
People v. Hollins, 366 Ill. App. 3d 533 (2006).
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admitted that, after Hollins and the others returned, he accompanied Hollins and another
person (Taylor) to recover the weapons that had been stashed after the robbery, but left
before the others disposed of the guns.
¶5 On Friday, November 21, 2008, at Hollins’ retrial, defendant was brought into court
outside the presence of the jury. The prosecutor informed the court that, although he had
previously been cooperative, defendant now indicated that he would not testify. The court
questioned defendant, who told the court he was refusing to testify because he believed it
was his fifth amendment right to do so.
¶6 The court advised defendant that, because he had given a statement to the police and had
previously testified in the Mason trial, he had no reasonable basis for invoking the fifth
amendment privilege at that time. The court further advised him that if he persisted in his
refusal to testify and was found in contempt without a trial, he could be sentenced to up to
180 days in jail. However, if the prosecutor filed a formal direct criminal contempt petition
against him and he was found in contempt after a trial, he could face “a period of years
imprisonment to run consecutive, not concurrent, consecutive to the sentence you are
currently serving.”
¶7 At the court’s direction, the jury was brought back into the courtroom and the prosecutor
called defendant to the stand. The prosecutor questioned defendant, who confirmed that on
March 18, 1999, he had been present at the Avis Motel. However, defendant refused to
answer any further questions by the prosecutor, asserting his fifth amendment privilege
against self-incrimination. A recess was taken and the jury was dismissed for lunch.
¶8 After the lunch recess, the prosecutor filed with the court a criminal contempt petition
against defendant, as the court had discussed. Hoping that defendant could be persuaded to
testify before the Hollins trial ended, the prosecutor asked the court to appoint Public
Defender Gus Regas, who had come to court to represent defendant and advise him
regarding his decision on whether to testify. As further incentive, the prosecutor informed
the court that he had been authorized to offer defendant use immunity in exchange for his
truthful testimony in the Hollins case.
¶9 Defendant was brought back into the courtroom and the court advised him that Regas,
who was present in the courtroom, had been appointed to represent him. The court also
advised defendant that the prosecutor was offering him use immunity in exchange for his
truthful testimony in the Hollins trial. Finally, the court read the petition charging defendant
with direct criminal contempt, in which the prosecutor asked for a sentence of 20 years’
imprisonment if defendant were found in contempt.
¶ 10 After these admonishments, the court asked defendant if he wished to enter a plea on the
contempt petition at that time. The public defender asked the court for a brief recess to allow
him time to confer with defendant. The court granted the request. About an hour later, court
came back into session and, without the jury present, defendant was called to the stand.
However, the court did not ask defendant if, after speaking with his attorney, he still refused
to testify. In fact, defendant was asked no questions at all. Instead, the court noted on the
record that defendant’s counsel had left the building and then ordered the contempt case
against defendant to be held over to Tuesday, November 25, 2008, for a plea hearing.
¶ 11 On Monday, November 24, 2008, Hollins’ trial was completed. Hollins was found guilty
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of murder and later sentenced to life imprisonment. His conviction and sentence were upheld
on appeal. People v. Hollins, No. 3-09-0126 (2011) (unpublished order under Supreme Court
Rule 23).
¶ 12 On November 25, 2008, defendant entered a plea of not guilty on the contempt petition.
He denied the allegations, asserting that he had a valid fifth amendment right to refuse to
testify, and moved for the petition to be dismissed. The matter was continued.
¶ 13 The motion to dismiss the petition was denied by the court on March 5, 2009, and the
case proceeded to a bench trial on June 1, 2009. At trial, defendant’s counsel argued that
defendant had a fifth amendment right to refuse to testify and that the trial court had erred
when it ordered defendant to testify without holding a full hearing to determine whether
defendant had good cause to believe that his testimony could be used against him. The court
rejected defense counsel’s argument, finding once again that defendant did not have the right
to refuse to testify. After reviewing the transcript of defendant’s refusal to testify at Hollins’
trial on November 21, 2008, as well as the court’s own recollection of the events, the court
found defendant guilty of direct criminal contempt for refusing to testify.
