author: JUSTICE JOHNSON

text:
    THE STATE OF ARIZONA ex rel. TARA GRANT PAINTER, Petitioner-Appellee, v. JACK WARD PAINTER, Respondent-Appellant.
    First District (4th Division)
    No. 1—91—0049
    Opinion filed November 5, 1992.
    Rehearing denied December 28,1992.

      Bernard Hammer, Ltd., of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Obyrietta Gammett Scott and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Jack Ward Painter (respondent), appeals from an order of the circuit court of Cook County denying his motion for attorney fees in a child support proceeding arising under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (Ill. Rev. Stat. 1987, ch. 40, par. 1201 et seq.). On appeal, the issues for review are whether the trial court (1) erred in finding that the Coconino County court of the State of Arizona had jurisdiction to receive, certify and forward petitioner’s RURESA petition; (2) erred in finding that the assistant State’s Attorney was not required to sign the RURESA petition pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137); (3) abused its discretion in denying respondent’s request for attorney fees and expenses pursuant to Supreme Court Rule 137 and section 2—611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611); and (4) erred in finding that the State of Arizona was not subject to the jurisdiction of the Illinois courts.

We affirm.

Tara Grant Painter (petitioner) and respondent were divorced in Travis County, Texas, on January 14, 1986. Petitioner was awarded custody of the parties’ two minor children. Respondent was ordered to pay petitioner child support of $325 per month per child, or $400 per month if only one child remained eligible for support. Following the dissolution of their marriage, respondent moved to Cook County, Illinois, and petitioner moved to Yavapai County, Arizona.

On January 31, 1989, petitioner filed a RURESA complaint in Coconino County, Arizona, alleging that respondent was $1,300 in arrears. As provided for under RURESA, the Cook County State’s Attorney issued notice for respondent to file an appearance. On August 31, 1989, respondent met with Assistant State’s Attorney Susan Plass. Respondent offered to produce cancelled checks to show that he was not delinquent. Attorney Plass declined to review the documents and advised respondent to obtain counsel.

Prior to court on November 14, 1989, respondent obtained an attorney and reviewed his records with Assistant State’s Attorney Plass. Once in court, respondent moved to dismiss the action for lack of subject matter jurisdiction. After an extensive hearing on the matter, respondent’s motion was denied.

Respondent’s counsel also moved to strike the petition on the ground that it was not signed by the assistant State’s Attorney as required by Supreme Court Rule 137. Again, the trial court heard extensive arguments on the issue. The trial court found that the petition was properly certified by the State of Arizona and denied respondent’s motion.

During the hearing, the State alleged that respondent was in arrears for December 1988 and January 1989 child support payments. Respondent presented evidence that he transferred $2,000 from his bank account to petitioner’s account in June of 1988. Respondent claimed that this was an advance on child support and deducted $2,300 from his payments. The State claimed that the $2,000 was a loan. The State contended that the loan payment could not be offset against future child support payments. The trial court found that respondent was not in arrears and ordered future payments to be made to the clerk of the circuit court of Cook County. Respondent moved for sanctions against petitioner, the State’s Attorney of Cook County, Assistant State’s Attorney Plass, and the State of Arizona. After a hearing, this motion was denied.

On appeal, respondent contends that the court erred in denying his motion for sanctions and attorney fees. Although the trial court found respondent was not in arrears on his child support payments, he also appeals procedural and substantive issues which were decided during the underlying claim. Respondent does not seek reversal of the underlying claim; however, he raises these issues to support his contention that he is entitled to reimbursement of his expenses pursuant to Supreme Court Rule 137.

We first address respondent’s contention that the trial court did not have subject matter jurisdiction over this action. Despite respondent’s suggestion, subject matter jurisdiction cannot be waived on review. Swope v. Northern Illinois Gas Co. (1991), 221 Ill. App. 3d 241, 243.

As a preliminary matter, we note that RURESA has been adopted in nearly all 50 States, including Arizona. (See Ariz. Rev. Stat. §12—1651 et seq. (1987).) The purposes of RURESA are to improve and extend by reciprocal legislation the enforcement of duties of support, and to enable the dependent in one State to enforce a duty of obligation of support owed by a person residing in another State. (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 396.) A court acting pursuant to RURESA has jurisdiction to hear cases which fall within the general category of support enforcement. See Ill. Rev. Stat. 1987, ch. 40, par. 1210.

In order to adequately address the issues, an explanation of a RURESA proceeding is required. The supreme court of Nebraska explained the application of RURESA as follows:

“RURESA provides two civil remedies. Under the first, *** the party claiming support, the obligee, may bring suit in the obligee’s home state, the initiating state (not necessarily the same state which entered the dissolution decree), and obtain a judgment for support in the state in which the obligor is present, the responding state. 1 H. Clark, The Law of Domestic Relations in the United States §7.6 (2d ed. 1987); [Ill. Rev. Stat. 1987, ch. 40, pars. 1204, 1208]. This part of the act contemplates that the obligee file in the initiating state a petition for support; if the initiating state court determines that the petition ‘sets forth facts from which it may be determined that the obligor owes a duty of supportf ] and that a court of the responding state may obtain jurisdiction of the obligor or his property,’ then the initiating state court shall forward the petition to the responding state. [Ill. Rev. Stat. 1987, ch. 40, par. 1214]. Thus, the initiating state court only determines whether further proceedings are warranted. [Citations.] Upon receipt of the petition, the responding state court notifies the prosecuting attorney, who ‘shall take all action necessary ... to enable the court to obtain jurisdiction over the obligor or his property and shall request... a hearing and give notice thereof to the obligor. ...’ [Ill. Rev. Stat. 1987, ch. 40, par. 1218(b)]. The responding state court then holds a hearing and must reach a determination as to whether the obligor owes a duty of support; if it so finds, ‘it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order.’ [Ill. Rev. Stat. 1987, ch. 40, par. 1224.] The same procedure may be used when the obligee and obligor are in different counties of the same state. [See People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389.]
The second remedy *** allows.the beneficiary of an outstanding support judgment of another state to register that judgment in the state where the obligor is present and provides a summary procedure for enforcing that judgment in the obligor’s state as if the registered judgment were one rendered by a court of that state. 1 H. Clark, supra; [Ill. Rev. Stat. 1987, ch. 40, par. 1235 et seq.].” Formanack v. Formanack (1990), 234 Neb. 325, 331-32, 451 N.W.2d 250, 255.

Respondent contends that petitioner was not a resident of Coconino County when she filed the RURESA petition and, therefore, Coconino County lacked jurisdiction to receive, certify, and forward the RURESA petition. Respondent submitted a map to the trial court to support his position that petitioner lived in Yavapai County, a county which adjoins Coconino. Respondent contends that proceedings to enforce duties of support must be originated in the county of residence of the respondent or petitioner in order to be an appropriate county. Ariz. Rev. Stat. §12— 2452B (1987).

The State counters that petitioner did live in Coconino County at the time the petition was filed. The State argues that based on the map respondent presented it was impossible to determine otherwise. The State further counters that the RURESA provision requires filing “in the appropriate court of any State in which the obligee resides.” (Ariz. Rev. Stat. §12 — 1660 (1987).) Based on this provision, the State argues that the proceeding need not be originated in petitioner’s resident county in order for it to be an appropriate county.

In this case, we believe the trial court’s finding is supported by both fact and law. First, the trial court did not believe respondent’s map was conclusive on the question of whether petitioner resided in Yavapai County. The trial court found that petitioner filed her action in the appropriate county. Cognizant that the trial court’s finding on a question of fact will not be reversed absent an abuse of discretion, we find that the trial court did not err in denying respondent’s motion to dismiss for lack of subject matter jurisdiction.

Second, even if the action was filed in an improper county, Coconino County was not deprived of jurisdiction to receive, certify and forward the petition. Section 12—1660 of RURESA provides that “[t]he complaint may be filed in the appropriate court of any state in which the obligee resides.” (Ariz. Rev. Stat. §12—1660B (1987); see Ill. Rev. Stat. 1987, ch. 40, par. 1211(b).) Our Illinois Supreme Court stated that “[b]y its plain language, [this section] states that no matter where an obligee resides, he or she can file a petition pursuant to RURESA in order to enforce a duty of support.” (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 395.) Applying this precedent to the case at bar, we find that petitioner was not required to file her action in the county in which she resides in order for Coconino County to maintain subject matter jurisdiction over this action.

Furthermore, section 12—2452 provides that a proceeding may be originated in the county of residence of the respondent or petitioner. (Ariz. Rev. Stat. §12—2452 (1987).) The venue provision of the statute provides that if an action is not brought in the. proper county, the court still maintains jurisdiction over the action unless the respondent files an affidavit requesting that the action be transferred to the proper county. Ariz. Rev. Stat. §12-404 (1987).

In this case, respondent failed to file an affidavit requesting that the action be transferred to the proper county. Accordingly, we find that the trial court did not err in denying respondent’s motion to dismiss for lack of subject matter jurisdiction.

Respondent also contends that the trial court erred in finding that the assistant State’s Attorney was not required to sign the RURESA petition. Supreme Court Rule 137 provides in pertinent part as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law ***. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. ***
This rule shall apply to the State of Illinois or any agency of the State in the same manner as any other party.” (134 Ill. 2d R. 137.)

Rule 137 also provides that sanctions shall be imposed against a party or attorney who signed the pleading in violation of the statute. 134 Ill. 2d R. 137.

Effective August 1,1989, Supreme Court Rule 137 preempts section 2—611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). Rule 137 is almost identical to section 2—611; however, under Rule 137, the imposition of sanctions is a matter upon which the trial court may exercise discretion. In section 2—611, the imposition of attorney fees to adverse parties was mandatory. Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 605.

