{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant",
  "name_abbreviation": "People v. Martin-Trigona",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant."
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      {
        "text": "Mr. PRESIDING JUSTICE TRAPP\ndelivered the opinion of the court:\nDefendant appeals from the order of the trial court finding him in criminal contempt and imposing a sentence of 4 months\u2019 imprisonment and a fine of $500.\nThe events found to constitute contempt occurred May 4, 1973, and June 25, 1973. All of the evidence of defendant\u2019s conduct is disclosed in the several reports of proceedings of matters occurring in open court. The trial court took judicial notice of the records without objection by defendant.\nThe court found that the following several acts were \u201ccalculated to and did embarrass, obstruct and hinder the Court in the prompt and efficient administration of justice, and was [were] calculated to and did bring the administration of justice into disrepute;\u201d in the following particulars: (1) On May 4, 1973, defendant committed the offense of contempt in that he said in open court, \u201cYour Honor, I believe that you have, in one fell swoop, repealed both the law that applies in this state and the common law\u201d; (2) that on May 4, 1973, the defendant committed the offense of contempt in that he stated in open court, \u201cThank you, Your Honor. If you wish to hold yourself in contempt of Federal Court * * (3) that on May 4,1973, defendant committed the offense of contempt in that he stated in open court, \u201cThe Judge is trying to intimidate me,\u201d and again stated, \"* 9 * on so hearing, the Judge again threatened and intimidated me by saying that he would act in contempt of Court, * \" \u201d and proceed with the case, despite the plain mandate of Federal law\u201d; (4) that on May 4,1973, the defendant committed the offense of contempt in that he stated in open court and to the court, \u201cI hope they are paying you well for this fixed case\u201d; (5) that on May 4,1973, the defendant committed the offense of contempt in that he stated to the court reporter, an officer of the court, in open court, \u201cCan I get a transcript of this hearing before it gets doctored?\u201d and (6) that on June 25, 1973, the defendant committed the offense of contempt in that he failed, after due notice, to appear for an allotted hearing on the rule to show cause why he should not be held in contempt.\nThe underlying cause originated when defendant was charged with assault and disorderly conduct in 1972. The matter has proceeded at bizarre length, essentially through defendant\u2019s exploitation of petitions to remove the several aspects of the case to the Federal court. Such successive petitions are shown to be without merit in the fact that each was ultimately dismissed and the cause remanded to the circuit court. The record shows numerous judges serving upon successive assignments by the supreme court or upon recusal of certain judges.\nThe contemptuous conduct was charged as occurring on May 4 at a pretrial hearing on defendant\u2019s motions. On May 8, defendant filed a petition for removal to the Federal court. That petition was dismissed and the cause remanded on June 15, 1973. Defendant failed to appear at a hearing on June 25. The then assigned judge found that defendant had actual notice of that hearing. On July 23, 1973, defendant again filed a petition to remove the cause to the Federal District Court. A hearing and a finding of contempt on September 24, 1975, was reversed when the trial judge was not advised of that pending removal petition. (People v. Martin-Trigona (1976), 36 Ill. App. 3d 482, 344 N.E.2d 225.) The removal petition was dismissed by the Federal District Court and remanded to the circuit court on March 1,1977.\nDefendant contends that the pleadings upon which defendant was tried were not verified and hence void. He cites People v. Harrison (1949), 403 Ill. 320, 328, 86 N.E.2d 208, 212, for the rule that it \u201cwas incumbent in proceedings for indirect contempt to have the information, petition or affidavit positively verified * # That statement was directed to the fact extrinsic evidence was required to establish perjury.\nHere, the original petition contained, as exhibits, copies of the records in the trial court and citations to the report of proceedings certified by the court reporter. The amended petition alleges conduct reflected in the reports of proceedings which were introduced into evidence at the hearing upon contempt charges.\nThe record discloses that this issue was not raised in defendant\u2019s motion to dismiss the amended petition and was not preserved in defendant\u2019s post-trial motions. Upon such circumstances the issue argued may be treated as waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) In Debowski v. Shred Pax Corp. (1977), 45 Ill. App. 3d 891, 359 N.E.2d 204, it was argued that the trial court was without jurisdiction because of a want of proper verification. The reviewing court held that where defendant had notice and an opportunity to answer and be heard, the verification was not essential. Defendant\u2019s claim that the unverified charges were void is without merit.