¶ 14 At the sentencing hearing on July 20, 2009, defense counsel first argued a motion for
new trial. Counsel informed the court that, while it was true that defendant had previously
testified in the Mason trial, that fact was not dispositive of his right to invoke the fifth
amendment. Counsel pointed out that defendant had been a juvenile when he testified at the
Mason trial. According to counsel, defendant’s refusal to testify at Hollins’ retrial in 2008
was based on the fact that he was an adult and believed that he could face more serious
consequences if he were to testify. The court denied the motion for new trial and sentenced
defendant to 20 years’ imprisonment with the sentence to run consecutively to a previously
imposed six-year sentence on an unrelated matter, which defendant was already serving.2
¶ 15 Defendant appealed. While conceding that he had committed direct criminal contempt,
defendant argued that his sentence was excessive and grossly disproportionate to the nature
of the offense. The appellate court affirmed, with one justice dissenting. 2011 IL App (3d)
090688.
¶ 16 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 17 ANALYSIS
¶ 18 As in the appellate court, defendant does not challenge his conviction for direct criminal
contempt. He concedes that he was mistaken in his belief that he had a fifth amendment right
to refuse to testify. The only issue before us is whether the trial court abused its discretion
when it imposed a sentence of 20 years’ imprisonment for defendant’s direct criminal
contempt.
¶ 19 The State urges us to find, as the appellate court did, that the trial court did not abuse its
discretion by imposing the 20-year sentence. The State argues that a substantial sentence is
2
According to a document submitted to this court by defendant’s attorney dated May 18,
2012, defendant has completed the sentence imposed on the prior, unrelated offense and has now
served more than two years against his contempt sentence.
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warranted here because defendant’s disobedience offended the dignity of the court, as well
as threatened the State’s ability to hold Hollins accountable for a double murder. Further, the
State asserts that a severe punishment is necessary because of defendant’s criminal history
and for general deterrence purposes—it serves as a warning to others. Thus, according to the
State, the 20-year sentence is not greatly at variance with the spirit and purpose of the law
and, therefore, the trial court did not abuse its discretion.
¶ 20 Defendant, however, contends that the 20-year sentence is grossly disproportionate to
the nature of the offense and excessive, constituting an abuse of discretion. Although
defendant refused to testify in a trial involving a double murder, he points out that, in People
v. Carradine, 52 Ill. 2d 231, 234 (1972), this court affirmed a six-month contempt sentence
for a defendant’s refusal to testify at a murder trial.
¶ 21 In further support, defendant cites, United States v. Gracia, 755 F.2d 984 (2d Cir. 1985),
United States v. Gomez, 553 F.2d 958 (5th Cir. 1977), and United States v. Leyva, 513 F.2d
774 (5th Cir. 1975). In each of these cases the defendant refused to testify at grand jury
proceedings regarding matters involving attempted murder and other serious offenses. In
each of these cases, the sentence imposed by the trial court was found to be excessive.
¶ 22 Moreover, in Gracia, Gomez, and Leyva, the courts, when determining a fair sentence,
applied the principle of proportionality. In Gracia the court noted that had the defendant not
refused to testify and, instead, committed the offense of perjury by testifying falsely, the
maximum nonextended-term sentence to which he would have been exposed would be five
years. The court explained:
“We see nothing in [the defendant’s] conduct before the grand jury that is worse than
perjury, and are therefore unconvinced that a ‘just deserts’ rationale for punishing
this defendant justifies a penalty that is substantially harsher than what he could have
received for a perjury conviction. We also see no reason based on general deterrence
to punish this defendant’s silence more than perjury; indeed, since a perjurer may
consciously mislead a court or grand jury, it would be anomalous to encourage those
who would otherwise remain silent to choose, instead, to lie.” Gracia, 755 F.2d at
990.
In Gomez and Leyva, the courts noted that if the defendants’ conduct had been prosecuted
as obstruction of justice, they would have been subject to sentences of no more than five
years. Accordingly, in each of the cases cited, the reviewing court reduced the sentence
imposed. See Gracia, 755 F.2d at 990 (nine-year contempt sentence reduced to four years);
Gomez, 553 F.2d at 959 (15-year sentence reduced to 4 years); Leyva, 513 F.2d at 780 (35-
year criminal contempt sentence reduced to 2 years).
¶ 23 In the case at bar, defendant contends that we should find his sentence excessive and that
it must be reduced to a more just term, as in the cases above. We agree.