The State, on appeal, concedes that RURESA petitions are subject to the signing requirements imposed by Supreme Court Rule 137. However, although the trial court erred in failing to require Assistant State’s Attorney Plass to sign the petition, we believe the error was cured by her appearance before the court. “The oral representations of an officer of the court, when in the form of a motion, should have the same effect as a signed, written motion within the context of section 2—611.” (Modern Mailing Systems, Inc. v. McDaniels (1989), 191 Ill. App. 3d 347, 351.) Attorney Plass, in orally addressing the court, was certifying that her representations were based on reasonable inquiry, well grounded in fact, and warranted by existing law or a good faith argument for extension, modification or reversal of existing law. We therefore find that the trial court’s failure to require attorney Plass to sign the RURESA petition was harmless error.

Next, respondent contends that the trial court erred in denying his motion for attorney fees. Respondent contends that the State failed to make reasonable inquiry as to whether or not he was in arrears. The State argues that the denial of sanctions by the trial court did not constitute an abuse of discretion because there was a genuine issue over the crediting of a $2,000 payment. We must therefore determine whether the trial court abused its discretion in denying respondent’s motion for attorney fees and sanctions.

Section 2—611 of the Code of Civil Procedure provides for the imposition of attorney fees and costs for the filing of frivolous and unreasonable pleadings. (Ill. Rev. Stat. 1989, ch. 110, par. 2—611.) “The grant or denial of a motion for sanctions rests within the sound discretion of the circuit court.” (Laurence v. Flashner Medical Partnership (1990), 206 Ill. App. 3d 777, 788.) Furthermore, “[w]hether a hearing must be held to determine if the allegations within a pleading are true and made without reasonable cause depends upon the circumstances in each case.” (Beno v. McNew (1989), 186 Ill. App. 3d 359, 365-66.) “In evaluating the conduct of an attorney or party who signs a document or makes a motion, a court must determine what was reasonable to believe at that time rather than engage in hindsight.” (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334.) Although a hearing on both the merits of the petition and the amount of expenses is usually held, “no such hearing is necessary if the requirements can be satisfied by looking at the pleadings, trial evidence, or other matters appearing in the record.” Beno, 186 Ill. App. 3d at 366.

Under the circumstances of this case, we do not believe the court abused its discretion in denying respondent’s motion for reimbursement of fees and expenses. Petitioner, a resident of Arizona, alleged that she had not received checks for December 1988 and January 1989. Attorney Plass reviewed the cancelled checks and could not find checks for the two months petitioner alleged respondent was in arrears. Upon learning of a previous $2,000 payment to petitioner, attorney Plass sent respondent’s proof to the State of Arizona. In asserting that respondent was in arrears, petitioner did not deny receiving a $2,000 loan. She denied, however, that it was prepaid child support. Her position was that the $2,000 was a loan. The State asked the court to decide whether the $2,000 was a loan or not, and if the payment could be retroactive. Although the issue of arrearage was resolved against petitioner that does not mean she should be penalized for litigating it. (Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1005.) In addition to this finding, the court ordered respondent to make all future payments through the clerk of the court of Cook County.

Furthermore, in light of the application of RURESA, we believe attorney Plass exercised due inquiry. After respondent asserted a defense of a previous payment to petitioner, attorney Plass sent proof of payment to the State of Arizona. We do not believe attorney Plass was required to anticipate respondent’s affirmative defenses. Upon receiving proof of payment, petitioner denied that it was prepaid child support and the trial court was requested to make a determination. Here, the trial court refused to find that attorney Plass failed to exercise due inquiry. Having an opportunity to look at the pleadings, trial evidence and all other matters appearing in the record, the trial court was in the best position to make this determination. On review, we believe the record supports a finding that the State’s argument regarding the application of funds to missing child support payments was made in good faith and after due inquiry.

Respondent cites the case of State of Maine Department of Human Services ex rel. Smail v. Smail (1981), 100 Ill. App. 3d 997, to support his position. However, we believe the facts in Smail are distinguishable from the case at bar. In Smail, the attorney for the plaintiff stipulated that the defendant was not in arrears. (Smail, 100 Ill. App. 3d at 999.) However, in this case, the State did not enter into any such stipulation. There was an issue of fact for the trial court to decide regarding a $2,000 check which petitioner stated was a loan on a different matter not related to child support. We therefore find that Smail is inapplicable to this case. Accordingly, we hold that the trial court did not abuse its discretion in denying relief under Supreme Court Rule 137.

Lastly, respondent contends that the circuit court of Cook County has jurisdiction over the State of Arizona and that Arizona may be subject to reimbursing respondent for attorney fees. We disagree.

In a RURESA proceeding, “the initiating state court only determines whether further proceedings are warranted.” (Formanack v. For manack (1990), 234 Neb. 325, 331, 451 N.W.2d 250, 255, citing Pfueller v. Pfueller (1955), 37 N.J. Super. 196, 117 A.2d 30; Matter of Burke v. Adams (1987), 130 A.D.2d 100, 518 N.Y.S. 2d 148; Prager v. Smith (D.C. 1963), 195 A.2d 257; State ex rel. Lyon v. Lyon (1959), 75 Nev. 495, 346 P.2d 709; State v. Perry (1955), 198 Tenn. 389.) “[T]he initiating state need not determine whether a duty of support exists.” Formanack, 234 Neb. at 334, 451 N.W.2d at 257.

Here, petitioner filed a petition to obtain a judgment of support. After interviewing petitioner, Arizona certified and forwarded the petition to Illinois. Arizona did not conclusively determine in its petition that respondent owed a duty of support. The petition merely sets forth facts to establish that further proceedings were warranted. Under this standard, we cannot conclude that Arizona submits to the jurisdiction of Illinois courts for the purpose of assessing attorney fees in a RURESA proceeding.

Again, respondent relies on State of Maine Department of Human Services ex rel. Smail v. Smail for the proposition that the State of Arizona may be subject to jurisdiction in Illinois. However, respondent’s reliance is misplaced. In Smail, the State welfare agency initiated an action and was a party in interest in the proceeding. Respondent concedes that Delores Smail, whom the State represented, was not involved in the judgment. In this case, petitioner initiated the action on her own behalf. Although Arizona and Illinois are necessary parties to this action, neither Arizona nor Illinois has an interest in the outcome of the action. The cases cited by respondent are also distinguishable on the basis that the State is a party that has an interest in the outcome of the litigation.

Here, we find that Arizona is not a party in interest in this proceeding and, therefore, has not submitted to the jurisdiction of Illinois courts. Accordingly, we hold that the trial court did not err in finding that Arizona was not subject to the jurisdiction of the Illinois courts.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY RUSH, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3184
    Opinion filed October 16, 1992.
    Modified on denial of rehearing January 8,1993.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee G. Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Defendant was found guilty of aggravated criminal sexual assault and aggravated kidnapping for attacking a woman outside a bar. The trial judge denied defendant’s post-trial motion for a new trial and sentenced defendant to an extended term of 55 years on the aggravated criminal sexual assault, merging the sentence for the aggravated kidnapping conviction into the same 55-year sentence.

Defendant appeals and raises as issues: whether the aggravated criminal sexual assault statute is unconstitutional; whether the jury was improperly instructed; whether the State made improper remarks in closing arguments; and whether his sentence was excessive.

At trial, the victim, D.L., testified that at about 10:30 p.m. on January 25, 1987, she, her roommate, Marsha Stewart, and a friend, Bonnie Nash, went to a neighborhood lounge at 624 East 47th Street for a birthday party. She testified that defendant joined the group at the table and bought some drinks for those present. She testified that defendant danced with her and with Nash. When the bar closed at 2 a.m., she left alone to go to a 4 a.m. bar down the street. She denied that defendant said he would go with her. The victim testified that she had taken three steps outside the door when defendant grabbed her right arm from behind and told her she was going to have sex with him. She testified that defendant hit her in the face with his fist five or six times and he continued to beat her when she fell to the ground. She testified that she fought back, refusing to go with him, but he dragged her into an alley next to a vacant lot and forced her into the basement of an abandoned building. The victim testified that he sexually assaulted her but fled out a stairwell when he saw a light and heard a car passing by. She testified that Nash came to her and she told Nash that defendant had raped and beaten her.

Nash testified she left the lounge one or two minutes after the victim. She heard screaming and saw a number of people outside the lounge. She then saw the victim on the ground and defendant lying on top of her, beating her with his fists. The victim was yelling, “Somebody help me, help me.” Nash ran back to the lounge and used the phone to dial 911 but could not get through. She testified that she then ran to the street, screaming and asking people in cars to help. She testified that a police car came by and stopped and she told the officer inside that the defendant had taken the victim and “might kill her.” The officer radioed for assistance, and the two drove to the area Nash indicated. Nash testified that when the officer heard a call for help from an abandoned building, he got out of the car and proceeded toward the building on foot. She testified that a second officer pulled up and joined him in the alley behind East 47th Street, searching the alley with flashlights. As they flashed their lights into the basement stairwell, she saw the defendant run out. She testified that the officer told defendant to freeze but when defendant stopped he put his hand near his pocket. She testified that the officer fired at defendant, and defendant continued to run with the officer in pursuit. She testified that she and another officer went into the stairwell to help the victim. She found the victim with clothing torn. She was crying, beaten and bloody all over the face. The victim told her the defendant had beaten and raped her. Nash helped the victim out of the stairwell and into a police car. Nash went with the victim to Michael Reese Hospital, where her injuries worsened, and she “couldn’t hardly walk.” Nash stayed with the victim at the hospital that night and the next day.

