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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK URIOSTE, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0591
    Opinion filed October 11, 1990.

      Joseph R. Brown, Jr., of Lucco & Brown Law Offices, of Edwardsville, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a bench trial in the circuit court of Madison County, defendant, Mark Urioste, was found guilty but mentally ill of murder, home invasion, armed violence, and attempted aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(3), 12 — ll(aXl), 33A — 2, 8 — 4(a), 12 — 14(aXl).) Defendant was sentenced to concurrent terms of imprisonment of 40 years for murder, 20 years each for home invasion and armed violence, and 10 years for attempted aggravated criminal sexual assault. From these convictions and sentences defendant appeals.

The following issues are presented for review: (1) whether defendant was proven guilty of the offenses beyond a reasonable doubt; (2) whether defendant was proven sane beyond a reasonable doubt; (3) whether the not guilty by reason of insanity/guilty but mentally ill statutory schemes are reconcilable in defendant’s case; (4) whether the trial court erred in admitting certain statements made by defendant; and (5) whether the trial court erred in sentencing defendant to a 40-year term of imprisonment for murder. We affirm.

Defendant contends that the evidence presented at trial was not sufficient to prove his guilt of the offenses beyond a reasonable doubt. When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 (Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Rather, upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The relevant question then becomes whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (106 Ill. 2d at 261, 478 N.E.2d at 277.) In view of these principles, we conclude that there is ample evidence to support the verdict.

The following evidence, inter alia, was presented to the trial court as fact finder. Joyce Rodgers testified that on August 8, 1986, she was living in Madison, Illinois, with her daughters Renee, age 16, and Rebecca, age 20, and Rebecca’s two-year-old son. Early that morning Mrs. Rodgers was awakened by a falling sound on the second floor of her home. When she went upstairs, Rebecca’s son came running to Mrs. Rodgers at the bedroom door. She set him behind her on the steps and looked into the room, which was lit from outside streetlights. Mrs. Rodgers saw defendant, whom she had known his entire life, on top of her daughter attempting to have sex with her. She told him to get off of Rebecca, which he did, coming towards Mrs. Rodgers with a knife until they were face to face. Mrs. Rodgers stated that defendant had blood on his hands and arms and that he was pulling his pants up as he got off the floor and approached her. Defendant said, “Let me out the front door, Mom,” the name he had called Mrs. Rodgers as a youth. Mrs. Rodgers stepped into the bedroom with her grandson, allowing defendant down the front stairs.

Although defendant stumbled on the last four stairs, he had no difficulty in opening the deadbolt lock in order to leave through the front door. Mrs. Rodgers stated that she had previously had problems with defendant coming into her yard, bothering her daughters, masturbating in front of the -window, and walking into her home uninvited, “like he was lost.”

Renee Rodgers testified that she was awakened by a noise in the house during the early morning hours of August 8, 1986. Ms. Rodgers stated that her bedroom was in the front of the house near the hallway and that she saw someone who looked like defendant fall down the stairs and run toward the door. Defendant had been in the Rodgers’ home a year or two earlier when Renee’s bedroom was upstairs. Ms. Rodgers testified that, several days earlier, she had seen defendant attempting to crawl through her bedroom window. She ran from the house and asked her neighbor, Kenneth Click, for help. After that, a lock was placed on her window.

Click, who had known defendant for approximately eight years, testified that Renee Rodgers had summoned him to her home a day or two before the stabbing because defendant was in the house. Click went through the Rodgers’ residence and saw defendant in their back yard. When Click asked defendant what he was doing, defendant at first gave no reply and then said that he was going home. About 15 to 20 minutes later, Click saw defendant attempting to climb into the Rodgers’ house through Renee’s bedroom window. Click grabbed defendant and again asked him what he was doing. Defendant responded that he needed to use the restroom. Click advised defendant to go home and use his own restroom.

Officer Steve Skoklo of the Madison police department stated that he was dispatched to the Rodgers’ residence, arriving at approximately 3:52 a.m. on August 8, 1986. Skoklo and Officer Mooshegian were informed by Joyce Rodgers that her daughter had been stabbed. Skoklo testified that upon proceeding to the upstairs bedroom they discovered the victim lying on the floor in a pool of blood, her panties down around her knees. Skoklo later examined the premises for signs of forced entry and discovered that the screen had been pulled away from the bottom of the bathroom window. A bottle of baby powder found outside the bathroom window was identified by Mrs. Rodgers as having been inside the residence on the window ledge.

Robert Allen Hollenbeck, an emergency medical technician (EMT)firefighter for the City of Madison, stated that he arrived at the Rodgers’ residence approximately 3:55 a.m. with EMT-firefighter Rick Robbins and firefighter Donald Whitecotton. The three found a stab wound in the center of the victim’s chest that had caused profuse bleeding. Her panties were down between her thighs and her knees. Robbins found a very faint, weak pulse. A second stab wound, in the victim’s back, was discovered upon examination at the hospital.

Deputy Gary Marsala of the Madison County sheriff's department arrived at defendant’s residence in the early morning hours of August 8, 1986. Defendant’s father, Felix Urioste, admitted Marsala and upon his request led Marsala to defendant’s room. Marsala turned on the lights and told defendant, who was lying in bed with the sheet pulled up to his chin, that a young lady had been stabbed and that defendant was accused. Marsala read defendant his Miranda rights, and defendant indicated that he understood the rights but stated that he didn’t do anything, that he did not know anything about the incident. Marsala noticed that defendant had what appeared to be fresh blood around his neck and on his hands. Upon confronting defendant with this fact, defendant reopened a closed cut on his thumb and began to smear his own blood onto his chest. Marsala told defendant that it was “a little late for that.” Marsala, who had known the defendant for over 15 years, stated that defendant was very cooperative and did not appear disturbed or incoherent.

Around 8 p.m. that evening, Deputy Marsala transported defendant from the Madison city jail to the county jail. En route, they passed Officer Mooshegian and defendant said, “He’s a cop and I’m a killer,” and began talking about the incident. Defendant said that he was sorry for what had happened, that he wasn’t there to “get” the victim but was there for Renee and that the two must have switched rooms during the night. Defendant told Marsala that the victim had resisted him saying, “Go ahead stab me, go ahead, make my day.” “So I made her day,” defendant replied in a laughing tone. Defendant also said he was sorry that the victim’s child would be without a mother and that if he won his lawsuit he would give the child a sum of money each month until the child reached 18 years of age. Marsala testified, “[defendant] was carrying on about why he had done it and what events in his life had lead him up to it, and he went into this spiel about drugs, sex and rock ’n roll, and then he said that *** he could live without the drugs or the sex but he couldn’t give up rock 'n roll.” Although Marsala characterized these last statements made by defendant as “bizarre,” he stated that defendant was serious when he made them.

Marsala testified that he told defendant his Miranda rights while transporting him. However, no mention of this was made in Marsala’s report, and he acknowledged that this failure was an oversight. Marsala denied coercing defendant and said that the defendant was “rambling,” but recognized Marsala and was cooperative.

Deputy Mike Staicoff of the Madison County sheriff’s department testified that he accompanied Deputy Marsala to the Urioste residence that morning. Staicoff noticed that defendant, who was sitting in his bedroom with his father and Marsala, had bloodstains on his chest and upper body.

Officer David Mooshegian of the Madison police department testified that upon arriving at the Urioste home he observed that defendant was seated in the kitchen, shirtless, and that on his chest was a fresh, red, liquidy substance. Defendant’s actions did not seem bizarre or disturbed to Mooshegian, who had known defendant for approximately 15 years and who transported defendant to the Madison city jail. Upon arrival, defendant gave booking information correctly, except for the numbers of his address.

Detective Paul Bargiel of the Madison police department testified that he recovered a knife under a pile of brush in a vacant lot just north of the victim’s home. The weeds in the lot were trampled down, making a trail from the edge of the Rodgers’ yard and then to the alley which ran between the Rodgers’ and Urioste’s residences.

Bargiel further testified that he observed blood on the chest and hands of defendant at the police station. When defendant saw that Bargiel intended to photograph this condition, he tried to remove the blood by licking his fingers and wiping it off. Prior to questioning defendant, Bargiel advised him of his Miranda rights and defendant indicated that he understood, mentioning that he had been previously advised of his rights and that he knew about his rights from “seeing it on TV.” Upon being questioned regarding the incident, defendant stated: “I can’t help that somebody who look [sic] like me goes into people’s houses and kills people.”