\nDefendant contends that no rule to show cause was entered and that defendant was tried without being formally charged. Defendant appeared by counsel and participated in the hearings without raising the issue in the trial court. Again, the issue was not preserved in defendant\u2019s post-trial motions. The issue may be treated as waived. Pickett.\nDefendant argues that the trial court erred in refusing to dismiss the charges for the failure to prosecute within one year and six months. It is asserted that contempt is a misdemeanor and that the statute of limitations in section 3 \u2014 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 \u2014 5) provides the limitation of one year and six months for misdemeanor. The defendant\u2019s argued conclusion is erroneous under the authorities.\nA court has the power to punish for contempt without statutory authority. (People v. Seymour (1916), 272 Ill. 295, 111 N.E. 1008; People v. Siegal (1948), 400 Ill. 208, 79 N.E.2d 616.) The power to punish for contempt is inherent in the court as an essential incident to the administration of judicial power. People v. Sunnen (1978), 56 Ill. App. 3d 727, 372 N.E.2d 448.\nDefendant cites no statutory limitation directed to the inherent power of a court to punish for contempt. Section 1 \u2014 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 \u2014 3) provides that no conduct \u201cconstitutes an offense\u201d unless so described in that Code. Section 3 \u2014 5 (Ill. Rev. Stat. 1979, ch. 38, par. 3 \u2014 5) applies only as to an \u201coffense\u201d designated in the Code.\n12 Ill. L. & Prac. Contempt \u00a767 (1955) states that the court can proceed for contempt at any time while it retains jurisdiction of the matter. The time for proceedings in contempt has been discussed in terms of laches. (People ex rel. Rusch v. Wojcik (1937), 290 Ill. App. 597, 7 N.E.2d 922 (abstract).) In People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 412, 173 N.E.2d 417, 420, the court stated:\n\u201cThe statute [of limitations] is not a bar, and the circumstances in each case should be carefully examined to determine when lapse of time would make it unjust or unfair to compel a respondent to answer contempt charges.\u201d\n(See also People v. Levinson (1979), 75 Ill. App. 3d 429, 394 N.E.2d 509.) Upon consideration of defendant\u2019s practice of filing successive petitions for removal to the Federal District Court upon the same matters, and the fact that the last such petition filed on July 23,1973, pending a hearing on contempt was not remanded until March 1, 1977, we will not say that it was unfair or unjust to require defendant to answer the amended contempt charges filed without objection by defendant\u2019s counsel on Sepember 20,1977.\nDefendant argues that the State\u2019s Attorney was the only person authorized to prosecute the contempt proceedings, that there was no showing of the existence of any of the statutory grounds for the appointment of a special prosecutor as provided in section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys\u201d (Ill. Rev. Stat. 1979, ch. 14, par. 6), and that the trial court committed reversible error in denying defendant\u2019s motion to vacate the appointment. We deem the contention to be without merit. In People v. Goss (1957), 10 Ill. 2d 533, 546, 141 N.E.2d 385, 391, the court said:\n\u201cThe People are not concerned in contempt actions in the sense that such actions are in violation of the peace and dignity of society. As was said in People v. Jilovsky, 334 Ill. 536, \u2018Contempts are not crimes within the meaning of the statute defining misdemeanors.\u2019 \u201d\nIn People v. Marcisz (1975), 32 Ill. App. 3d 467, 473, 334 N.E.2d 737, 741, the court pointed out:\n\u201cIndirect criminal contempt proceedings may be prosecuted by the People, by an amicus curiae or, as in this case, a private litigant.\u201d\n(See also 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) In the light of such authority, we hold that the prosecution of the contempt charges is not the sole or necessary function of the State\u2019s Attorney and the nomenclature used in the order does not control a performance of the function of presenting the charge.\nWhile we conclude that the presentation of a contempt charge is not a function of the State\u2019s Attorney as such, but as an amicus curiae, the record discloses that on July 21, 1977, the then State\u2019s Attorney filed a motion reciting that defendant had participated in that State\u2019s Attorney\u2019s campaign for election to the office and that such fact \u201ccould give rise to an appearance of impropriety.\u201d\nIn People v. Howarth (1953), 415 Ill. 499, 114 N.E.2d 785, the supreme court stated that it saw no reason to disagree with the conclusion reached in People ex rel. Hoyne v. Northup (1914), 184 Ill. App. 638, that a trial court might appoint a special prosecutor on its own motion. While the docket entry does not explicitly show action on the State\u2019s Attorney\u2019s motion by the court, the record demonstrates a basis for the exercise of the court\u2019s discretion.\nDefendant contends that he was entitled to a jury trial. On December 8, 1977, prior to the hearing, the trial judge advised defendant that the penalty would not be more than 180 days, a fine not to exceed $500, or both. Upon the authority of Bloom v. Illinois (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477, and County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720, we hold that there was no denial of equal protection under the Constitution of the United States or of the State of Illinois in refusing a jury trial.