Chicago police officer Charles Johnson testified that he was patrolling the area east of 47th Street at about 2 a.m. on January 26, 1987, when he was flagged down by Nash. He radioed for police assistance and, with Nash in the car, he circled the area until he heard a call for help from a building at 4640 South Champlain. Johnson testified that he exited his patrol car and, joined by Sergeant James Turney, they proceeded to the building on foot with flashlights. Johnson testified that they found the victim and defendant in a stairwell and that Turney shot at defendant when he fled. While Turney went into the stairwell to assist the victim, Johnson chased defendant through an alley and a yard but lost sight of him. As defendant fled the area, other officers arrived and together with Johnson they followed fresh footprints in the snow that led to an abandoned building in the vicinity of St. Lawrence Street, about two blocks away. Johnson, Officer Carl Stoll and another officer entered the building and in a bedroom closet of the basement apartment, Stoll found defendant crouched under a sheet. Defendant was bleeding from the left foot and was shoeless on the right foot. Johnson read defendant his Miranda rights and placed him under arrest. Johnson testified that he then returned to the crime scene and found the victim. He observed that she had bruises, lacerations and blood on her face and had been drinking.

Chicago Sergeant James Turney testified that he responded to Johnson’s radio call for assistance and joined him in a foot search with flashlights in the alley area behind East 47th Street. He testified that as he flashed his light into the basement stairwell of an abandoned building defendant ran out of the stairwell. Turney yelled for defendant to stop. Turney testified that after defendant ran for 5 or 10 yards, the defendant turned toward him and made a motion at his waistband. Turney fired one shot at the defendant’s lower extremity because he thought defendant was pulling out a weapon. In the stairwell, Turney discovered the victim, naked except for some torn garments and kneeling and with her hands on the ground trying to get up. He testified that a friend of the victim’s got out of Johnson’s police car and the two assisted the victim.

Officer Carl S. Stoll testified that he and partner Erbacher responded to Johnson’s call for assistance that evening. He testified that the three chased defendant for two blocks, tracking him by his bloody footprints in the snow. They followed him to the back of a vacant building in the vicinity of St. Lawrence Street. Stoll testified that when he moved into one of the bedrooms and looked into the closet area he saw dirty sheets “moving” at the rear of the closet. He testified that Erbacher pulled off the sheet and the three found defendant in a crouched position. He observed that defendant had been shot in the left foot and his right foot was shoeless. Johnson read defendant his Miranda rights and placed him under arrest. As they exited the building, Stoll observed defendant’s right shoe in the snow outside the building. Stoll testified that he and Erbacher then took defendant to Provident Hospital. Stoll identified defendant and both his shoes at trial.

Maria Stewart, the victim’s roommate, testified to the victim’s presence in the lounge earlier in the evening and to the physical condition of the victim’s face before and after the assault.

Dr. Michelle Armendia treated the victim in the emergency room of Michael Reese Hospital for facial abrasions and lacerations. She conducted a general physical examination but did not conduct a gynecological examination because another physician performed that exam when she was not present. She testified that the victim’s chart contained a notation that the victim had a history of drug use.

The State rested. Defendant’s motion for directed verdict was denied. The defense called no witnesses.

Defense counsel offered by stipulation that Detective Valeslac would testify that his notes showed the victim told him defendant had bought her four rum and Coke drinks and that he noted in his report that the victim was wearing “no bra.” It was further stipulated that Officer Johnson would testify that the victim told him that while inside the bar the defendant said he would walk with her to Grady’s Lounge. The defense rested.

Following closing arguments, the jury found defendant guilty of aggravated criminal sexual assault and aggravated kidnapping. The trial court sentenced defendant to 55 years in prison for the aggravated criminal sexual assault. The trial judge stated that he believed the aggravated kidnapping conviction “merged” with the aggravated criminal sexual assault and therefore did not sentence defendant on the aggravated kidnapping conviction. Defendant’s motion for a new trial was denied and defendant appealed.

Initially we consider defendant’s challenge to the constitutionality of the aggravated criminal sexual assault statute. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14.) Defendant contends he was denied due process because aggravated criminal sexual assault requires no proof of a mental state while the lesser offense of criminal sexual abuse, a Class 2 felony, does. Secondly, defendant contends the aggravated criminal sexual assault statute is overbroad because it fails to limit the scope of the underlying offense to those acts done solely for the purpose of the sexual gratification of the accused or the arousal of the victim.

These precise arguments were rejected by the Illinois Supreme Court in People v. Terrell (1989), 132 Ill. 2d 178, 207-11, 547 N.E.2d 145, where the court upheld the reasoning in People v. Burmeister (1986), 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212 (a mental state of either intent, knowledge, or recklessness will be implied), and People v. Haywood (1987), 118 Ill. 2d 263, 275-77, 515 N.E.2d 45 (trial court erred in finding statute unconstitutionally vague and indefinite).

In the same vein, defendant contends that the jury was improperly instructed regarding the necessary elements of an aggravated criminal sexual assault conviction because the jury instruction failed to include a mental state. Because mental state is implied, however, the courts have consistently held that it is not error to omit the implied mental state from the jury instructions. People v. Smith (1991), 209 Ill. App. 3d 1043, 1061, 568 N.E.2d 482; People v. Williams (1989), 191 Ill. App. 3d 269, 275, 547 N.E.2d 608.

Therefore, we reject defendant’s contention that the statute is unconstitutional and that the jury was subsequently improperly instructed.

Defendant also challenges two other aspects of the jury instructions: (1) that the jury was improperly instructed on the elements of aggravated kidnapping because the instructions failed to contain the essential element of “intent to secretly confine”; and (2) that the instructions for aggravated kidnapping alleged the commission of an underlying felony not charged in the indictment.

Generally an error in jury instructions is waived if defendant fails to object at trial, offers no alternate instructions and/or fails to raise the issue in post-trial motions. (People v. Shields (1991), 143 Ill. 2d 435, 446, 575 N.E.2d 538.) This rule is not absolute, however, and the plain error rule will apply where the evidence is closely balanced or the defect substantially affects the defendant’s right to a fair trial. Shields, 143 Ill. 2d at 446.

Here defendant neither objected to the jury instructions given, nor tendered alternate instructions. Defendant’s motion for a new trial did not address improprieties in the jury instructions. Defendant therefore waived any objections to jury instructions.

Despite this waiver, however, we will consider as a question of fundamental fairness the propriety of the jury instruction for aggravated kidnapping. Defendant contends that the plain error exception to the rule should apply because the instruction erroneously omitted an essential element of the crime. Fundamental fairness requires that the trial judge ensure that the instructions on the essential elements of an offense are given. People v. Payne (1990), 194 Ill. App. 3d 238, 246, 550 N.E.2d 1214.

Here the jury was instructed that to sustain a charge of aggravated kidnapping, the State must prove: first, that the defendant acted knowingly; second, that the defendant, by force or threat of imminent force, carried D.L. from one place to another; and third, that the defendant committed the offense of aggravated criminal sexual assault upon D.L.

According to the Illinois Pattern Jury Instructions, however, the instruction for aggravated kidnapping also includes the essential element that the “defendant secretly confined [the victim] against her will.” Illinois Pattern Jury Instructions, Criminal, No. 8.05 (2d ed. 1981).

We agree with defendant that the instruction on aggravated kidnapping omitted an essential element of the crime. We find this error to be harmless, however, in light of two other factors. First, the jury was instructed properly that “a person commits the offense of kidnapping when he knowingly and secretly confines another person against his will.” This instruction was given after the aggravated kidnapping instruction and would have helped to guide the jury as to the elements essential to defendant’s conviction. In addition, the State argued in closing that it proved the defendant “secretly contained” the victim by dragging her to a secluded spot. Second, we find the evidence of defendant’s guilt so overwhelming that the exception to the waiver rule does not apply. The victim and several witnesses testified to defendant’s actions without contradiction by defense witnesses. Defendant’s case was not so close factually that fundamental fairness requires reversal. People v. Thurman (1984), 104 Ill. 2d 326, 330, 472 N.E.2d 414.

Defendant’s final challenge to the jury instructions is that the jury was improperly instructed not to concern itself with the possible punishment or sentence for the offense charged. The relevant instruction is Illinois Pattern Jury Instructions, Criminal, No. 1.01(4) (3d ed. 1992) (hereinafter IPI Criminal 3d No. 1.01(4)), which states:

“You are not to concern yourself with possible punishment or sentence for the offense charged during your deliberation. It is the function of the trial judge to determine the sentence should there be a verdict of guilty.”

One of the committee comments is that this instruction should not be used unless the issue of punishment is raised during trial. The purpose of limiting the use of the instruction is to avoid injecting into the trial and the deliberations of the jury extraneous and irrelevant matters that have no bearing on defendant’s guilt or innocence. People v. Meeker (1980), 86 Ill. App. 3d 162, 170, 407 N.E.2d 1058.

In the case sub judice, the issue of punishment was not raised during the trial, and at the conference on jury instructions defendant objected to the use of IPI Criminal 3d No. 1.01(4). The trial judge acknowledged that the use of the instruction was contrary to the statement in the committee comments, but he gave the relevant instruction over defendant’s objection. Defendant also raised the issue of the improper use of the instruction in his post-trial motion which the trial court denied.

While we agree with defendant’s contention that the trial court’s use of the challenged instruction was improper, we find that instructing the jury on IPI Criminal 3d No. 1.01(4) did not result in any prejudice to defendant. Defendant argues that the improper instruction infringed upon the jury’s power of lenity. The jury's power of lenity is applicable when the jury tenders verdicts which are logically inconsistent but where a determination is made that the apparent inconsistency “may reflect the jury’s belief that conviction of less than all the charges would sufficiently punish defendant. [Citation.] It is well established that the jury’s historic power of lenity prevails over traditional doctrine concerning inconsistent verdicts.” People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1025, 516 N.E.2d 382; see also People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755.