During Bargiel’s conversation with defendant, he appeared coherent and was cooperative, although he did not want to be photographed. Bargiel stated that defendant recognized him and called him by name without Bargiel having to introduce himself. There was nothing about the defendant’s demeanor that suggested he was disturbed or did not understand where he was.

Bargiel identified photographs he had taken at the scene and at the Urioste residence, including People’s exhibits 34 and 35, photographs of a trash container and a gate located at the rear of the Urioste residence which were smeared with a red substance. Bargiel also identified photographs of Alice Stewart, a resident of Carbondale Manor Nursing Home with whom defendant had previously engaged in sexual relations. Bargiel testified that Ms. Stewart was completely noncommunicative and in his opinion was unable to consent to anything. Bargiel’s investigation showed that while staying at Carbondale Manor, defendant had gotten from his room to Alice Stewart’s room by removing the window screens and traveling a very intricate route around the outside of the complex. Bargiel discovered that defendant had had numerous contacts with Ms. Stewart and other female residents, despite being instructed repeatedly to refrain from such conduct.

The parties stipulated that the autopsy report, showing the victim’s cause of death as loss of blood due to stab wounds of the front and back of the chest, could be admitted into evidence. It was also stipulated that the testimony of Judge Lola Maddox, given at the hearing on defendant’s motion to suppress, would be considered at trial.

Judge Maddox testified that as an associate judge of the Third Judicial Circuit she had advised defendant of his rights at his first appearance on August 11, 1986. During his appearance, defendant appeared agitated and tried to interrupt the judge several times to ask questions. After informing defendant of the charges, including two counts of murder, and explaining his rights and the possible penalties, defendant asked Judge Maddox how he could be charged with two murders when he had killed only one person in his life. Judge Maddox told defendant that “he didn’t want to" ask me any questions like that and he didn’t want to say anything else, and he ought to wait to talk to his lawyer.”

Judge Maddox indicated that defendant’s statement was volunteered; she had asked him no questions other than whether he understood what she was telling him. Judge Maddox identified documents dated November 17, 1982, which adjudicated defendant a disabled adult and appointed his father as guardian. The judge stated that she knew the defendant “had some problems,” but that he appeared coherent, and to understand what was occurring, giving affirmative responses when asked whether he understood his rights. Had it appeared that he did not understand, Judge Maddox testified that she would have done something else.

Mark Johnsey, a crime scene technician with the Illinois State Police, collected several items from the victim’s bedroom, including a bed sheet and a torn condom package. He also administered a vitullo sexual assault kit on the victim and collected several items of clothing from the victim and defendant. Johnsey lifted a latent palm print from the top side of the bathtub on the first floor. This physical evidence, as well as the knife received from Detective Bargiel, was submitted by Johnsey to the Fairview Heights lab for testing. David Peck, a forensic scientist specializing in latent print examinations, testified that the palm print from the bathtub matched the left palm on the inked fingerprint card of defendant. Peck found no suitable latent prints on the knife.

Dennis Aubuchon, a forensic serologist employed at the Illinois State Police Crime Lab in Fairview Heights, testified that the victim’s vitullo kit showed trace seminal material, as did her undergarments. However, due to the small amounts of semen present, no males could be excluded. Aubuchon’s tests on the knife and defendant’s undershorts revealed bloodstains of general blood type A, which could have come from the victim but could not have come from defendant. The general blood type A discovered occurs in approximately 40% of U.S. Caucasians and 27% of U.S. blacks.

A report on the hair samples examined in the case revealed no interchange of hairs between the victim and defendant among the hair collected from the victim’s bed, pubic hair combings, and debris from defendant’s shoes and clothes. Red, white and blue fibers were found both in the victim’s bed and on defendant’s shirt and pants. Although some hairs found on the victim’s sheet were dissimilar to those of either defendant or the victim, hair standards from other persons living in the victim’s home were not submitted for comparison.

The trial court, in rendering its verdict, found that the State had proven defendant guilty beyond a reasonable doubt of each of the crimes charged. The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. (People v. Martin (1983), 112 Ill. App. 3d 486, 500, 445 N.E.2d 795, 807.) Here, Mrs. Rodgers’ identification of defendant as her daughter’s assailant was corroborated by other witness testimony, physical evidence, and by defendant’s statements.

Renee Rodgers saw someone who looked like defendant leaving her home the morning of the murder. She and Kenneth Click testified to defendant’s attempts to enter her home through a window several days earlier. Defendant’s palm print was discovered on the top side of the bathtub in the Rodgers’ bathroom, and evidence suggested that the murderer entered through the bathroom window after removing the screen. The court also heard testimony regarding defendant’s behavior at Carbondale Manor, where he had intercourse with patient Alice Stewart after similarly gaining entry to her room through a window.

Police officers arriving at defendant’s home shortly after the murder saw blood on defendant’s upper chest or neck and on his hands. At various times, defendant made attempts to camouflage the blood with blood from a previously closed cut on his thumb and to wipe off the blood when he learned that he was to be photographed.

Lab tests showed that bloodstains on defendant’s undershorts were general blood type A, the victim’s blood type, and could not have been defendant’s blood. Type A bloodstains were also present on the knife that police discovered in a brush pile along a path from the victim’s yard to an alley leading to defendant’s home.

Under Martin, this evidence would be sufficient to convict defendant, even had he contradicted it. Here, however, defendant’s admissions to Deputy Marsala and to Judge Maddox give additional support to the court’s finding of guilt. Therefore, given the variety and strength of the evidence against defendant, we cannot say that the court’s determination of guilt was in error.

Defendant further claims that the trial court erred in finding defendant guilty but mentally ill, where the State failed to prove defendant’s legal sanity beyond a reasonable doubt. Section 6 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a)) provides that a person is not criminally responsible for his conduct if at the time of the conduct, as a result of a mental disease or defect, he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. A defendant who raises the defense of insanity has the burden of proving such by a preponderance of the evidence, while at the same time the State has the burden of proving sanity beyond a reasonable doubt for purposes of a guilty but mentally ill verdict. People v. Fierer (1988), 124 Ill. 2d 176, 185, 529 N.E.2d 972, 977; Ill. Rev. Stat. 1985, ch. 38, pars. 3 — 2(b), 6-2(e).

It is clear that the question of a defendant’s mental state at the time of an offense is a matter for the trier of fact, and a determination of sanity will not be reversed unless it is so manifestly against the weight of the evidence as to create a reasonable doubt of sanity or so palpably erroneous as to indicate it was the result of passion or prejudice. People v. Snowden (1986), 147 Ill. App. 3d 763, 770, 498 N.E.2d 612, 617.

In the instant case, the following evidence was introduced, inter alia, concerning defendant’s mental condition. Felix Urioste, defendant’s father, testified that in November 1981, defendant suffered a closed head injury in an accident. While at a hospital, defendant ceased breathing for a time and suffered brain damage from the lack of oxygen. After being comatose for three months, defendant regained consciousness and began a long rehabilitation period.

Mr. Urioste testified that during the 31/2 years defendant lived at home following his injury, he basically followed the rules of the house except, at times, when he chose not to follow them. In 1984, defendant began exhibiting self-destructive behavior, cutting or stabbing himself on several occasions. In May 1986, following a physical confrontation with his father, defendant was admitted to Carbondale Manor Nursing Home. Mr. Urioste was aware that defendant had made suggestive comments to nurses at a hospital where he had recuperated following his accident, and recounted incidents where defendant had made an embarrassing statement to a clerk at the grocery store and had propositioned an elderly neighbor.

The parties stipulated that the testimony of William Carnagey, given at an Illinois Department of Public Health hearing on March 11, 1987, would be admitted into evidence at trial. Mr. Carnagey was a head-injury specialist who had founded the program “Outreach Neuro Rehab,” which worked exclusively with adults who had sustained a traumatic brain injury. Carnagey testified that sexual frustration was very common among head-injured people. Carnagey further testified that defendant’s admission interview revealed a high degree of intelligence; defendant was perfectly capable of carrying on an adult conversation. Based on Camagey’s observation of defendant, he felt that defendant’s IQ was still very close to normal or even, perhaps, slightly higher.