¶ 24 It has long been recognized that a court, in order to maintain control over its courtroom,
has the inherent power to punish for contempt. See People v. Simac, 161 Ill. 2d 297, 305
(1994) (all courts have the inherent power to punish contempt; this power is essential to the
maintenance of authority and the administration of judicial powers); 720 ILCS 5/1-3 (West
2008). Moreover, because the power to punish for contempt is inherent and does not depend
on a constitutional or legislative grant, the legislature may not restrict its use. Murneigh v.
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Gainer, 177 Ill. 2d 287, 303 (1997); People v. Warren, 173 Ill. 2d 348, 370 (1996); In re
G.B., 88 Ill. 2d 36, 41 (1981); In re Baker, 71 Ill. 2d 480, 484 (1978). Accordingly, contempt
has no sentencing classification or sentencing range set by the legislature.
¶ 25 When imposing a sentence for contempt, courts should keep in mind that “[t]he contempt
power is an extraordinary one that should be used sparingly and with the utmost sensitivity.”
See In re G.B., 88 Ill. 2d at 52-53 (Simon, J., dissenting) (citing Bloom v. Illinois, 391 U.S.
194 (1968)); City of Chicago v. Chicago Fire Fighters Union, Local No. 2, 99 Ill. App. 3d
583, 590 (1981) (the power to punish for contempt is discretionary, but should be exercised
sparingly and only when necessary to prevent actual, direct obstruction of justice).
¶ 26 In People v. Ernest, 141 Ill. 2d 412, 421 (1990), this court stated:
“A court has the inherent power to punish, as contempt, conduct that is calculated
to impede, embarrass, or obstruct the court in its administration of justice or derogate
from the court’s authority or dignity, or to bring the administration of the law into
disrepute. (In re Estate of Melody (1969), 42 Ill. 2d 451, 452.) A finding of criminal
contempt is punitive in nature and is intended to vindicate the dignity and authority
of the court. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d
407, 409.) Nonetheless, ‘its exercise is a delicate one and care is needed to avoid
arbitrary or oppressive conclusions.’ Cooke v. United States (1925), 267 U.S. 517,
539, 69 L. Ed. 767, 775, 45 S. Ct. 390, 396.”
See also People v. Simac, 161 Ill. 2d 297, 306 (1994) (“the exercise of such [contempt]
power is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions”
(internal quotation marks omitted)); Id. at 315 (Nickels, J., dissenting, joined by Harrison
and McMorrow, JJ.) (the contempt power, while “universally recognized as essential to the
administration of justice,” is “susceptible to abuse and must be closely examined”).
¶ 27 A sentence imposed for direct criminal contempt, like any other sentence, is subject to
review for an abuse of discretion. See People v. Alexander, 239 Ill. 2d 205 (2010); People
v. Hauschild, 226 Ill. 2d 63 (2007) (a reviewing court may not alter a defendant’s sentence
absent an abuse of discretion by the trial court); In re Estate of Wernick, 176 Ill. App. 3d
153, 156 (1988) (the power to punish for contempt rests within the sound discretion of the
trial court, and a determination of contempt will not be overturned absent a clear abuse of
discretion). A sentence will be deemed an abuse of discretion where the sentence is “greatly
at variance with the spirit and purpose of the law, or manifestly disproportionate to the
nature of the offense.” (Internal quotation marks omitted.) People v. Alexander, 239 Ill. 2d
at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)). In contempt cases, however,
because there are no sentencing guidelines, appellate courts have a “special responsibility
for determining that the [contempt] power is not abused, to be exercised if necessary by
revising themselves the sentences imposed.” Green v. United States, 356 U.S. 165, 188
(1958). See also United States v. Bukowski, 435 F.2d 1094, 1110 (7th Cir. 1970)
(“Punishment of criminal contempt should reflect the ‘least possible power adequate to the
end proposed.’ [Citation.] Appellate courts bear ‘special responsibility’ for preventing abuse
of the contempt power, and this Court has the power in appropriate circumstances to revise
sentences inflicted upon contemnors whether trial has been by judge or jury.”).
¶ 28 In United States v. United Mine Workers of America, 330 U.S. 258, 302-03 (1947), the
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United States Supreme Court listed certain factors that trial courts may consider when
fashioning an appropriate sentence for criminal contempt: (1) the extent of the willful and
deliberate defiance of the court’s order, (2) the seriousness of the consequences of the
contumacious 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.