However, in the case sub judice, defendant’s argument regarding the jury’s power of lenity is misplaced where there was no inconsistency in the verdict. We also conclude that People v. Shackles (1977), 44 Ill. App. 3d 1024, 358 N.E.2d 1329, which defendant cites in support of his argument, is distinguishable. In Shackles, the trial court instructed the jury regarding a statute in effect at the time of the occurrence which provided that no person under the influence of intoxicating liquor was allowed to drive a vehicle within the State. Because there was no evidence of defendant’s intoxication, the appellate court held that the tendering of this instruction was prejudicial and thus reversible error. (See Shackles, 44 Ill. App. 3d at 1025.) However, we find no comparable prejudice to defendant as a result of instructing the jury on IPI Criminal 3d No. 1.01(4). In addition, as we have already discussed, the evidence of defendant’s guilt was not closely balanced but was clear and convincing. Therefore, we conclude that even though the giving of the instruction may have been improper, the error was harmless and did not require reversal. People v. Terry (1984), 99 Ill. 2d 508, 516, 460 N.E.2d 746; People v. Ward (1965), 32 Ill. 2d 253, 255-56, 204 N.E.2d 741.

Next we consider defendant’s contention that three remarks by the State in the rebuttal portion of closing arguments so prejudiced his trial that his conviction should be reversed. First, the prosecutor noted that the victim had used drugs in the past, and then stated: “If any person that has ever used drugs becomes a viable rape victim; poor Betty Ford, poor everybody that’s been to her clinic. They better open a rape advocacy clinic at the Betty Ford, because they just hand out targets, I used drugs, you can rape me.”

Defendant argues that the references to drug users and the Betty Ford clinic only served to conjure up images of additional victims and inflamed the jury’s passions about future crimes that could occur. Defendant relies on People v. Fletcher (1987), 156 Ill. App. 3d 405, 411, 509 N.E.2d 625, where the court found the prosecutor’s closing argument to be inflammatory and representative of the prosecutor’s own opinion. In that sexual abuse case, involving a seven-year-old victim and a family member, the prosecutor stated that an acquittal would mean “a seven-year-old’s testimony can never convict a defendant,” and an acquittal would serve to “encourage potential sex offenders to abuse families.” In reversing, the appellate court noted that the prosecutor persisted in making such comments, despite the trial court’s sustaining of defense objections. The court held that the cumulative effect of the remarks was designed to arouse the prejudices of the jury without throwing any light on the question of defendant’s guilt. Fletcher, 156 Ill. App. 3d at 412.

We do not believe the comment about drug users was on par with the severity of the language used in Fletcher. Nor do we find support in two other cases defendant relies upon which involved far more prejudicial comments by prosecutors. People v. Hayes (1989), 183 Ill. App. 3d 752, 539 N.E.2d 355 (prosecutor erred in detailing her personal experience with a near-rape to bolster the credibility of the victim’s testimony about a rape); People v. Crossno (1981), 93 Ill. App. 3d 808, 821-24, 417 N.E.2d 827 (prosecutor erred by misstating the law, personally commenting on the credibility of witnesses and referring to defendant’s potential sentence).

Defendant also cites error in the prosecutor’s remarks that, “This is the guy, Mr. Innocent, no identification problem here, hiding in a closet in an abandon [sic] building, under a sheet.” Shortly after the prosecutor concluded: “And at this point, after listening to all that evidence, now, you have the responsibility and you have the duty to reach down into the comer of that closet and to pull the sheets off this man and call him what he is. To remove that sheet, remove the cloak of innocence from him, at this time, because of the things that you have heard from up here.”

Defendant contends these mocking references to his innocence effectively trivialized the presumption of innocence in his favor and thereby minimized the State’s burden of proof. Defendant relies on cases where the court found that the prosecutors’ comments resulted in violations of defendants’ fifth amendment right to silence (Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634; People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485; People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 334), and sixth amendment right to counsel (People v. Meredith (1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306).

The State argues that the defendant has failed to preserve for appeal any issues as to closing arguments because defendant made no objections at trial (People v. Richardson (1988), 123 Ill. 2d 322, 340, 528 N.E.2d 612), and did not raise the issue in his motion for a new trial (People v. Smith (1985), 139 Ill. App. 3d 21, 27, 486 N.E.2d 1347). In addition, the State argues that the evidence of defendant’s guilt was so overwhelming that any error was harmless. People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970.

The record establishes that no objections were made at the time of closing arguments. In defendant’s motion for a new trial, he contended only that prejudicial remarks by the State in closing involved statements allegedly made by the defendant which were never brought out at trial.

An appellate court must consider each case upon its own facts. In determining whether a prosecutor’s comments are prejudicial, the court must refer to the content of the language that the prosecutor used, its relation to the evidence and the effect of the argument on the rights of the accused to a fair and impartial trial. Fletcher, 156 Ill. App. 3d at 411.

We agree with the State that defendant waived his right to object to closing arguments. Defendant urges us to apply the plain error rule (134 Ill. 2d R. 615) and conclude that error occurred and the error was not harmless. We have found, however, that the evidence was not so closely balanced to merit the application of plain error. Even were we to consider the issue, arguendo, we deem that the closing arguments, viewed in their entirety, did not substantially prejudice defendant’s right to a fair and impartial trial.

Defendant also contends the trial court erred by not vacating his conviction for aggravated kidnapping based on the judge’s own observation at the sentencing hearing that the aggravated criminal sexual assault and the aggravated kidnapping “merged” and “should all be one act, one crime.”

Defendant argues that under People v. Smith (1980), 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117, a charge of aggravated kidnapping cannot stand where the facts establish that: (1) the asportation, or removal of the victim from one place to another; was only for a short period of time; (2) occurred during the commission of a separate offense; (3) was inherent in the separate offense; and (4) offered no significant danger to the victim independent of that posed by the felony. Smith, 91 Ill. App. 3d at 529.

Defendant contends that here the facts established that the victim’s confinement was a mere 50 feet from the location of the original altercation, lasted only five minutes, occurred during the commission of a separate offense which by its nature requires privacy and posed no significant danger to the victim other than the danger incident to the separate felony.

Defendant cites in support People v. Kuykendall (1982), 108 Ill. App. 3d 708, 414 N.E.2d 1117, which did not involve aggravated kidnapping but instead involved home invasion and unlawful restraint. Defendant also cites People v. Young (1983), 115 Ill. App. 3d 455, 470, 450 N.E.2d 947, where the court found that the act of grabbing the victim and throwing her against a wall did not constitute kidnapping, a prerequisite to aggravated kidnapping. We find neither of these cases useful to our analysis.

The State contends that since no sentence was imposed on the aggravated kidnapping charge, defendant’s appeal must be dismissed and the conviction cannot be vacated. (People v. Flores (1989), 128 Ill. 2d 66, 95, 538 N.E.2d 481.) The State argues further that separate convictions for aggravated kidnapping, rape and deviate sexual assault have been upheld. See People v. Olesch (1986), 143 Ill. App. 3d 577, 588, 492 N.E.2d 1381.

The State also relies on People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540, where a defendant was convicted of several crimes, including rape and aggravated kidnapping, but sentenced on the rape conviction only because the trial judge held that the aggravated kidnapping “would merge into the rape count.” The appellate court affirmed the convictions but remanded the cause for sentencing on the aggravated kidnapping conviction. (People v. Scott (1977), 45 Ill. App. 3d 487, 359 N.E.2d 878.) The Illinois Supreme Court upheld the appellate court’s remand. (Scott, 69 Ill. 2d 85.) The State argues that this court therefore is not barred from letting the dual convictions stand or permitting imposition of a sentence on each offense. More recent authority supports the State’s position.

The court in People v. Sherrod (1991), 220 Ill. App. 3d 429, 436-37, 581 N.E.2d 53, applied the Smith factors to uphold a kidnapping conviction separate from a sexual assault conviction. The court there reasoned that the asportation from the street to a garage was not inherent in sexual assault and that forcing the victim into an alley and garage posed a significant danger to the victim separate from that posed by the sexual assault. (Sherrod, 220 Ill. App. 3d at 436; see also People v. Riley (1991), 219 Ill. App. 3d 482, 489, 579 N.E.2d 1008 (forced movement of a victim from one location to another place is not inherent in the offense of criminal sexual assault).

Kidnapping convictions have been upheld under the Smith test where the victim was transported half a block (People v. Thomas (1987), 163 Ill. App. 3d 670, 516 N.E.2d 901), and where the asportation lasted only a few minutes (People v. Pugh (1987), 162 Ill. App. 3d 1030, 516 N.E.2d 396).

We hold that the trial court did not err when it denied defendant’s request to vacate the aggravated kidnapping conviction and that defendant was properly convicted of both aggravated kidnapping and aggravated criminal sexual assault.

Finally, we consider defendant’s challenge to his 55-year extended-term sentence on the aggravated criminal sexual assault, which he alleges was imposed in part based on an improper aggravating factor of the aggravated kidnapping charge. He contends also that the sentence was unjustifiably punitive.

Defendant contends that the 55-year sentence was unduly harsh and constituted an abuse of discretion where the evidence established that the offense was an “escalation of a social affair” and was a “drunken misunderstanding over sexual intentions.” Defendant argues that the victim faced a “lack of apparent danger or aggravating physical harm” and asks this court also to consider the mitigating factor of alcohol.

Defendant contends that the trial court gave undue consideration to the aggravated kidnapping conviction when imposing sentence. Before imposing sentence the judge commented: “Also, maybe from a very technical standpoint, because there are two crimes, the aggravated criminal sexual assault and the aggravated kidnapping *** all in my mind merge *** I don’t believe that there is an appropriate provision in the law that would allow me to give consecutive sentences on that. I believe it should all be one act, one crime.”