Carnagey did not consider defendant disturbed but rather blamed defendant’s breaking of the rules at Carbondale Manor on mischieviousness. Defendant was very manipulative and cunning at times, exhibiting the fairly unique characteristic among the head-injured of expressing remorse for his wrongdoings. Carnagey testified that defendant’s neglect or abuse of the rules was fairly common among the head-injured people in his program. Defendant exhibited impulse control problems and did not seem able to anticipate the consequences at the time of committing violations, although he owned up to them afterwards and exhibited remorse. Carnagey testified that it is not uncommon following a head injury for aggressive behavior to result. However, defendant was transferred from Carbondale Manor following a May 25, 1986, incident where he was found in resident Alice Stewart’s room forcing sexual desires upon her, as Carnagey feared that defendant’s behavior might be becoming more aggressive.

Dr. Lawrence Taliana, a clinical psychologist, testified for defendant. Dr. Taliana saw defendant on eight separate occasions beginning in December 1986, at the Madison County jail. In addition to his observations and interviews with defendant, he performed standard tests. Defendant’s reading and mathematic scores were at the sixth-grade level and his full-scale IQ was 74.

Dr. Taliana diagnosed defendant’s condition as moderate to severe brain damage, an organic mental disorder, with impairment of intellectual functions and organic personality disorder. He explained that the diagnosis of organic personality disorder meant that predispositions that likely existed before defendant’s injury had become exaggerated. Defendant showed a decrease in control over impulses, specifically sexual impulses, and decrease in control of aggressive behaviors. Dr. Taliana testified that defendant’s impulsive behaviors showed a lack of planning ahead that was often seen in brain disorders caused by oxygen deprivation. Dr. Taliana testified that defendant’s condition would have existed on August 8, 1986, and that his condition was classified as a mental illness by the American Psychiatric Association.

In answer to a hypothetical based on the facts herein involved, Dr. Taliana testified that defendant would have had a great deal of difficulty controlling his behavior and impulses and that his motivation toward sexual activity had been heightened by his injury. Defendant might have had some minimal understanding of the repercussions of his acts but that the severe impairment was in his impulse control. Dr. Taliana felt that defendant could not conform his conduct to the requirements of law “in the usual sense of a normal human being.”

On cross-examination, Dr. Taliana admitted that not all brain-damaged people commit crimes or are incapable of appreciating the criminality of their acts or of conforming to the law. Dr. Taliana found no evidence of psychosis in his examination of defendant and felt that defendant was competent to stand trial. Dr. Taliana was presented with an incident at Carbondale Manor where defendant made a sexually suggestive move toward a nurse and, when told to stop, asked the nurse to excuse him because he was brain-damaged. Dr. Taliana agreed that defendant’s remark could be interpreted as defendant’s manipulation of his head injury as an excuse for his actions. Dr. Taliana also agreed that the action of bringing a knife to the victim’s home could indicate premeditation and planning and that hiding the knife afterwards, lying to police, and attempting to conceal evidence of the murder would suggest an appreciation of the ramifications of one’s acts.

Dr. David Warshauer, the chief psychologist at the Anna Mental Health and Development Center (Anna), testified for the State in rebuttal. Dr. Warshauer interviewed defendant upon his admission to Anna in May 1986 and determined him to be alert and oriented, with no evidence of psychosis. While a patient at Anna, defendant followed directions, was cooperative, and exhibited mostly appropriate behavior. Although defendant had suffered brain damage, Dr. Warshauer observed nothing in his behavior that would suggest that, as a result, he was unable to conform to the rules and regulations placed on him or to appreciate the consequences of his acts. Defendant’s brain damage, itself, would not necessarily diminish his ability to appreciate the criminality of his acts and to conform his conduct as required. Further, the fact that defendant did not follow the rules at all times could mean that he just did not want to follow them rather than he was unable to follow them.

Based upon the facts surrounding the victim’s murder and on his knowledge of the defendant while at Anna, Dr. Warshauer expressed an opinion that defendant was able to appreciate the criminality of his acts at the time of the crime and that he could conform his conduct to the requirements of the law. Dr. Warshauer testified that defendant’s planning the act and hiding the knife afterward demonstrated that he appreciated the criminality of the act and that he was able to conform to the law.

On cross-examination, Dr. Warshauer agreed that defendant had poor impulse control and that while at Anna defendant was on medication to decrease physically aggressive behavior. Dr. Warshauer acknowledged several incidents where defendant had failed to follow the rules of Anna, including an attempt to choke a female employee, inappropriate sexual behavior, and beligerence to staff members. However, at the time defendant was discharged from Anna, Dr. Warshauer felt that defendant was not exhibiting any great inability to control his impulses. Dr. Warshauer stated that the disorder suffered by defendant was a mental illness which impaired defendant’s thinking. However, the fact that defendant had shown poor judgment and poor impulse control would not indicate that he was unable to appreciate the wrongfulness of his acts or to conform to the requirements of the law.

Carbondale police officer John Sytsma testified that he had arrested defendant at Carbondale Manor on May 25, 1986, following defendant’s sexual encounter with Alice Stewart. Defendant told Sytsma that something had snapped in his mind and that he could not help himself. However, defendant also told Sytsma “you can’t rape the willing.” Defendant was surprised when Ms. Stewart spoke during the sexual encounter; he did not think the incident was a “big deal” because he thought Ms. Stewart could not talk. The State’s Attorney of Jackson County declined to prosecute due to defendant’s mental condition.

Virginia Roberts, the former administrator of Carbondale Manor, testified that defendant was one of the higher-level head-injured patients at the facility. Ms. Roberts stated that defendant had a number of behavioral problems, among them leaving the facility and sexual problems with other patients. Ms. Roberts testified that defendant tried to manipulate the staff and had told her there was nothing she could do to him because he was a head-injured patient. Ms. Roberts felt that defendant knew the difference between right and wrong and what the rules were, but that he conformed to them only when he wanted to do so.

In announcing its verdict, the trial court found that defendant had established that he was suffering from moderate to severe organic brain damage, but that it was not to such an extent that it prevented him from appreciating the criminality of his conduct or conforming his conduct to the requirements of the law. The court further found that defendant was suffering from a mental illness at the time of the crimes and that he was therefore guilty but mentally ill of the crimes charged.

Defendant argues that the testimony of Dr. Warshauer, the State’s expert, was so weak and self-serving that it failed to rebut the testimony of the defense expert, Dr. Taliana. However, in determining the question of sanity, the trier of fact may accept one expert’s opinion over that of another. People v. Tylkowski (1988), 171 Ill. App. 3d 93, 99, 524 N.E.2d 1112, 1116.

In Snowden, this court affirmed a finding of guilty but mentally ill where, as here, defendant’s expert witness testified that defendant was unable to conform his conduct to the requirements of the law while the State’s expert witnesses had contrary conclusions. The Snowden court observed that the trial court had relied upon the opinions of the State’s experts, as well as evidence of the circumstances surrounding the offenses, to find that the defendant was legally sane. (Snowden, 147 Ill. App. 3d at 770-71, 498 N.E.2d at 617.) The facts in Snowden illustrated a pattern by the defendant of deliberate and controlled actions, including planning the crime, concealing his identity, and escaping when he was about to be discovered, that belied his defense of insanity. 147 Ill. App. 3d at 771, 498 N.E.2d at 617-18.

In the instant case, the trial court similarly found that the opinion of Dr. Warshauer and the State’s other rebuttal witnesses, together with the circumstances surrounding the offenses, required a finding that defendant was not insane. Defendant’s acts demonstrated premeditation and planning, together with efforts to escape and to cover up evidence of his committing the crimes, rather than an inability to conform his conduct to the requirements of the law. The trial court was free to accept or reject the testimony of the various witnesses, and we cannot say that its decision was improbable or unreasonable. See Tylkowski, 171 Ill. App. 3d at 100, 524 N.E.2d at 1117.