¶ 29 Applying the above principles to the case at bar, we find that the 20-year sentence
imposed in this case is manifestly disproportionate to the nature of the offense and, therefore,
unreasonably excessive. Although defendant willfully and deliberately refused to testify, his
refusal was based on his mistaken belief that he had a fifth amendment right to do so. We
note, too, that some evidence was presented at defendant’s contempt trial that other gang
members who had testified were threatened. Thus, defendant’s refusal to testify might have
been driven, in part, by the fact that, as a gang member, he feared retaliation.
¶ 30 It should also be recognized that defendant’s refusal to testify did not seriously hamper
the State’s ability to prosecute Hollins. Defendant’s testimony would have been cumulative
to the testimony provided by other witnesses and Hollins was convicted without the
additional evidence that defendant might have provided.
¶ 31 We realize that defendant continued to refuse to testify in a double-murder case after he
was informed by the court that he had no right to refuse and was offered use immunity. In
doing so, defendant exhibited a disregard for the authority of the court. However,
defendant’s contemptuous conduct was nonviolent and he was not flagrantly disrespectful
to the trial judge. See People v. Ziporyn, 106 Ill. 2d 419, 422 (1985) (because contemnor’s
behavior was not “flagrantly contemptuous,” a one-year sentence of probation was
“unnecessary and excessive” and reduced to a $250 fine). Defendant simply refused to
testify because he honestly believed he had a fifth amendment right to do so. Moreover,
defendant’s belief was not unreasonable, given the fact that his own attorney maintained
throughout the contempt proceedings that defendant had a valid fifth amendment right to
refuse to testify.
¶ 32 Under the circumstances presented in this case, we find that a less onerous sentence is
in order. While it would not be inappropriate for this court to impose a new sentence, we
choose to remand to the circuit court to afford it the opportunity to enter a more reasonable
sentence.
¶ 33 Appellate court judgment reversed.
¶ 34 Cause remanded for resentencing.
¶ 35 JUSTICE FREEMAN, specially concurring:
¶ 36 I agree that defendant’s 20-year sentence for direct criminal contempt is manifestly
disproportionate to the nature of the offense, and that a less onerous sentence is in order.
However, I disagree with the majority’s decision to remand to the circuit court for that court
to enter “a more reasonable sentence.” Supra ¶ 32. This only guarantees another round of
appeals; therefore, in the interest of preserving judicial resources, I believe the matter should
be resolved here with this court imposing the new sentence. I would remand to the circuit
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court with instructions that a sentence of time served be entered.
¶ 37 CHIEF JUSTICE KILBRIDE, dissenting:
¶ 38 I disagree with the majority’s decision reversing defendant’s sentence for direct criminal
contempt. In my view, the trial judge did not abuse his discretion in imposing the sentence
in this case. Accordingly, I respectfully dissent.
¶ 39 As the majority explains, the trial court’s sentence is reviewed for an abuse of discretion.
A reviewing court gives great deference to the trial court’s sentence because the trial judge
has observed the defendant and the proceedings and is in a far better position to consider the
defendant’s credibility, demeanor, moral character, mentality, environment, habits, and age.
People v. Snyder, 2011 IL 111382, ¶ 36; People v. Streit, 142 Ill. 2d 13, 18-19 (1991). A
reviewing court should proceed with great caution and care in considering the propriety of
a sentence. Streit, 142 Ill. 2d at 19. The reviewing court must not substitute its judgment for
that of the sentencing judge merely because it would have weighed the factors differently.
Streit, 142 Ill. 2d at 19.
¶ 40 In imposing an appropriate sentence for criminal contempt, the trial court may consider:
(1) the extent of the willful and deliberate defiance of the court’s order; (2) the seriousness
of the consequences of the contempt; (3) the public interest in effectively terminating the
defendant’s defiance; and (4) the importance of deterring the contemptuous behavior in the
future. United States v. United Mine Workers of America, 330 U.S. 258, 303 (1947). The
nature of those sentencing factors requires placing great reliance upon the discretion of the
trial judge. United Mine Workers, 330 U.S. at 303.