Defendant offers People v. Hornbuckle (1972), 7 Ill. App. 3d 328, 332, 287 N.E.2d 294, as support for reducing defendant’s sentence. However, in that case the defendant was a model parolee with several mitigating factors in his favor. In this case, the trial judge heard evidence of misconduct on defendant’s part, both in and out of jail, including defendant’s threatening of a prison guard, exposing himself numerous times to female staff and female visitors at the prison, and other physical assaults on male and female prison staff. The trial judge commented on defendant’s “abominable” record both in and out of prison, found that defendant chose not to be rehabilitated and that he was a danger to society. In imposing a sentence, the trial judge stated that he found 55 years to be an appropriate sentence because it would “keep Mr. Rush in jail until he is about 55 years of age.”

A trial judge’s decision on sentencing is entitled to great weight and will not be disturbed absent a showing of an abuse of judicial discretion. (People v. Webster (1988), 175 Ill. App. 3d 119, 135, 529 N.E.2d 741.) In Webster, the appellate court upheld a 60-year extended-term sentence for aggravated criminal sexual assault.

The trial judge heard extensive testimony in aggravation and mitigation, and on appeal, defendant asks us to reweigh this evidence. We decline to do so. Considering the sentencing hearing as a whole, we find no abuse of discretion in sentencing defendant to an extended term (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2). We therefore affirm defendant’s 55-year sentence for aggravated criminal sexual assault.

Affirmed.

McNAMARA, P.J., and EGAN and RAKOWSKI, JJ.

       Justice LaPorta participated in this case before her death. Justice Egan has been substituted. He has read the briefs and has listened to the tape of the oral arguments.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE E. DENNY, Defendant-Appellant.
    Fourth District
    No. 4—92—0026
    Opinion filed December 10, 1992.

      Michael J. Costello, of Costello Law Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

After a December 1991 jury trial, defendant, Dale Denny, was convicted of violation of bail bond under section 32 — 10 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 10). The trial court later sentenced defendant to 10 years in prison. Defendant appeals, arguing that the State failed to prove an element of the offense.

We agree and reverse.

I. Background

In June 1990, in Logan county case No. 90—CF—53, the State charged defendant with aggravated criminal sexual assault and home invasion (Ill. Rev. Stat. 1989, ch. 38, pars. 12—14, 12—11). In July 1990, defendant posted 10% of his $50,000 bail and was released from jail. In October 1990, a jury found defendant guilty of both offenses, and the trial court scheduled the sentencing hearing for December 7, 1990. Defendant failed to appear at that hearing, but the court sentenced him in absentia to 12 years in prison for home invasion and 8 years in prison for aggravated criminal sexual assault, with those sentences to run consecutively.

At the conclusion of the December 7 hearing, the trial judge, Judge David L. Coogan, stated the following:

“[DJefendant has violated the terms and conditions of his bond in that he has not appeared back for sentencing. That bond would have to be revoked, and there is a warrant out for [defendant’s] arrest.” (Emphasis added.)

Judge Coogan also made the following docket entry regarding the December 7 hearing: “[Defendant having violated the condition of his bond[,] the bond is hereby revoked.” (Emphasis added.)

In July 1991, defendant was apprehended in Mexico and ultimately transferred back to Logan County, Illinois. On September 27, 1991, defendant was charged with violation of bail bond (Ill. Rev. Stat. 1989, ch. 38, par. 32—10). On November 27, 1991, prior to defendant’s jury trial on this charge, the trial court, with another judge presiding, held a hearing on pretrial motions. Over defendant’s objections, the trial court heard testimony from Judge Coogan on his intent on December 7, 1990, when he declared defendant’s bail revoked and when he made the docket entry for that day. The trial court then allowed Judge Coogan to amend his December 7, 1990, record entry nunc pro tunc. Thus, on November 27, 1991, Judge Coogan entered the following amended docket entry in Logan County case No. 90—CF—53: “The court does hereby find that defendant’s bond was forfeited by the action of the court on 12/7/90.” (Emphasis added.)

At defendant’s trial on December 2, 1991, the trial court judicially noticed Judge Coogan’s nunc pro tunc docket entry and informed the jury that defendant had forfeited his bond on December 7, 1990. The jury subsequently found defendant guilty of violation of bail bond.

II. Analysis

On appeal, defendant argues that the language of the December 7, 1990, docket entry — noting that defendant’s bond “would have to be revoked” — is clear and unambiguous. Further, defendant argues that “revoking” a bond is different than “forfeiting” it, and that the trial court cannot change its record showing that no forfeiture occurred months after its entry. Therefore, because Judge Coogan never specifically “forfeited” defendant's bond, defendant contends that he cannot be found guilty of a violation of bail bond. We agree.

Section 32—10 of the Code states, in pertinent part, the following:

“Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and willfully fails to surrender himself within 30 days following the date of such forfeiture, commits, if the bail was given in connection with a charge of felony or pending appeal or certiorari after conviction of any offense, a felony of the next lower Class or a Class A misdemeanor if the underlying offense was a Class 4 felony; or, if the bail was given in connection with a charge of committing a misdemeanor, or for appearance as a witness, commits a misdemeanor of the next lower Class, but not less than a Class C misdemeanor.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 32—10.

As the above statute makes clear, violation of bail bond occurs after (1) a defendant has posted bail bond; (2) the trial court orders the bail bond forfeited; (3) defendant fails to surrender within 30 days after the forfeiture; and (4) defendant’s failure to surrender was wilful. (See People v. Lynn (1980), 89 Ill. App. 3d 712, 714, 412 N.E.2d 15, 17.) Because Judge Coogan did not originally forfeit defendant’s bond at the December 7, 1990, hearing, the State’s case fails unless the law permits Judge Coogan to amend his December 7 order nune pro tunc. We hold it does not.

A nunc pro tunc order makes the record “speak now for what was actually done then.” (Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 856, 494 N.E.2d 1182, 1184.) Such orders may be used to correct clerical errors, not judicial oversights. (Beck v. Stepp (1991), 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827.) In Beck, the Illinois Supreme Court wrote the following about nunc pro tunc orders:

“The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the court. A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. [Citation.] Judgments may be modified nunc pro tunc only when the correcting order is based upon evidence such as a ‘note, memorandum or memorial paper remaining in the files or upon the records of the court.’ [Citation.] The evidence supporting a nunc pro tunc modification must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court. [Citation.]
* * *
Nunc pro tunc orders must be based upon definite and precise evidence in the record. [Citation.] The certainty of evidence must be assured without reliance upon the memory of the judge or any other person, and a nunc pro tunc order cannot be based upon ex parte affidavits or testimony (Emphasis added.) Beck, 144 Ill. 2d at 238-39, 579 N.E.2d at 827.

Our review of the record before us reveals no mention anywhere by anyone that defendant had forfeited his bail bond. During the December 7, 1990, sentencing hearing at which defendant did not appear, the State did not ask for a bond forfeiture nor did anyone discuss it. Prior to the nunc pro tunc order of November 27, 1991, the record is completely devoid of the word “forfeit” or any suggestion of a forfeiture of defendant’s bond.

The State argues that Judge Coogan’s true intent when he ordered defendant’s bond revoked was to declare a forfeiture of the bond. The State may be correct in so arguing, but Judge Coogan’s true intent does not matter. Neither a judge’s recollection nor his subsequent testimony can provide the basis of a nunc pro tunc order. (Gagliano, 144 Ill. App. 3d at 857-58, 494 N.E.2d at 1185; Beck, 144 Ill. 2d at 239, 579 N.E.2d at 827; People v. Tackett (1985), 130 Ill. App. 3d 347, 352-53, 474 N.E.2d 451, 454-55, citing People v. Stiger (1979), 69 Ill. App. 3d 188, 387 N.E.2d 55; see also Frank v. Village of Barrington Hills (1982), 106 Ill. App. 3d 747, 436 N.E.2d 276 (any basis for change made to the record must come from minutes, notes, or other documents; the amendment cannot rest upon the recollection of the judge); Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 348 N.E.2d 457 (correction or amendment of the record should not rely solely on the judge’s “clear memory”).) Similarly, we hold that a trial judge’s “true intent” cannot serve as the basis for a nunc pro tunc order. Instead, the record must clearly contain evidence of the judge’s intent, such as some reference during the hearing on the matter to forfeit defendant’s bond. Under those circumstances, an amendment to an otherwise silent docket entry regarding a bond forfeiture might be appropriate to make the docket entry reflect the judge’s actual remarks.

The State also argues that because section 110—7(g) of the Code of Criminal Procedure of 1963 (Procedural Code) (Ill. Rev. Stat. 1989, ch. 38, par. 110—7(g)) requires the trial court to forfeit a defendant’s bail when he does not comply with conditions of his bail bond, the trial court here must have intended to comply with this statute by ordering a forfeiture of defendant’s bond, not merely a revocation. We disagree. First, even though the statute requires the court to forfeit defendant’s bail, the short answer to the State’s argument is that here the court did not do so. Second, section 110—7(g) of the Procedural Code is not self-executing; it requires the court to take certain action and does not deem that action automatically taken.

In conclusion, we emphasize that all participants in sentencing proceedings must concern themselves with the details of those proceedings to the same extent as they must during all prior proceedings in a criminal case. (See People v. Sims (1992), 233 Ill. App. 3d 471, 475, 599 N.E.2d 137, 140 (Knecht, J., specially concurring) (“some prosecutors and defense counsel pay too little attention to sentencing hearings and the consequences of those proceedings”).) Had the participants here given the serious underlying case (aggravated criminal sexual assault and home invasion) the attention it was due at the sentencing hearing, we would not need to reverse this conviction for technical reasons having nothing to do with any real procedural protections afforded to defendants in criminal cases. We also note that because the prosecutor in this case failed to seek the forfeiture of defendant’s $5,000 cash bond, he thereby ignored a sum that could have been obtained to help reduce the burden on the taxpayers of Logan County of supporting the local criminal justice system. In order to obtain defendant’s cash bond, the prosecutor would of necessity have complied with section 32 — 10 of the Code— which requires such a forfeiture as a necessary condition in order to bring a bond jumping charge — thereby avoiding any procedural problems in prosecuting defendant for jumping bond once he was apprehended.