Defendant next argues that the statutory scheme for the insanity defense, which requires a defendant to prove insanity by a preponderance of the evidence (Ill. Rev. Stat. 1985, ch. 38, pars. 3 — 2(b), 6 — 2(e)), and the guilty but mentally ill (hereinafter GBMI) finding, which requires the State to prove sanity beyond a reasonable doubt (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4(j)), is irreconcilable and unconstitutional as applied to him. However, as defendant admits, this court has previously found the insanity statute to be constitutional insofar as it places the burden on the defendant to prove his insanity by a preponderance of the evidence (People v. Hightower (1988), 172 Ill. App. 3d 678, 526 N.E.2d 1129), and the GBMI statute has been held not to violate defendant’s due process and equal protection rights. People v. Smith (1984), 124 Ill. App. 3d 805, 465 N.E.2d 101.

In Fierer (124 Ill. 2d at 189, 529 N.E.2d at 977), the supreme court discussed the interplay between the insanity and GBMI statutes, stating:

“Under this scheme, a theoretical class of defendants exists who cannot be found insane and thus not guilty by reason of insanity, because they have not carried their preponderance burden, but who also may not be found GBMI because their noninsanity has not been proved by the State beyond a reasonable doubt. In other words, defendants whose sanity is a close question, the very group one would think should be covered by the GMBI verdict, may not be found GBMI because they fall into the gap between ‘preponderance’ and ‘beyond a reasonable doubt.’ ”

However, the court declined to pass on the constitutionality of the insanity/GBMI scheme, stating that whether that interrelationship is so awkward as to be unconstitutional was not properly before the court. Fierer, 124 Ill. 2d at 189, 529 N.E.2d at 977.

It is similarly unnecessary for this court to decide the question, where we have affirmed the trial court’s finding that the evidence established defendant’s sanity beyond a reasonable doubt. Because defendant, therefore, is not within the class of persons identified by the court in Fierer as falling into the gap between “preponderance” and “beyond a reasonable doubt,” the statutory scheme has been applied constitutionally to him. A person to whom a statute may be applied constitutionally cannot challenge that same statute on the grounds that it could, in another context, be applied unconstitutionally to another party. People v. Gully (1986), 151 Ill. App. 3d 795, 798, 502 N.E.2d 1091, 1093; People v. Holder (1983), 96 Ill. 2d 444, 449, 451 N.E.2d 831, 833, cert, denied (1984), 467 U.S. 1241, 82 L. Ed. 2d 820,104 S. Ct. 3511.

Defendant next contends that the trial court erred in denying his motion to suppress incriminating statements made to Detective Bargiel, Deputy Marsala, and Judge Maddox. Upon review, a trial court’s determination on a motion to suppress will not be reversed unless it is against the manifest weight of the evidence, and evidence presented at trial may be considered in addition to the evidence presented at the suppression hearing. People v. King (1986), 109 Ill. 2d 514, 525, 488 N.E.2d 949, 955, cert, denied (1986), 479 U.S. 872, 93 L. Ed. 2d 173, 107 S. Ct. 249.

The burden is on the State at a suppression hearing to show by a preponderance of the evidence that defendant’s confession was voluntarily given. (King, 109 Ill. 2d at 525, 488 N.E.2d at 955; Peo pie v. Nau (1988), 167 Ill. App. 3d 338, 349, 521 N.E.2d 177, 185.) The State must similarly show by a preponderance of the evidence that a defendant voluntarily and knowingly waived his Miranda rights. (Nau, 167 Ill. App. 3d at 349, 521 N.E.2d at 185; see also People v. Bernasco (1989), 185 Ill. App. 3d 480, 493, 541 N.E.2d 774, 782, appeal allowed (1989), 127 Ill. 2d 622, 545 N.E.2d 116.) Given the evidence of record, we cannot say that the trial court’s finding that the State sustained these burdens was against the manifest weight of the evidence.

It is clear that evidence of limited intellectual capacity is not sufficient, of itself, to indicate that a defendant is incapable of waiving his constitutional rights and making a voluntary and knowing confession. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685; see also Bernasco, 185 Ill. App. 3d at 489, 494, 541 N.E.2d at 779, 783.) Rather, the United States Supreme Court, in Colorado v. Connelly (1986), 479 U.S. 157, 164, 93 L. Ed. 2d 473, 482, 107 S. Ct. 515, 520, has found that coercive police activity is a necessary predicate to a finding that a confession is not “voluntary” within the meaning of the due process clause. While the mental condition of a defendant may be a significant factor in determining the voluntariness of a confession, it does not “by itself *** dispose of the inquiry into constitutional ‘voluntariness.’ ” (Connelly, 479 U.S. at 164, 93 L. Ed. 2d at 482, 107 S. Ct. at 520.) The court further stated that “[t]here is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” 479 U.S. at 169-70, 93 L. Ed. 2d at 486,107 S. Ct. at 523.

In the instant case, none of the statements which were the subject of defendant’s motion to suppress was made as a result of coercion by police or other authorities. Defendant was given Miranda warnings immediately upon his arrest, and he stated that he understood them. At the police station, Detective Bargiel also gave defendant Miranda warnings and defendant informed him that he had heard the Miranda warnings previously and that he understood them. Defendant then volunteered the statement, “I can’t help that somebody who look [sic] like me goes into people’s houses and kills people.”

Defendant similarly volunteered his confession to Deputy Marsala and continued to discuss the crimes although Marsala interrupted defendant and admonished him according to Miranda. Judge Maddox testified that at defendant’s first appearance, the defendant questioned how he could be charged with two murders when he had killed only one person in his life, without any prompting from the court. Therefore, where none of these statements was made as a result of interrogation, much less coercion by the authorities, under Connelly, defendant’s statements were voluntary, as was his waiver of his Miranda rights.

However, analysis of the validity of a waiver of defendant’s fifth amendment rights does not cease upon a finding of voluntariness; besides being voluntary, the waiver must be knowing and intelligent. (Bernasco, 185 Ill. App. 3d at 492-93, 541 N.E.2d at 782.) To be knowing and intelligent, “the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Berbine (1986), 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141.) Only if the totality of the circumstances “reveal[s] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” 475 U.S. at 421, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.

In Bernasco, this court affirmed a trial court’s order suppressing the confession of a 17-year-old defendant, finding that the defendant did not knowingly and intelligently waive his fifth amendment rights because of his “ ‘sub-normal intelligence, his inability to comprehend what his rights were, and his fright of the situation.’ ” (Bernasco, 185 Ill. App. 3d at 490, 495, 541 N.E.2d at 780, 783.) Here, however, the evidence established that defendant possessed the capacity to waive his rights knowingly and intelligently. Both Dr. Warshauer and Dr. Taliana found no evidence of psychosis in defendant. William Carnagey testified that, based on defendant’s verbal skills, his IQ was very close to normal or perhaps slightly higher than normal. Both Detective Bargiel and Deputy Marsala believed that defendant understood when they informed him of his Miranda rights. Further, Bargiel, Marsala, and Judge Maddox all felt that at the time defendant made statements to them, he understood where he was and what he was doing. We believe that this evidence is sufficient to conclude that defendant did knowingly and intelligently waive his Miranda rights. Thus, the trial court did not err in denying defendant’s motion to suppress his statements.

Defendant’s final contention is that the trial court abused its discretion in sentencing him to a 40-year term of imprisonment for murder given the defendant’s mental condition and the evidence presented in mitigation. Defendant’s claim, however, is without merit.

The standard for reviewing sentences is whether the trial court abused its discretion (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545), and the reviewing court must give great weight to the sentence the trial court imposes. (People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, Ill.) While rehabilitation is one consideration, the court must also consider the nature of the crime, the protection of the public, deterrence, and punishment. (170 Ill. App. 3d at 677, 525 N.E.2d at 111, quoting People v. West (1977), 54 Ill. App. 3d 903, 909, 370 N.E.2d 265, 270.) A defendant found guilty but mentally ill may be sentenced to any sentence that may have been ordered for a defendant found guilty without a finding of mental illness. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 2—6(a).

In the instant case, the trial court’s remarks at sentencing show that it considered the evidence presented at the sentencing hearing and the statutory factors in mitigation. The court’s remarks also show that it gave serious consideration to defendant’s mental condition:

“[N]o court can bring back a life or take away brain damage. A Judge can only do what the law empowers him to do and imposes a duty upon a Judge to do what that law requires.
It’s my duty, Mr. Urioste, to sentence you and in doing that I must balance in addition to considering all the other factors *** your potential for rehabilitation against the necessity [for] protection of the public.”

