Opinion
1-19-0718
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEVIN DESPENZA, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court Of Cook County. No. ACC 180147 The Honorable Stanley L. Hill, Judge Presiding.
JUSTICE WALKER delivered the judgment of the court. Justices Pucinski and Coghlan concurred in the judgment.
ORDER
WALKER, JUSTICE
¶ 1 Held: Where a defendant's conduct raised doubts concerning his capacity to form the intent necessary for contempt, the trial court committed reversible error when it found the defendant in direct criminal contempt of court without providing notice or an opportunity to present a defense.
¶ 2 The trial court found Devin Despenza guilty of criminal contempt of court. Despenza contends that the trial court violated his right to due process. Because Despenza's conduct raised doubts concerning his mental capacity to form the intent necessary for contempt, due process required adequate notice of the charge and an opportunity to present a defense. The trial court violated Despenza's right to due process by failing to provide the required notice. We vacate the contempt order.
¶ 3 I. BACKGROUND
¶ 4 Prosecutors charged Despenza with burglary. At the bail hearing on December 7, 2018, Despenza ranted obscenely and spat. Court personnel removed Despenza from the court before the judge set bail.
¶ 5 Despenza's presence was waived for the following proceeding on the burglary charge, held on December 10, 2018. At that hearing, the trial judge stated, "I'm also finding Defendant *** for conduct in this Court's presence on December 7th, 2018 -- in direct contempt."
¶ 6 Defense counsel responded, "I'm not waiving my client's appearance. If there's a separate contempt proceeding going on, I need to have notice of that." The judge stated he did not need to provide notice because "it's direct contempt." He sentenced Despenza to six months in jail and entered a written order stating:
"Defendant was present on December 7, 2018, and it was clear to the Court that he has some major, major, major mental problems. In fact, he used profanity multiple times directed at the Court and the deputies and spat on the court reporter. He spat at the Court. A deputy was injured as Defendant was being removed from the courtroom."
¶ 7 The judge repeated his finding of contempt and ordered a psychiatric examination. The psychiatrist found Despenza fit to stand trial but expressed no opinion concerning Despenza's sanity. The judge denied Despenza's motion for reconsideration of the contempt order. Despenza now appeals.
¶ 8 II. ANALYSIS
¶ 9 On appeal, Despenza contends that the trial judge violated his right to due process by entering a contempt finding without notice, without Despenza present in court, and without permitting Despenza to present a defense. The exercise of contempt power "is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions." People v. Simac, 161 Ill.2d 297, 305-06 (1994). A reviewing court must determine whether (1) there was sufficient evidence to support the finding of contempt, and (2) "whether the judge considered facts outside of the judge's personal knowledge." Id. at 306. We review an order of contempt for abuse of discretion. People v. Geiger, 2012 IL 113181, ¶ 27. Our supreme court has set out the applicable principles:
"[A] direct criminal contempt is one which takes place in the very presence of the judge, making all the elements of the offense matters within his own personal observation and knowledge, and *** such contempt may be punished without any formality of pleading, notice or answer. [Citations.] *** [A]n indirect contempt is one which in whole or in essential part occurred out of the presence of the court and which is therefore dependent for its proof upon evidence of some kind. In such case, there must be a notice, citation, or rule to show cause served upon the alleged contemnor. [Citation.] Without looking to the question of whether or not plaintiff in error committed wrongful acts amounting to contempt of court, we must first decide whether he was denied due process of law." People v. Pomeroy, 405 Ill. 175, 179-80 (1950).
¶ 10 Here, the judge found that Despenza had "major, major, major mental problems." "[S]ince contempt requires intent, where a question as to the defendant's mental capacity to form that intent is raised by the facts, all of the elements of the crime are no longer within the personal knowledge of the judge." People v. Sheahan, 150 Ill.App.3d 572, 576 (1986). Contempt may not be punished summarily in such a situation; rather, the court must first afford the defendant due process rights including a hearing and a right to present a defense. People v. Willson, 302 Ill.App.3d 1004, 1006 (1999).
¶ 11 The State argues that the lack of notice made no difference here, because a psychiatrist later found Despenza fit to stand trial. The fitness finding had little relation to Despenza's ability to form the intent required for contempt. "Fitness speaks only to a person's ability to function within the context of trial. [Citation.] It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his mind may be otherwise unsound." People v. Murphy, 72 Ill.2d 421, 432-33 (1978) (quotation marks omitted). Moreover, the complete lack of notice renders the State's harmless error analysis inapplicable. "It is unnecessary to *** engage in a harmless-error analysis when defendant's due process right to notice has been completely violated." People v. Mancebo, 27 Cal.4th 735, 749, 41 P.3d 556, 565 (2002); see also, In re Laura H., 404 Ill.App.3d 286, 290 (2010) (in the context of proceedings for involuntary psychiatric treatment, "the right to written notification is not subject to a harmless-error analysis ***[;] compliance with the procedural safeguards *** is necessary to protect the liberty interests involved.")
¶ 12 Due to the lack of notice before the finding of indirect criminal contempt, we must reverse the conviction. Despenza asks us not to remand for retrial because he already served his sentence. The State has not responded to this part of Despenza's argument. The court in People v. Campbel l, 224 Ill.2d 80, 87-88 (2006) held, "defendant has already discharged his sentence, and a new trial therefore would be neither equitable nor productive." We find that a new trial here, too would be neither equitable nor productive. See also People v. O'Leary, 376 Ill.App.3d 39, 41 (2007).
¶ 13 CONCLUSION
¶ 14 We vacate the contempt order.
¶ 15 Contempt order vacated.