III. Conclusion

For the reasons stated, we reverse the judgment of the circuit court.

Reversed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. SAMS, Defendant-Appellant.
    Fourth District
    No. 4—92—0196
    Opinion filed December 30, 1992.
    Rehearing denied January 11,1993.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, David Sams was convicted of theft over $100,000 (Ill. Rev. Stat. 1991, ch. 38, pars. 16—1(a)(1), (b)(6)), sentenced to 13 years’ imprisonment, and ordered to pay restitution of $1.7 million. On appeal, defendant contends the court (1) abused its discretion in sentencing him to 13 years’ imprisonment; (2) erred in ordering him to pay restitution because theft is not a crime of violence and, in the alternative, (3) abused its discretion in ordering him to pay restitution within five years, while sentencing him to 13 years’ imprisonment.

Defendant was employed for 16 years as a scale house operator at Mervis Industries, a scrap metal and steel business in Danville, Illinois. He was responsible for using an electronic scale to weigh incoming shipments and was given $11,000 each day to pay vendors who sold scrap metal to the company. At some point, defendant learned to manipulate the electronic scale to produce a ticket without any vehicle crossing it. He would then sign the name of either an actual or fictitious vendor and pocket the cash. After defendant’s arrest, a complete audit going back to 1985 revealed falsely generated tickets totaling in excess of $1,780,000.

Evidence revealed that defendant had used the money to supplement his wholesale foods business. Among other things, he had purchased five refrigeration trucks in which to haul perishable food. His employer filed suit against him and filed orders of attachment for his assets. A fleet of 27 vehicles was seized. Defendant’s personal and financial records revealed that he had purchased a satellite dish and installed a swimming pool for his home. He also purchased several mobile telephones, seven computers, and paid for trips that he and his wife, and other couples, took to Florida and Hawaii.

During this time defendant failed to pay his bills, forcing his creditors to recoup their losses by taking possession of any available collateral. He had two mortgages on his home and a $50,000 loan for his wholesale foods business; he had issued bad checks to his business creditors, and had not paid his quarterly taxes. Defendant maintained that 90% of the funds stolen from his employer were siphoned into his business, with the other 10% used for personal items. However, an audit of his wholesale foods business revealed that no more than $500,000 of the $1.7 million he stole could be traced to assets of the business. The First National Bank of Danville had taken possession of the business assets as part of its security agreement with defendant.

Mervis Industries obtained a judgment against defendant for damages in the amount of $1,785,000, plus interest, and punitive damages of $3,570,000, but was unable to enforce the judgment because defendant’s discoverable assets were already subject to liens by other creditors. In the course of negotiations with defendant, Mervis Industries offered to speak on defendant’s behalf at sentencing and refrain from blacklisting him with other employers if he would produce the remainder of the stolen funds and reveal whether anyone else was involved in the scheme. Defendant responded that he needed time to think about this proposal. Later, he and his counsel stated that no one else was involved and he was unwilling to disclose the whereabouts of the rest of the money.

Defendant argues that the trial court abused its discretion in sentencing him to 13 years’ imprisonment. Defendant contends the court never adequately considered a number of mitigating factors such as (1) his expression of remorse; (2) his lack of prior record; (3) his cooperation with authorities by admitting the theft; (4) the fact that his conduct neither caused nor threatened violence; (5) a lengthy prison sentence would be counterproductive to his rehabilitation and would impose a financial hardship upon his wife and children; (6) he is an excellent candidate for probation; and (7) his character and attitude indicate he is unlikely to commit another crime. Defendant suggests that under these circumstances, a four-year sentence would be appropriate. Furthermore, assuming defendant receives good-time credit, a four-year sentence would allow for a reasonable restitution order within the statutory five-year time limit. See Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(f).

The trial court’s sentencing decision is entitled to great deference and will not be disturbed on review unless it represents an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) The offense was a Class 1 felony, which provides for a sentence of not less than 4 years or more than 15 years’ imprisonment. (Ill. Rev. Stat. 1991, ch. 38, pars. 16—1(b)(6), 1005—8—1(a)(4).) A defendant’s status as a first offender does not require a court to impose a minimum term of imprisonment. (People v. Lafferty (1990), 207 Ill. App. 3d 136, 139, 565 N.E.2d 279, 281.) The court noted the premeditated nature of the crime and the fact that the scheme was carried out over a number of years. The crime was extraordinary, not only because of the enormous amount of funds stolen but also because it was carried out on an almost daily basis over a number of years. The maximum sentence was not given. We find no abuse of discretion in the trial court’s sentencing decision.

Next, defendant contends the trial court erred in ordering him to pay $1.7 million in restitution for his offense of theft. Section 5—5—6(b) of the Unified Code of Corrections (Code) provides that “the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(b).) The definition of “victim” in section 5—1—22 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005—1—22) incorporates the definition contained in section 3(a) of the Bill of Rights For Victims and Witnesses of Violent Crime Act (Act), which states, in relevant part:

“ ‘Victim’ means (1) a person physically injured in this State as a result of a violent crime perpetrated or attempted against that person or (2) a person who suffers injury to or loss of property as a result of a violent crime perpetrated or attempted against that person or *** (4) any person against whom a violent crime has been committed ***.” Ill. Rev. Stat. 1991, ch. 38, par. 1403(a).

As his theft from Mervis Industries was not a crime of violence, defendant argues the trial court erred in ordering restitution. The State counters that this claim has been waived by defendant’s suggestion at sentencing hearing that restitution was a proper form of punishment. Citing People v. Early (1987), 158 Ill. App. 3d 232, 511 N.E.2d 847, and People v. Eades (1984), 123 Ill. App. 3d 113, 462 N.E.2d 819, the State argues that defendant should not be permitted to complain of an error in which he acquiesced or which he invited. In both these cases, defendant had agreed with the State on the actual amount of restitution that was eventually ordered. In the case at hand, defense counsel, while suggesting some amount of restitution, explicitly questioned the amount of money claimed to have been stolen. We find no waiver of this issue.

Defendant cites decisions of the Second and Fifth District Appellate Courts for the principle that restitution is only available for victims of violent crimes. (People v. Stocke (1991), 212 Ill. App. 3d 547, 571 N.E.2d 192; In re D.R. (1991), 219 Ill. App. 3d 13, 579 N.E.2d 409.) Our supreme court has declined to accept this limitation on a court’s authority to order restitution. People v. Nasser (1991), 223 Ill. App. 3d 400, 584 N.E.2d 1010, aff’d sub nom. People v. Lowe (1992), 153 Ill. 2d 195, 200.

Finally, defendant claims ordering that restitution of $1.7 million be paid within the maximum five-year period constitutes an abuse of discretion where he was sentenced to 13 years’ imprisonment. Section 5—5—6(f) of the Code requires the sentencing court to fix a period of time “not in excess of 5 years within which payment of restitution is to be paid in full.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(f).) Although it is not necessary for a trial court to determine a defendant’s ability to pay restitution, the trial court must consider the defendant’s ability to pay when making a determination of the method and time of payment. (People v. Fuzz (1991), 218 Ill. App. 3d 418, 422, 578 N.E.2d 294, 297.) Defendant’s home and property have been lost to foreclosure, and he owns no vehicle. At the time of his arrest, he was earning only $22,000 per year. Assuming that he obtains a similar position, and assuming he is not in jail during the entire five-year period, defendant argues it would still be impossible to pay $1.7 million in restitution. Defendant cites People v. Knowles (1980), 92 Ill. App. 3d 537, 414 N.E.2d 1322, for the principle that the purpose of restitution is frustrated when the restitution order imposes an impossible financial burden.

Substantial evidence was heard that defendant had stolen funds in an amount exceeding $1.7 million. Yet, only $500,000 of this amount is traceable to investment in his wholesale food business. Defendant has not accounted for the remaining balance of $1.2 million. Perhaps most significant is the fact that defendant’s employer offered to speak on his behalf at sentencing if he would provide information regarding the whereabouts of the remaining money. This offer was declined. We find no abuse of discretion in the order for restitution.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re ESTATE OF RAY A. MILLER, Deceased (Ruby Black et al., Petitioners-Appellants, v. Frances Schulte, Intervenor-Appellee).
    Second District
    No. 2—92—0051
    Opinion filed December 17, 1992.
    Alan W. Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellants.
    Donald Q. Manning and George D. Bates, both of Clark, McGreevy & Johnson, P.C., of Rockford, and Bruce E. Keller, of Keller & Latheler & Associates, of Dixon, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Petitioners, Ruby Black, Fern Greenfield, Robert Miller, George L. Miller, Marian Reese, Earl Miller, June Hinrichs, and Carol Troxell, the brothers and sisters of the testator, Ray A. Miller, appeal the judgment of the circuit court which dismissed their petition to reopen the testator’s estate. The essential issue on appeal is whether petitioners were “legatees” under the testator’s will so that they were entitled to notice that the will had been admitted to probate.

Ray A. Miller died on October 27, 1988, survived by his widow, Darlene. On December 16, 1988, Darlene filed a petition seeking admission of the testator’s will into probate and the issuance to her of letters testamentary. The testator bequeathed all of his personal effects to Darlene. The residue of the estate was provided for as follows:

“I give the residue of my estate to my wife, or if she does not survive me, I give the residue of my estate as follows:
1. 5% to First Presbyterian Church ***.
2. 5% to Immanuel Lutheran Church ***.
3. 45% equally to such of [petitioners] who survive me.”