The court further announced that it was making the strongest recommendation to the Department of Corrections that defendant be placed in the Chester Mental Health facility, or in some other secure mental institution, for the duration of his sentence. Thus, where the sentence ordered by the trial court recognized both the need to provide treatment for defendant and the need to protect the public, no abuse of discretion exists.

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

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
      In re ESTATE OF FRED H. WESSELS, Deceased (Wesley J. Wessels, Objector-Appellant, v. Winifred R. Burros, Claimant-Appellee).
    Third District
    No. 3 — 89—0747
    Opinion filed September 27, 1990.

      Ackman, Marek, Boyd & Simutis, Ltd., of Watseka (Frank J. Simutis, of counsel), for appellant.
    Sebat, Swanson, Banks, Carman & Townsley, of Danville (Ralph J. Swanson, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

An objector, Wesley J. Wessels, appeals from the circuit court’s allowance of the claim of Winifred R. Burrow against the estate of Fred H. Wessels, deceased. We affirm.

Since the manifest weight of the evidence is an issue in this appeal, we shall set out in some detail the evidence presented at trial as reflected in the record. Four witnesses testified at trial: Shanda Jaremus, adult daughter of the claimant; Milo J. Fleming, the attorney who drafted the document forming the basis of this claim; Helen Hawthorne, secretary to Mr. Fleming at the time the document was drafted; and Wesley J. Wessels, the objector bringing this appeal. For the most part, the testimony of all the witnesses was consistent.

Fred H. Wessels (Fred) was born on April 10, 1889. He owned and operated a farm in Iroquois County for much of his life. Sometime in or prior to 1959, Fred’s daughter, Winifred R. Burrow (Winifred), moved her trailer home onto Fred’s farm. The trailer home was placed about 50 feet from Fred’s house, and Winifred lived in the trailer home with her daughter, Shanda. Fred’s wife, Theda, died on January 14, 1966. Following Theda’s death, Winifred quit her job with a company in the area and devoted herself to helping Fred in many ways, but especially by doing household chores such as cooking and cleaning and by assisting Fred in managing the house and the farm. Although Fred was almost 77 years old when his wife Theda died, at that time he was still healthy and actively farming at least part of his property. It was not until around 1973 or 1974 that Fred retired from active farming. By that time he had leased some of his farmland to his son, Wesley J. Wessels (Wesley), and all or most of the rest to Wesley’s son, Martin A. Wessels (Martin).

Sometime in 1974 Winifred’s daughter Shanda moved from the trailer into Fred’s house. In May 1975, an expansive power of attorney was executed by Fred which appointed Winifred as his attorney in fact. Sometime in 1975 Winifred moved into Fred’s house. Shanda moved out of Fred’s house and away from the immediate area in March 1976, to live on her own. In September or October of 1976, Wesley and his son Martin entered into a written lease with Fred to farm all or most of Fred’s farm. This lease was for Fred’s lifetime. Wesley’s uncontradicted testimony was that Fred understood this lease and its terms when Fred entered into it.

On December 6, 1976, Fred and Winifred met with Milo J. Fleming (Fleming), an attorney, at Fleming’s office. (By that time Fred had been consulting Fleming on legal matters for almost 20 years, and over that time had come to see Fleming on legal matters on at least around 50 occasions.) The meeting had been arranged the day before when Fred and Winifred had been in Fleming’s office on other legal business. Winifred drove Fred to this meeting, as Fred could no longer drive an automobile. At the meeting a discussion took place wherein Winifred expressed her concern that she be compensated for her services around the house and farm, including her taking care of Fred. (Testimony was divided as to whether this matter was the reason for the meeting, or whether the meeting was set up for another purpose and Winifred brought up this matter at the meeting on her own initiative.) Fred expressed his concern that he have enough assets available to pay expenses that could result from an injury or illness that might befall him. Fleming indicated that if Fred wished to compensate Winifred, subject to payment of expenses due to injury or sickness, there was a way to do that. That way was to enter into a contract for Winifred’s services and to make the compensation payable at Fred’s death, as a claim against Fred’s estate. Fleming explained the estate tax consequences of such a course of action, under the estate tax law in force at that time. Fleming also stated that it was entirely up to Fred whether he wished to compensate Winifred. In reply, Fred indicated that if a contract could be drawn up that way, that that would be fine with him.

Fred, Winifred, and Fleming discussed at length the matter of a contract for Winifred’s services. That discussion, which included the terms of the resulting document, took around two hours. Fred actively participated in specifying the provisions in the document, though he did obtain Winifred’s agreement as each provision was being discussed. Much of the discussion between Fred and Winifred concerned what would be reasonable amounts to use for compensation. Various criteria were discussed, including the amount of money Winifred could earn in outside employment, the amount of money Fred would have to spend if he went into a nursing home, as well as the effects of inflation. Fleming dictated the document to his secretary, Helen Hawthorne, in the presence of Fred and Winifred, and had his secretary read it back to him, also in the presence of Fred and Winifred. After it was typed up, it was handed to Fred to read, and it was once again read to him, by either Fleming or his secretary. Fred did not suggest any corrections or changes during or after the three times the language in the document was read to him. He executed the two-page document at its end and at the bottom of the first page, and Fleming and his secretary witnessed it.

As executed, the document at issue states as follows:

“WHEREAS, my daughter, Winifred R. Burrow, since the death of my wife, Theda C. Wessels, on January 14, 1966, has lived in my home and taken care of it and kept it for me and has looked after me during my illnesses and declining years; and
WHEREAS, I have received and will receive said services, expecting to pay for the same; and
WHEREAS, I feel that she is entitled to compensation for her services to me;
NOW, THEREFORE, I acknowledge myself indebted to my said daughter, Winifred R. Burrow, in the amounts hereinafter set forth and I agree and promise to pay said Winifred R. Burrow the sums hereinafter set forth, namely:
1. For all services performed by her through December 31, 1976, the sum of SIXTY-SIX THOUSAND DOLLARS ($66,000.00) said sum representing approximately $500.00 per month for said period of time; and
2. The further sum of TWO HUNDRED DOLLARS ($200.00) per week for each week that she shall after December 31, 1976 live and remain in my home, until the date of my death, said monthly sum shall be payable regardless of whether or not I am in my said home or whether I may be in the hospital or in some other facility receiving medical services.
Said amounts hereinabove provided for shall be payable at my death and shall be allowed as a claim against my estate, one-half thereof being payable in the calendar year in which I shall die and the other half being payable on the second day of January of the year following the calendar year in which I shall die. All sums by me given Winifred R. Burrow during my lifetime shall be considered as gifts by me to her and shall not be used as an off-set or credit against the sums herein due.
The payments of the sums hereinabove provided for shall in no manner impair the share of my estate to be taken by said Winifred R. Burrow under my Last Will and Testament of February 28, A.D., 1966, and subject to the payment of this any my other debts, funeral expenses and costs of administration, I do hereby ratify and confirm my Last Will and Testament of February 28, A.D., 1966.
DATED this 6th day of December, A.D., 1976.
Isl Fred H. Wessels Fred H. Wessels
Is/ Helen Hawthorne /s/ Milo J. Fleming Witnesses”

Fleming and his secretary testified at trial that at the time the document was composed and executed Fred had some difficulty hearing and seeing, but that in their opinion he understood the discussion and he understood the contents and effect of the document. Fleming testified that at the time the document was signed Fred did not seem to be in any way emotional nor did Fred act in any peculiar fashion. Both Fleming and his secretary testified that in their opinion Fred signed the document freely and voluntarily. After signing the document, Fred handed it to Winifred, who had been present throughout. Winifred in turn asked Fleming to keep it in the office safe, which he did until shortly before it was introduced as an exhibit at trial. Fred paid for Fleming’s services in preparing the document, though he probably did so by signing a check prepared by Winifred, as was Fred’s general practice for paying bills at that time.

Winifred continued to care for Fred from that time until shortly before he died on December 10, 1980. Winifred continued to maintain Fred’s house until his death.