\nWe have examined defendant\u2019s argument that there was insufficient proof of contempt beyond a reasonable doubt in the context of the record of the proceedings on May 4, 1973, and June 25, 1973. Defendant\u2019s statements in the record asserting judicial corruption, intimidation and dishonesty in the report of proceedings far exceed the limits of vigorous advocacy. The argument of jests in such statements is not persuasive. The record supports the conclusion that defendant never was prepared to comply with the court\u2019s rulings, or to proceed in an orderly manner in the presentation of the several matters, and that he did obstruct the course of the proceedings through his conduct. We refuse to accept the argument that the judge did not consider the statements and conduct contemptuous because he failed to declare an immediate direct contempt. We find it proper for the trial court to direct inquiry as to showing contempt based upon the record of the proceedings before him. The trial judge had been especially assigned by the court administrator\u2019s office. He promptly recused himself following the proceedings concerned. Such fact of record supports the inference that the assigned judge did not consider the conduct as lacking in the quality of contempt, or that the conduct did not obstruct the court\u2019s judicial administration.\nDefendant argues that the sentence imposed was excessive. In the cited People v. McDonnell (1940), 307 Ill. App. 368, 30 N.E.2d 80, People v. Buster (1966), 77 Ill. App. 2d 224, 222 N.E.2d 31, In re Magnes (1972), 8 Ill. App. 3d 249, 290 N.E.2d 378, and People v. Miller (1970), 130 Ill. App. 2d 637, 265 N.E.2d 175, the sentences by the respective trial courts were affirmed. Those authorities do not raise the issue of excessive sentences in the context of review. The record does not require the conclusion that the hearing judge abused his discretion.\nDefendant urges that the jail sentence must be vacated by reason of the decision in People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50. In that case, the trial court entered its order finding contempt and imposing sentence. The supreme court raised the issue sua sponte as to whether there should have been a hearing to permit defendant to present evidence in mitigation.\nHere, the order of the trial court was filed on June 25, 1979. Defendant\u2019s post-trial motion filed on July 6, 1979, alleged that the sentence was excessive but did not raise the issue that evidence in mitigation should have been heard. The opinion in Hogan notes that the hearing \u201cconcentrated on the question of contempt\u201d so that neither party addressed the question of punishment.\nHere, the record differs. As the matter approached a posture for hearing on March 28, 1978, defendant filed a motion to excuse his appearance at the hearing and waived his right to be present at a hearing scheduled for April 7, 1978. On March 30, 1979, defendant again filed a waiver of his right to be present during the trial and to testify. His affidavit, filed with such motion, asserted the exercise of his right \u201cpursuant to the provisions of Ill. Rev. Stat. \u00a738, Sec. 115 \u2014 8 to waive my presence at the trial of the above captioned case.\u201d The affidavit states an awareness of his right to be present and testify and his desire to give up such rights. On June 14,1979, defendant filed a waiver of \u201chis right to be present during the trial and possible sentencing on the Amended Rule to Show Cause filed in the above captioned case.\u201d (Emphasis added.) His accompanying affidavit included:\n\u201c2.1 wish to exercise my right pursuant to the provisions of Ch. 38 \u00a7115 \u2014 8 Illinois Revised Statutes to waive my presence at the trial and any possible sentencing in the above captioned case.\u201d (Emphasis added.)\nAs has been noted, the trial judge advised defendant of the possible outer limits of the sentence, including incarceration, during the course of a hearing upon motions. Thereafter, defendant filed the several waivers, motions and affidavits. While we do not imply that section 5 \u2014 4\u20141 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 4\u20141) governs, one finds as an analogy that the statutory provision for a sentencing hearing may be waived. (People v. Barto (1976), 63 Ill. 2d 17, 344 N.E.2d 433; People v. Diaz (1975), 30 Ill. App. 3d 496, 333 N.E.2d 568.) Here, the waiver in writing was verified.\nWe conclude that the motion supported by defendant\u2019s affidavit and the failure to raise any issue as to a hearing in the post-trial motion constitute a waiver, which distinguishes this case from Hogan.\nThe judgment is affirmed.\nAffirmed.\nWEBBER and LEWIS, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE TRAPP"
      }
    ],
    "attorneys": [
      "Paul Bradley, of Chicago, for appellant.",
      "Paul H. Vallandigham, Special Prosecutor, of Urbana, for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant.\nFourth District\nNo. 15735\nOpinion filed December 19, 1980.\nRehearing denied March 20, 1981.\nPaul Bradley, of Chicago, for appellant.\nPaul H. Vallandigham, Special Prosecutor, of Urbana, for the People."
  },
  "file_name": "0519-01",
  "first_page_order": 541,
  "last_page_order": 547
}