The testator named Darlene as the executrix of the will. The court admitted the will to probate and, on the same date, appointed Darlene the executrix and issued the letters testamentary to her. On December 30, Darlene’s counsel filed a proof of mailing and attachments as required by section 6—10(a) of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1991, ch. 110½, par. 6—10(a)). That notice listed Darlene as the only heir or legatee of the estate. Petitioners were not sent notice of the proceedings.

The court closed the estate in July 1990. A few weeks later, Darlene died. On February 28, 1991, petitioners filed their petition to reopen the estate, alleging that they were legatees under the will and, therefore, were entitled to notice. Frances Schulte, the executor of Darlene’s estate, filed a petition to intervene, which the court granted. Schulte moved to strike the petition to reopen the estate on the basis that petitioners were neither heirs nor legatees and were not entitled to notice.

The trial court found that petitioners were designated as “contingent legatees” in the will and, “as soon as the testator died leaving Darlene E. Miller as his survivor, the contingent gift to the Petitioners failed.” The court reasoned that since the Probate Act’s notice requirement contemplates those persons who have an interest in whether the will is to be admitted to probate, and petitioners could not take under the will and were not heirs, petitioners were not entitled to notice. The court therefore granted the motion to strike the petition.

Petitioners moved to reconsider the order striking their petition. The court denied the motion to reconsider, and petitioners timely appealed.

As a preliminary matter, we note that petitioners’ pleading was dismissed pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—615). When reviewing the dismissal of such a pleading, the court must take as true all well-pleaded facts and reasonable inferences drawn from those facts. (Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 172.) A trial court should dismiss a cause on the pleadings only if it is clear that no set of facts can be proven which will entitle the petitioner to recover. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504.

Petitioners contend that the trial court erred in finding that they were not “omitted legatees” of the will. Petitioners rely primarily on section 6—10(a) of the Probate Act, which provides that the executor must give notice to the heirs and legatees within 14 days after the will was admitted to probate. (Ill. Rev. Stat. 1991, ch. 110½, par. 6—10(a).) According to petitioners, the trial court could not look outside of the face of the will to determine the occurrence or nonoccurrence of the contingency to the bequest. Petitioners rely on Mosser v. Flake (1913), 258 Ill. 233, and Edgar County Children’s Home v. Beltranena (1949), 402 Ill. 385, in support of their position that, as named legatees, they were entitled to notice and the lack, of notice to petitioners deprived the court of jurisdiction to probate the will.

Edgar County is inapposite. The issue in that case was whether a devise was a life estate or was in fee simple. (Edgar County, 402 Ill. at 386-87.) The bequest to Darlene clearly is not a life estate. Petitioners’ reliance on Mosser similarly is misplaced. The documents at issue there consisted of an original will and codicil and two additional codicils which purported to supersede the will and first codicil. The first codicil included a bequest to Hedding College. The second codicil revoked the bequest and the third codicil failed to mention the college. The trustees of the college claimed that the court lacked jurisdiction to admit the will and codicils to probate because the college never received notice. The supreme court agreed that the trustees were entitled to notice because they were interested parties. The trustees “had a direct interest in having the original will and first codicil established and admitted to probate[,] *** and they were interested in the question of the validity of the later codicils.” (Mosser, 258 Ill. at 236-37.) The court ruled that whether a party was entitled to notice was to be determined from the instruments when presented for probate. 258 Ill. at 237.

Petitioners were not “interested” in having the will admitted to probate or in not having the will admitted to probate because, in either scenario, they would receive nothing.

Schulte argues that the facts of People ex rel. Dunham v. McCormick (1903), 201 Ill. 310, are on point. The bequest in Dunham is similar to the bequest at issue here. In Dunham, the testatrix’s will provided that certain parcels of land would be sold and the proceeds from the sale would “go to James M. Leeper *** if he is living, if he is dead it goes to improvement of the Waynesville cemetery.” (Dunham, 201 Ill. at 312.) The trustees of the Waynesville cemetery sought to have the testatrix’s will admitted to probate. In determining whether the trustees had the right to have a mandamus issue, the supreme court had to determine whether the trustees had any interest in the will. (Dunham, 201 Ill. at 313.) The court explained:

“The petition contains a copy of the alleged will, but that instrument does not show the existence of any interest in the petitioners. *** The bequest for the improvement of the cemetery, generally, was conditioned upon the death of James M. Leeper. The interest of petitioners was not contingent upon some future event, but was limited upon an event which had already occurred when the instrument was offered for probate, so that if James M. Leeper was then living the petitioners had no interest at all.” (201 Ill. at 313.)

Although the supreme court was discussing a mandamus petition, the analysis is instructive. Petitioners stand on the same footing as the Waynesville cemetery trustees. Petitioners admitted that Darlene survived the testator. Consequently, the gift failed, and petitioners had no interest in the will.

Petitioners argue, however, that according to Chandler v. Fisher (1918), 285 Ill. 57, contingent legatees are entitled to notice. We decline to read Chandler so broadly. The contingency in Chandler was a future event involving a 20-year trust founded at the testator’s death, which would be divided among the testator’s children and, if they were deceased, the children of the deceased children. Thus, the grandchildren’s contingency was the death of a parent within 20 years. (Chandler, 285 Ill. at 64-65.) Such is not the type of contingency here. In addition, Chandler does not support petitioners’ contention because the supreme court interpreted the words “any person interested” to “only include persons who have a direct, existing, pecuniary interest at the time of the probate of the will.” Chandler, 285 Ill. at 65.

A will should be construed to effect the intent of the testator, and when the will is clear and unambiguous, as here, it will be interpreted according to those terms. (In re Estate of Miller (1992), 230 Ill. App. 3d 141, 145, 148.) It was clear from the face of the will that petitioners were not “legatees” but were contingent residuary beneficiaries. (See Landmark Trust Co. v. Aitken (1992), 224 Ill. App. 3d 843, 856.) The residuary clause at issue was designed to dispose of the entire estate by will and to leave no part to pass by intestacy. (In re Estate of Smith (1992), 233 Ill. App. 3d 599, 604.) Darlene was a contingent legatee. Her contingency was that she had to survive the testator for her legacy of the residue of the estate to vest. (See Aurora National Bank v. Old Second National Bank (1978), 59 Ill. App. 3d 384, 390.) “ ‘At the moment of [the testator’s] death the rights of his heirs and devisees to succeed to his estate are fixed and vested.’ ” Scott v. Scott (1989), 179 Ill. App. 3d 489, 492, quoting Havill v. Havill (1928), 332 Ill. 11, 15.

When the testator died leaving Darlene as his survivor, the contingency terminated and her legacy vested. By filing an affidavit of heirship, Darlene made a prima facie showing on the face of the documents that her legacy vested. Petitioners were no longer interested parties entitled to notice.

We conclude that the trial court did not err in dismissing the petition because petitioners were not heirs of the testator, nor were they legatees because Darlene satisfied the contingency, thereby cutting off petitioners’ rights under the will.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE GEIGER

text:
    WINNING MOVES, INC., Plaintiff-Appellant, v. HI! BABY, INC., Defendant-Appellee (Vicki Nichols, Contemnor-Appellant).
    Second District
    No. 2—92—0075
    Opinion filed December 15, 1992.

      Thomas D. Chase, of Elgin, for appellants.
    Michael P. Herrmann, of Nolan & Herrmann, of De Kalb, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The appellants, Winning Moves, Inc. (Winning Moves), and Vicki Nichols (Nichols), are appealing from a ruling which vacated the service of process on an agent of Hi! Baby, Inc., and which found Nichols in contempt of court. The issues on appeal are (1) whether there was clear and convincing evidence that proper service was not made by Nichols; (2) whether the court improperly considered ex parte testimony in determining whether service was made; and (3) whether Nichols was denied due process in the proceedings which led to her direct criminal contempt conviction.

On July 3, 1991, Winning Moves filed a small claims complaint against Hi! Baby, Inc., seeking judgment for $828.37 for the nonpayment of merchandise. On August 7, 1991, the court ordered a summons to be served on Hi! Baby, Inc. On August 13, 1991, the summons was marked returned, allegedly served by Nichols upon May Riad-Sakr (Sakr), an agent of Hi! Baby, Inc. On September 22, 1991, Sakr was allegedly served again by Nichols, with a citation to discover assets and an order to appear in court on October 16, 1991. Sakr failed to appear in court on October 16, and the court issued a rule to show cause against Sakr for her failure to appear. On October 21, 1991, according to Nichols’ affidavit of return, she served Sakr with a rule to show cause and a copy of the complaint. On November 20, 1991, upon Sakr’s failure to appear pursuant to the rule to show cause, the court entered a writ for body attachment against Sakr and set bond.

On December 9, 1991, the court reduced Sakr’s bond to a recognizance bond and set the matter over to December 18, 1991. Also on December 9, the court heard Sakr’s testimony that she was not served with summons by Nichols. Based upon those statements, the court issued a rule to show cause against Nichols, the process server, “to show cause why she claims service of various documents upon” Sakr. The rule further ordered that the attorney for the plaintiff, Thomas Chase, produce Nichols in court on December 18,1991.

On December 18, 1991, the rule to show cause against Nichols came on for hearing before the Honorable John W. Countryman. At that hearing, Nichols testified that she was a process server and that she was given various documents to serve on Sakr. Nichols stated that on August 13, 1991, at 2 p.m., she served Sakr with a summons at Sakr’s residence. She further stated that on September 22, 1991, at 9 p.m., she served a citation to discover assets at Sakr’s residence. Nichols also testified that on October 21, at 10:30 a.m., she served Sakr at her home with a rule to show cause. Nichols identified Sakr in court as the woman whom she served on all three of those occasions. On cross-examination, Nichols testified that she made an independent judgment of Sakr’s appearance every time she served her with process and that her affidavits of return reflected those observations.