After Fred’s death, Winifred filed a claim against Fred’s estate for $107,000, the amount due under the terms of the document above quoted. Since Winifred was the executrix of Fred’s estate, a special administrator was appointed to deal with the claim. The special administrator denied the claim and defended against it at trial. Also objecting to the claim at trial were several of Fred’s other children, as well as the disinherited children of a deceased child of Fred who were contesting Fred’s will in a separate action. After a bench trial, the circuit court allowed the claim, and Wesley has appealed that decision.

The issues presented for review are (1) whether the decision of the circuit court was against the manifest weight of the evidence, and (2) whether valid consideration was present for that promise in the document at issue relating to past services performed by the claimant for the decedent.

Winifred has conceded that she was the dominant party in a fiduciary relationship with Fred. In Clark v. Clark (1947), 398 Ill. 592, 76 N.E.2d 446, involving an action to set aside conveyances and to impose a constructive trust, the Illinois Supreme Court discussed situations in which a fiduciary benefits from a transaction with the trusting party:

“When the existence of a fiduciary relation has been established the law presumes that any transaction between the parties, by which the dominant party has profited, is fraudulent. This presumption is not conclusive, but may be rebutted by clear and convincing proof that the dominant party has exercised good faith and has not betrayed the confidence reposed in him. *** The mere existence of a fiduciary relation prohibits the one trusted from seeking or obtaining any selfish benefit for himself and affords a basis for fastening a constructive trust upon the property, in the absence of a sufficient showing that the transaction was not the result of, or attended by, an abuse of the confidence reposed.
*** In cases where the evidence shows a fiduciary relationship, neither undue influence nor mental incapacity is necessary to be established in order to avoid the transaction. [Citation.] The question in all such cases is whether the dominant party who has obtained the benefit of the transaction has exercised good faith and not betrayed the confidence reposed in him. * * * If a conveyance was not procured through improper means attended with circumstances of oppression or overreaching, but was entered into by the grantor with full knowledge of its nature and effect and because of his or her deliberate, voluntary and intelligent desire, the existence of a fiduciary relation does not invalidate the transaction. [Citation.] Contracts and transactions between parties to a fiduciary relation, if open, fair and honest when deliberately made, are as valid as contracts between other parties.” Clark, 398 Ill. at 601-03, 76 N.E.2d at 450-51.

The Illinois Supreme Court has recently addressed how presumptions are to operate in trials. That court stated:

“The prevailing theory regarding presumptions that Illinois follows and Diederich speaks about is Thayer’s bursting-bubble hypothesis: once evidence is introduced contrary to the presumption, the bubble bursts and the presumption vanishes. [Citations.] It is consistent with the Thayer approach that the party producing evidence to rebut the presumption must come forward with evidence that is ‘sufficient to support a finding of the nonexistence of the presumed fact.’ [Citation.] * * *
The amount of evidence that is required from an adversary to meet the presumption is not determined by any fixed rule. A party may simply have to respond with some evidence or may have to respond with substantial evidence. If a strong presumption arises, the weight of the evidence brought in to rebut it must be great. [Citation.]
* * *
In Rizzo v. Rizzo (1954), 3 Ill. 2d 291, this court reviewed a fiduciary relationship arising out of a partnership. After finding that a fiduciary relationship existed and the defendants benefited from it, the court determined that a presumption of undue influence arose from the confidential relationship of the partnership, since the dominant party had enjoyed a benefit due to his fiduciary status. That presumption having been raised, the court determined that the beneficiary must produce clear and convincing evidence in order to rebut that presumption. [Citation.]
* * *
We therefore feel that as a matter of public policy an attorney [who drafts a will and stands to benefit from that will] must provide ‘clear and convincing’ evidence to rebut the presumption of undue influence once it has been raised.
* * *
Sufficient evidence has been produced to rebut the presumption of undue influence as a matter of law. However, the judge as the trier of fact must now weigh the evidence and consider any and all reasonable inferences that can be drawn from these facts, including the possible inference of undue influence.” Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 462-66, 448 N.E.2d 872, 877-78.

While the holding of the Illinois Supreme Court in Franciscan Sisters could be construed as only relating to attorney-client relationships, we agree with the fourth district’s view as expressed in Lamb v. Lamb (1984), 124 Ill. App. 3d 687, 464 N.E.2d 873, that clear and convincing evidence is required to rebut the presumption of fraud or undue influence arising from transactions within any fiduciary relationship, not just those involving attorneys and their clients.

The evidence shows that Fred was 87 years old when the document was executed and that his sight and hearing were somewhat impaired. However, the evidence also shows that Fred’s mind was still sharp, and that his overall health was good for a man his age. In particular, the evidence demonstrates that he was capable both of understanding the import of the document and of voluntarily and freely assenting to it, and that he did understand it and voluntarily and freely assented to it. Wesley himself testified that Fred understood the lease Fred signed only two or three months prior to Fred’s signing of the document involved here. (That lease was of Fred’s farm, and its term was the remainder of Fred’s life.) It is not disputed that Winifred provided the services called for in the document, that the amounts of money noted in the document were reasonable in comparison to the value of the services, or that Fred derived substantial benefit from Winifred’s services.

Despite arguments by Wesley that Fleming acted as attorney for Winifred rather than Fred, the evidence demonstrates clearly that Fred had been going to Fleming for legal advice for almost 20 years at the time the document at issue was executed, and Fleming had met with Fred concerning Fred’s legal matters somewhere between about 50 and 100 times. Fleming had written a will for Winifred and had referred her to another attorney regarding her divorce, but that had been the extent of Fleming’s legal work on Winifred’s behalf up until the time the document was executed. The evidence shows that Fleming provided Fred independent legal advice and apprised Fred of the meaning and effect of the document at issue. Independent legal advice concerning a questioned transaction, when given to the trusting party of a fiduciary relationship, is significant evidence tending to rebut a presumption that the transaction is fraudulent or the result of undue influence. Cf In re Estate of Wright (1964), 49 Ill. App. 2d 196, 207,199 N.E.2d 54, 59.

The appellate court must defer to the findings of fact of the circuit court unless they are contrary to the manifest weight of the evidence. (See Klaskin v. Klepak (1989), 126 Ill. 2d 376, 389, 534 N.E.2d 971, 976.) After reviewing the entire record, we find that the evidence strongly supports the circuit court’s findings that Winifred rebutted the presumption of fraud or undue influence with clear and convincing evidence, that the document at issue was procured, formulated, and executed in good faith, and that the circumstances surrounding the document’s procurement, formation, and execution involved no abuse of the confidence Fred reposed in Winifred.

The second issue is whether there was consideration for Fred’s promise in the document to pay Winifred for services performed prior to the execution of the document. If prior to the execution of the document there had been no express or implied agreement between Fred and Winifred that Winifred would be compensated for her services, then (at least as this document is worded) consideration would be lacking for Fred’s promise to pay Winifred for services rendered prior to the document’s execution.

It is a general rule of law that services rendered by one member of a family for another, without a contract or agreement to pay for the same, or without a request for the services, are presumed to be gratuitous and do not constitute sufficient consideration to support a promise to pay for the same. (Meyer v. Meyer (1942), 379 Ill. 97, 103-04, 39 N.E.2d 311, 314.) In this case, the resolution of this second issue turns on the question of whether there had been, prior to the execution of the document and contemporaneous with Winifred’s services, a contract or agreement between Fred and Winifred to pay for those services.

The document does have two significant legal effects: (1) it contains an offer to pay for future services by Winifred, which could be accepted only by performance of those services (resulting in a unilateral contract once acceptance occurred), and (2) it contains admissions that Fred had “received *** [Winifred’s] services, expecting to pay for the same” and that he “acknowledge^] [himself] indebted to *** Winifred *** in the amounts hereinafter set forth.”

Wesley argues that no evidence was presented tending to show that Winifred and Fred, prior to the execution of the document, expected that Winifred would be compensated for her services. The record contains testimony of Helen Hawthorne, Fleming’s secretary, that for several months prior to the date the document was drawn up, Winifred and Fred had discussed in her presence the need to discuss with Fleming the matter of compensation of Winifred for her services. Of course, that evidence by itself would hardly be sufficient to demonstrate that from 1966 to 1976 Winifred and Fred proceeded under the expectation that Winifred was to be compensated for her services. However, the admissions in the document itself are the most significant pieces of evidence from which could be inferred the expectations of Fred and Winifred that Winifred would be compensated. Those admissions by themselves served to rebut any presumption that Winifred, as a close relative of Fred, provided her services gratuitously. Given that no evidence was put on to indicate that Winifred had ever intended to provide her services gratuitously, or that Fred had ever intended not to compensate Winifred for her services, the admissions in the document were about the only evidence on the point.