¶ 41 Here, the appellate court upheld the trial court’s sentence. The appellate court observed
that defendant’s contemptuous conduct severely limited the evidence of Hollins’
involvement in the planning and execution of the crimes and, therefore, hindered the
administration of justice for two murders. The appellate court explained that giving
defendant a light sentence would encourage future witnesses to refuse testifying in serious
criminal cases. The trial judge specifically observed that defendant did not appear to have
even an “inkling of concern” that he would be prosecuted for ignoring the court’s order. The
trial judge stated, “I saw pure scorn for the judicial system in the defendant’s face.”
(Emphasis added.) The trial judge also commented on defendant’s criminal history,
including a Class 1 felony conviction for delivering a controlled substance near a park or
school, a Class X felony conviction for manufacturing or delivering cocaine, two felony
convictions from Wisconsin for manufacturing or delivering controlled substances, and a
Class A misdemeanor conviction for obstructing a police officer. While defendant’s
contempt was not violent, the appellate court recognized it was nonetheless calculated to
hinder or obstruct the administration of justice in a double murder trial. Given the totality
of the circumstances, the appellate court concluded that the trial judge did not abuse his
discretion in sentencing defendant.
¶ 42 I agree with the appellate court’s analysis. The factors listed in United Mine Workers
favor imposition of a substantial sentence. Defendant persisted in his refusal to testify at the
double-murder trial after being given several opportunities to comply with the trial court’s
order. His defiance of the trial court’s order was certainly willful and deliberate. The
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potential consequences of the contempt could not be more serious given that it occurred
during a double murder trial. The refusal to testify threatened to obstruct or impede the
administration of justice for two violent crimes.
¶ 43 Importantly, the public interest in terminating the defiance and future deterrence both
favor a substantial sentence. The trial court cannot perform its function of administering
justice if witnesses to serious crimes are allowed simply to refuse to testify without facing
significant punishment. The sentence here serves to deter witnesses to future serious crimes
from willfully defying the authority of the court and, thereby, obstructing the administration
of justice. Public safety is put at great risk if trial courts are not given adequate authority to
deter the contemptuous refusal to testify at issue in this case.
¶ 44 In concluding that the trial court abused its discretion, the majority states defendant’s
refusal to testify may have been driven, in part, by a fear of retaliation. The majority also
asserts defendant’s conduct was not flagrantly disrespectful or contemptuous, but that he
“simply refused to testify because he honestly believed he had a fifth amendment right to do
so.”
¶ 45 The majority’s statements about the defendant’s motivation for refusing to testify
disregard the trial judge’s specific findings on defendant’s open contempt for the judicial
system. Contrary to the majority’s statements, the trial judge found defendant did not have
an “inkling of concern” that he would be prosecuted for ignoring the order to testify. The
trial judge “saw pure scorn for the judicial system in the defendant’s face.” The majority’s
statement that defendant was not flagrantly disrespectful is contradicted by the trial judge’s
finding that he exhibited “pure scorn” for the court system. The trial judge emphasized that
defendant was defiant, expressly asserting, “I hope I’ve made the record abundantly clear
that all that I saw in you was contempt on the day that you were called to the witness stand.”
The trial judge concluded, “if there’s a case that’s appropriate for 20 years for contempt, this
is the case.”
¶ 46 The trial judge’s findings are directly relevant to the factors from United Mine Workers
for imposing a sentence for direct criminal contempt. Those findings are entitled to great
deference given the trial judge’s ability to observe the defendant and the proceedings in this
case. The trial judge was in a far better position to evaluate the defendant’s credibility,
demeanor, moral character, mentality, environment, habits, and age. Snyder, 2011 IL
111382, ¶ 36; Streit, 142 Ill. 2d at 18-19. Notably, the majority does not recite any part of
the trial judge’s reasoning for imposing the sentence. The majority simply disregards the trial
judge’s reasoning and substitutes its own judgment for that of the trial court on the factors
critical to imposing the sentence. This court, however, must not substitute its judgment for
that of the trial judge merely because it would have weighed the factors differently. Streit,
142 Ill. 2d at 19.
¶ 47 In sum, the trial judge’s sentencing decision is entitled to great deference. I believe the
trial judge properly weighed the factors relevant to imposing the sentence for direct criminal
contempt along with defendant’s extensive criminal history. Based on the facts of this case,
I agree with the appellate court that the trial judge did not abuse his discretion in imposing
the sentence. Accordingly, I respectfully dissent.
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