On the three return affidavits, Nichols described Sakr as 5 feet 7 inches tall, weighing 145 pounds, approximately 31 years old, and with blond hair. On cross-examination, Nichols estimated that Sakr was 5 feet 5 inches or 5 feet 5½ inches tall, 135 pounds, approximately 31 years old, and had dirty blond hair.

Sakr testified that she was 27 years old, 5 feet 3 inches tall, and 110 pounds. She testified that she was served with only one document by Nichols, a notice of a motion to change the name of the complaint from “Hi! Baby” to “Hi! Baby, Inc.,” and that there was no complaint attached to it. Sakr further testified that she was not served with any other summons or complaints by Nichols. She testified that on September 22, 1991, she was entertaining guests at her home and was not served with papers on that date. Sakr also testified that on October 21, 1991, at 10:45 a.m., she was at work at Northern Illinois University and was not served with a rule to show cause on that date.

In its ruling, the court noted that it originally issued the rule to show cause against Nichols because there were apparent discrepancies in Nichols’ affidavits of return. The court explained that Nichols’ estimate of Sakr’s age was a fairly easy mistake in this case and that it was reasonable to consider Sakr’s hair as being dirty blond, but “to say that she’s 5’7 when she’s *** 5’3” *** that’s pretty hard to misconstrue somebody [sic] by four inches.” The court also expressed doubt concerning Nichols’ estimate of Sakr’s weight at 145 pounds, observing that “[s]he’s a bit of a thing.” The court additionally noted that “the deputy sheriff who brought her over said to me ‘there’s no way, Judge, that she could qualify at 145 pounds.’ ” The judge ordered Sakr’s service of process vacated and held Nichols in contempt of court, finding that she lied on her affidavits relating to service of process on Sakr. The judge barred Nichols from serving process in all future cases that appear in front of him.

The appellants first argue that the trial court erred because it failed to apply the “clear and convincing” evidence standard in determining the validity of Sakr’s service of process, and thereby arrived at a decision against the manifest weight of the evidence. The appellants failed to cite any language of the court, nor were we able to find any indication in the record, which demonstrates that the court used the wrong evidentiary standard in determining the validity of Sakr’s service of process. We will therefore assume that the court used the correct evidentiary standard, and we narrow this issue to whether there was clear and convincing evidence to support the court’s ruling on the validity of Sakr’s service of process. See Mid-America Federal Savings & Loan Association v. Kosiewicz (1988), 170 Ill. App. 3d 316, 324.

The object of service is to notify a party of pending litigation and thus secure his presence. (Mid-America, 170 Ill. App. 3d at 324.) In the case of personal service, the return of summons is prima facie proof of proper service which can only be overcome by clear and convincing evidence, and the court is required to indulge in every reasonable presumption in favor of the return. (170 Ill. App. 3d at 324.) Uncorroborated testimony of the party upon whom service purports to have been made is not considered clear and convincing evidence. Isaacs v. The Shoreland Hotel (1963), 40 Ill. App. 2d 108, 111.

It is true that a return of service cannot be set aside merely upon the uncorroborated testimony of the party upon whom service was made. (Isaacs, 40 Ill. App. 2d at 111.) However, in the instant case the court was in a privileged position. It not only could hear the testimony, but it also could view Sakr and compare Nichols’ earlier description in her affidavits against its own impressions of Sakr’s appearance.

It is the proper function of the judge to determine the credibility of the witnesses. (Ford v. Continental Illinois National Bank & Trust Co. (1974), 18 Ill. App. 3d 166, 171.) We will not substitute ourselves for the trial judge in determining whether Sakr’s appearance in court adequately corroborated her claim regarding her lack of service given the discrepancies in Sakr’s affidavits. (18 Ill. App. 3d at 171.) We find sufficient evidence to support the court’s ruling on the validity of Sakr’s service of process.

The appellants also allege that the court improperly considered ex parte testimony of the deputy sheriff in reaching its ruling and argue that the court should be reversed on this basis. We note that the judge referred to the deputy sheriff’s observation that “there’s no way *** [Sakr] could qualify at 145 pounds.”

Considering the record as a whole, we do not find the judge’s remark about the deputy sheriff provides a sufficient basis to reverse the court’s ruling on this issue. This case is distinct from Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 957-58, to which the appellants cite. There, the court specifically stated it “[took] into account” evidence outside of the record. Here, in contrast, the court had an opportunity to view Sakr’s appearance in the court. Additionally, it heard Sakr’s own testimony that she weighed only 110 pounds.

The appellants next argue that Nichols was denied due process. They assert, in part, that no petition for a rule to show cause was filed against her, that she was entitled to an opportunity to interpose an answer, and that she was entitled to receive a full hearing on her contempt charge.

We first note that although the court found Nichols to be in indirect criminal contempt, we find that the record more aptly states a charge of direct criminal contempt. 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. (See In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 44.) Neither of these attributes is present in the instant case.

In contrast to the coercive purpose of civil contempt sanctions, the reasons for imposing punishment for criminal contempt are much the same as the rationale for punishing other types of misdemeanor criminal conduct: “retribution, deterrence, and vindication of the norms of socially acceptable conduct.” (Betts, 200 Ill. App. 3d at 44.) Criminal contempt punishes past acts and may address disrespectful, disruptive, deceitful and disobedient acts which affect judicial proceedings. (Betts, 200 Ill. App. 3d at 45.) We find that the contempt in the instant case was criminal contempt; the court’s ruling was intended to punish Nichols’ past act of allegedly knowingly filing false affidavits of service and to deter her from doing so in the future. See People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 60-62; In re Estate of Melody (1969), 42 Ill. 2d 451, 452-53.

Contempt is also categorized by whether it is direct or indirect. Direct contempt is contemptuous conduct which occurs in the presence of a judge. (Betts, 200 Ill. App. 3d at 47.) There is also a subcategory of direct contempt consisting of contemptuous acts not personally seen by a judge, but which take place in an integral or constituent part of the court; that subcategory includes, for instance, knowingly filing false documents with the clerk of the court that are calculated to “hinder or obstruct a court in its administration of justice.” (See Hogan, 67 Ill. 2d at 59-60.) These acts are deemed to have occurred within the constructive presence of the court. (Betts, 200 Ill. App. 3d at 48.) Nichols’ alleged filing of false affidavits falls under this subcategory of direct contempt.

Generally, a finding of direct criminal contempt may be made in a summary manner, and the contemnor is not entitled to the procedural rights which are ordinarily mandatory in criminal proceedings. (See Betts, 200 Ill. App. 3d at 49-52.) However, when the punishment for a particular course of criminally contemptuous conduct exceeds the parameters of punishments normally imposed for misdemeanors, and the punishments are not imposed immediately after the occurrence of the contemptuous conduct, the contemnor is entitled to the procedural rights that conform to the constitutionally mandated procedures required in other criminal proceedings. (See Betts, 200 Ill. App. 3d at 48-50, 58.) These rights include notice, a reasonable opportunity to defend, the assistance of counsel, the right to be proven guilty beyond a reasonable doubt and the right not to be compelled to testify against oneself. (See Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 209-10.) The traditional test for determining whether a charged offense is a misdemeanor is whether the penalties exceed $500 or six months’ imprisonment, although the test is subject to some judicial discretion. (See Betts, 200 Ill. App. 3d at 50.) In the instant case, the punishment imposed substantially deprives Nichols of her means of livelihood as a process server. We, therefore, find that her punishment was greater than that normally imposed for a misdemeanor and raised an entitlement to constitutional protection required in other criminal proceedings.

The record shows that Nichols’ notice consisted merely of a rule to show cause why she claimed “service of various documents upon Sakr.” There was no mention or notice in the rule concerning a contempt proceeding. (See In re Marriage of Carpel (1992), 232 Ill. App. 3d 806, 823.) Furthermore, Nichols was called to testify before the court in violation of her right not to incriminate herself, and she was not given the opportunity to interpose an answer to the charge of contempt. (See Marcisz, 65 Ill. 2d at 209-10.) While we make no judgment as to whether the punishment imposed by the court here was inappropriate, we find that the defendant was denied her constitutional rights. See People v. Marcisz (1975), 32 Ill. App. 3d 467, 473.

We also will not penalize Nichols for failing to object to the lack of due process earlier in the proceedings. This is not an instance where it would be appropriate to find waiver of her due process rights because they did not attach to the contempt proceeding until the judge imposed a sentence with a penalty greater than that generally imposed for a misdemeanor offense. (See Marcisz, 65 Ill. 2d at 209-210.) A waiver of constitutional rights is normally not upheld in the absence of any indication that the defendant was aware of the rights he was forfeiting. (See People v. Lester (1988), 165 Ill. App. 3d 1056, 1058.) Here, at the time of the contempt proceedings, Nichols could not make a knowing waiver of her due process rights. She had not yet been given notice that those rights had attached.

Alternatively, we note also that the above-required procedural rights also attach to proceedings for indirect criminal contempt and should have been granted to Nichols on that basis as well. See Betts, 200 Ill. App. 3d at 58.

For the above reasons, we affirm the judgment as it relates to the vacatur of Sakr’s service of process, and we reverse the judgment of the circuit court of De Kalb County as it relates to Nichols’ contempt and remand for a new hearing. In remanding the case for further proceedings we observe that, given the sufficiency of proof presented at the trial, we find no double jeopardy barrier to retrial. See People v. Taylor (1979), 76 Ill. 2d 289.

Affirmed in part; reversed and remanded in part.

UNVERZAGT and BOWMAN, JJ., concur.