In the case of Baietto v. Baietto (1943), 319 Ill. App. 8, 48 N.E.2d 726, a situation similar to this one presented itself:

“It is claimed by the appellants that there is not sufficient evidence to show any contract between the father and sons and the grandsons to pay for their services which were rendered by them; that being close relatives of the father, the law presumes that the services would be gratuitous, and therefore the claimants have failed to overcome' this presumption. *** In the present case it will be observed that exhibit No. 3 is dated at Streator, on January 11, 1937. *** The father then continues, ‘In memory of debts, I have to pay, that I owe, to my boys for work that they have done for me around the home, that I never have paid them.’ The word ‘debt,’ used by the father in exhibit No. 3 must be given its usual and customary meaning. It has been described as meaning, to pay that which is due from one person to another, or that which any one is obligated to pay. Before there could be any debt due, that the father would be obliged to pay to his sons and grandsons, there must have been a contract, or agreement of some kind in order to create the debt.
*** Here, we have a solemn obligation of the father acknowledging a debt that he owes to his boys and reciting the amount that he owes to each of them, and why he owes the same. This was a declaration against interest to the estate and is sufficient proof of the amount that the estate owes to each of the claimants.” (Baietto, 319 Ill. App. at 12-13, 48 N.E.2d at 727-28.)

Wesley seeks to distinguish Baietto on the basis that farm work was involved there, whereas personal services are involved here. Such a distinction might be significant in the absence of a written admission, since in general the more burdensome the work the less likely it was meant to be provided gratuitously (see In re Estate of Clausen (1977), 51 Ill. App. 3d 18, 366 N.E.2d 162), but when a written admission is involved, as here, that distinction is not significant.

There was little evidence presented at trial pertaining to this issue of consideration for Winifred’s services prior to execution of the document. No one alluded to this issue by way of questioning or by way of argument, though some of the testimony, while introduced to prove other things, related obliquely to this issue. There was sufficient evidence for the circuit court to have drawn inferences on the issue of whether Fred and Winifred had an agreement, concurrent with Winifred’s rendition of services for Fred, that Fred would compensate Winifred for those services. Where several inferences may be drawn from the evidence, the reviewing court must accept that which supports the circuit court’s decision. (See Klaskin v. Klepak (1989), 126 Ill. 2d 376, 394-95, 534 N.E.2d 971, 979.) Hence, we accept the inference that Fred and Winifred had an agreement all along that Winifred’s services would be compensated. With such an agreement, Fred's promise in the document to pay for the services rendered by Winifred prior to the document’s execution simply specified the amount, manner, and timing of the compensation which previously had been promised by Fred in return for Winifred’s services. As such, that promise in the document was supported by sufficient consideration.

For the reasons expressed, we affirm the decision of the circuit court.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE McCULLOUGH

text:
    PETER J. COURI, Plaintiff and Counterdefendant-Appellant, v. THOMAS KORN, Defendant and Counterplaintiff (Martha LaHood, not Indiv. but as Independent Ex’x of the Estate of Anthony T. LaHood, et al., Defendants; Martha LaHood, not Indiv. but as Independent Ex’x of the Estate of Anthony T. LaHood, Plaintiff-Appellant; United Federal Savings Bank, f/k/a United Federal Savings & Loan Association of Illinois, et al., Defendants).
    Third District
    No. 3 — 90—0123
    Opinion filed September 25, 1990.
    Modified on denial of rehearing November 5,1990.

      Kevin D. Schneider and Mary Z. Newbould, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, and Phillip E. Couri, of Couri & Couri, of Winnetka, for appellant.
    Valerie M. Umholtz, of Moehle, Swearingen & Associates, of Pekin, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an interlocutory appeal by plaintiff Martha LaHood pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from an order staying the proceedings in this foreclosure action pending the resolution of common issues of disputed fact in a related quiet title claim pending in the circuit court of Tazewell County. Plaintiff argues the trial court abused its discretion in ordering the stay because (1) defendant Peter Couri did not establish hardship in going forward with these proceedings; (2) there is no identity of parties and issues between this case and the other pending case; and (3) the order is too broad. Couri has not filed a brief in this court. Because the record is simple and the claimed errors are such that we can easily decide the case without the aid of appellee’s brief, we will address the merits of plaintiff’s appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) We affirm.

This action concerns the foreclosure of a mortgage originally given by Couri to South Side Trust & Savings Bank (South Side) on May 24, 1982. On September 24, 1982, South Side assigned the mortgage to plaintiff’s decedent, Anthony T. LaHood. Plaintiff filed this foreclosure action on November 30, 1988. In 1987, Couri filed an action (1987 action) against Anthony LaHood et al., alleging breach of contract and fraud in connection with an oral agreement between Couri and Anthony LaHood. The agreement generated the mortgage subject to this appeal. In the 1987 action, Couri also brought a quiet title claim, alleging the assignment of the mortgage by South Side to Anthony T. LaHood was void. All claims against LaHood in the 1987 action have been resolved by summary judgment. The quiet title claim is still pending in the trial court.

In the instant action, on February 27, 1989, Couri filed a motion to dismiss or, in the alternative, to stay the proceedings pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)). On June 6, 1989, the trial court entered an order staying the foreclosure proceedings pending the resolution of the 1987 action. On January 12, 1990, the June 6, 1989, order was modified to provide:

“[T]he proceedings in Case No. 88 — CH—140 are stayed until the common issues of disputed fact, raised in Case No. 88— CH — 140 and [the 1987 action], are resolved by a jury, or by Summary Judgment. The common issues of disputed fact are whether the Note and Mortgage were wrongfully assigned to ANTHONY T. LAHOOD by SOUTH SIDE TRUST AND SAVINGS BANK. PETER J. COURI or the Estate of ANTHONY T. LAHOOD may set 88 — CH—140 for appropriate hearing or trial not less than seven days following the resolution of the common issues.”

Plaintiff argues the trial court abused its discretion in entering the stay order.

Section 2 — 619(a)(3) of the Code provides:

“Involuntary dismissal based upon certain defects or defenses. (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(3) That there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3).)

Section 2 — 619(a)(3), like its predecessor section 48(l)(c) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 48(l)(c)), is designed to promote orderly procedure by preventing a multiplicity of actions. (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255, 357 N.E.2d 534, 537.) While the statute speaks of “ ‘same parties’ ” for the “ ‘same cause,’ ” the parties and causes need not be identical; substantial similarity will suffice. (Gitchoff, 65 Ill. 2d at 255, 357 N.E.2d at 537, quoting Skolnick v. Martin (1964), 32 Ill. 2d 55, 56, 203 N.E.2d 428, 429.) The power of the trial court to stay proceedings is an attribute of its inherent power to control the disposition of cases before it. (In re Estate of Lanterman (1984), 122 Ill. App. 3d 982, 990, 462 N.E.2d 46, 51, citing Landis v. North American Co. (1936), 299 U.S. 248, 254, 81 L. Ed. 153, 158, 57 S. Ct. 163, 166.) Thus, trial courts are afforded discretion in issuing stay orders.

Plaintiff argues that under Landis, Couri had to establish hardship in going forward with the foreclosure action before a stay could be entered. We disagree. Landis involved Federal court actions, and its criteria for granting a stay have not been adopted in Illinois. Under section 2 — 619(a)(3), which has been determined to allow the entry of a stay order (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23), a movant must show only that there is another action pending between the same- parties for the same cause. This Couri has done. Two actions are the “same cause” under section 2 — 619(a)(3) when relief is requested on substantially the same set of facts. (Skolnick, 32 Ill. 2d at 56-57, 203 N.E.2d at 429-30.) The essential subject matter of the quiet title claim in the 1987 action and this foreclosure action is the same: the mortgage from Couri to plaintiff as assignee of South Side. Staying this foreclosure action will eliminate the need to relitigate the common issue in both cases; namely, the validity of the assignment to plaintiff by South Side.

Plaintiff also argues the stay order is too broad because the order does not indicate what circumstance terminates the stay order. Plaintiff contends further she may be forced to repeatedly go to court to file motions to vacate the stay order before the common issues are resolved, a consequence of a stay order criticized in Landis.

As indicated previously, the stay order states:

“PETER J. COURI or the Estate of ANTHONY T. LAHOOD may set 88 — CH—140 for appropriate hearing or trial not less than seven days following the resolution of the common issues.” (Emphasis added.)

The bystander’s report for the hearing on January 12, 1990, reflects the parties disagreed over how the common issues in these two cases may be resolved in the trial court; i.e., voluntary dismissal, directed verdict, summary judgment, et cetera. Further, the seven-day period was intended to make the termination of the stay order self-executing. The court ruled on January 12, 1990, that the termination of the stay order was not automatic and the seven-day period was reasonable. The court also noted that since the stay was a continuing matter, the parties may present any unforeseen matter concerning the stay to the court throughout the stay period.

We conclude the stay order sufficiently describes its duration and scope and does not unreasonably burden the plaintiff. We find Landis distinguishable for the reasons heretofore stated and, additionally, for the reason that the stay in Landis remained in effect throughout the lengthy appeal process. Here, the stay order was clearly intended to terminate after the common issues are resolved in the trial court.

For the foregoing reasons, the order of the trial court staying the proceedings in this cause is affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE ex rel. JIM EDGAR, Secretary of State, Respondent-Appellant, v. MICHAEL H. CORUM, Petitioner-Appellee.
    Third District
    No. 3—90—0122
    Opinion filed August 23, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Claudia Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Leonard Sacks, of Kankakee, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The Secretary of State appeals an order directing him to grant a judicial driving permit (JDP) to the petitioner, Michael H. Corum. We reverse.

The record shows that on February 15, 1985, the petitioner was placed on court supervision following a conviction for driving under the influence of alcohol. On October 21, 1989, police again arrested the petitioner for driving under the influence of alcohol. Since the petitioner refused alcohol testing and was not a first offender, the Secretary of State summarily suspended his privilege to operate a motor vehicle for two years (Ill. Rev. Stat. 1989, ch. 951/2, pars. 6— 208.1, 11-501.1).

The petitioner subsequently petitioned for a JDP. Following a hearing at which the petitioner and the State’s Attorney were present, the trial court entered an order requiring the Secretary of State to grant the petitioner a JDP. The Secretary declined to grant the JDP, however, because the petitioner was not a first offender. The trial court then resubmitted the order for a JDP. The Secretary appeals the resubmission of the order.

On appeal, the Secretary notes that the court may only grant JDPs to first offenders (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 206.1). He contends that the petitioner is not a first offender because he committed the current offense within five years of being placed on supervision for driving under the influence of alcohol. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 500; People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37, 543 N.E.2d 1088.) The Secretary therefore concludes that the trial court lacked authority to grant a JDP. The petitioner’s sole argument in response is that this argument was waived because the prosecutor did not present it to the trial court.

We decline to apply the waiver rule in this instance. The Secretary has broad authority to administer the laws regarding the conduct of drivers on the roads. (People v. Pine (1989), 129 Ill. 2d 88, 542 N.E.2d 711.) Section 6 — 206.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 206.1(d)) states that the Secretary shall review orders for judicial driving permits and, if he finds an order that does not comply with the Code, shall return it to the trial court with his reasons for not granting the permit. Application of the waiver principle would defeat the legislature’s intention that the Secretary have the power to review the granting of JDPs.

Further, where the trial court’s failure to comply with statutory requirements is readily apparent from the record, an error may be considered for the first time on appeal under a doctrine analogous to the plain error rule. (In re Whittenberg (1986), 143 Ill. App. 3d 836, 493 N.E.2d 662.) Here, the record clearly shows that the petitioner was not a first offender. The Secretary could therefore attack the order for the first time on appeal.

Accordingly, the judgment of the circuit court of Kankakee County is reversed.

Reversed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE JACKSON, Defendant-Appellant.
    Third District
    No. 3 — 89—0696
    Opinion filed October 3, 1990.

      James E. Swanson, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The trial court found the defendant, Eddie Jackson, guilty of speeding (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 601(b)), and ordered him to pay a fine of $300 plus costs. He appeals.

The record reveals that on June 13, 1989, the defendant was stopped by Peoria police officer Phillip Fisher and issued a speeding citation. Officer Fisher testified that his hand-held radar indicated the defendant’s vehicle was traveling 47 miles per hour. The posted speed limit for that area was 35 miles per hour. The defendant testified that he could not have been speeding because he had reduced his speed after his radar detector sounded about four to six blocks from where Officer Fisher was located.

The trial court subsequently found the defendant guilty of speeding. In sentencing him, the court considered as an aggravating factor the defendant’s use of a radar detector. It found that the only purpose of a radar detector was to aid a person in violating the law without being detected by the police. It then imposed a $300 fine plus costs.

The defendant filed a motion to reconsider, which the trial court denied. The court again noted the defendant’s use of a radar detector and also stated that given the defendant’s attitude such a fine was necessary to deter him from speeding in the future.

The defendant appeals, arguing that the trial court erred in considering the use of a radar detector as an aggravating factor. The State argues that this issue is waived since the defendant failed to object at the sentencing hearing and failed to raise it in his motion to reconsider. We choose to consider the issue as plain error under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).

Initially, we note that a trial judge’s decision with regard to sentencing must be accorded great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) At the same time, while a sentencing court is not bound by the usual rules of evidence, the factors it considers in aggravation and mitigation must be reasonable. People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.

The instant case raises an issue of first impression, i.e., whether a legal activity can be used to enhance a sentence. We find that it cannot.

The purchase and use of a radar detector is legal in Illinois. Although, as noted by the trial court, the purpose of a radar detector is to warn a motorist of nearby police radar, the legislature has not determined that such use is illegal. Therefore, it cannot be a factor in enhancing a defendant’s sentence.

We further find that the trial court appeared to give this factor considerable weight. We must therefore vacate the sentence and remand the cause for a new sentencing hearing. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

Given our resolution of this issue, it is unnecessary for us to consider the defendant’s second issue at this time.

The judgment of the circuit court of Peoria County finding the defendant guilty of speeding is affirmed. The defendant’s sentence is vacated and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; vacated in part and remanded.

HEIPLE, P.J., and BARRY, J., concur.


text:
    CENTRAL ILLINOIS LIGHT COMPANY, Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.-CENTRAL ILLINOIS LIGHT COMPANY, Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    Third District
    Nos. 3 — 90—0084, 3 — 90—0085 cons.
    Opinion filed August 23, 1990.

      Timothy W. Kirk, of Peoria, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Prairie State Legal Services, Inc., of Peoria (Kathleen Nolan, Special Assistant Attorney General, of Chicago, and Susan Dawson-Tibbits, of counsel), for respondents.
   JUSTICE GORMAN

delivered the opinion of the court:

Central Illinois Light Company (CILCO) appeals from two Illinois Commerce Commission (Commission) rulings. We affirm.

Teresa Petty was married to Joseph C. Petty on April 26, 1986, in Peoria County, Illinois. Teresa and Joseph separated in June 1987 and have maintained separate residences since that time. Joseph incurred a bill for utility services with CILCO in the amount of $521.23 for gas and electric service at 1004 W. McBean in Peoria, Illinois, from August 13, 1986, through May 13, 1987. Teresa never resided at the 1004 W. McBean address. She resided at Ill. W. Rice and 1008 W. Rice in Peoria, Illinois, from August 13,1986, through May 13, 1987.

Luella Burnside was married to Kevin A. Burnside on June 19, 1982, in Peoria County, Illinois. Luella and Kevin were separated in September 1983 and have since maintained separate residences. Kevin incurred a bill for utility services with CILCO in the amount of $1,635.24 at 1816 W. Butler, Peoria, Illinois, for gas and electric service from October 25, 1983, through May 2, 1984. Luella never resided at the 1816 W. Butler address. She resided at Warner Homes in Peoria, Illinois, during this time.

Kevin and Luella were divorced on August 26, 1987, in Peoria County, Illinois. The Burnsides’ judgment of dissolution of marriage requires Kevin to assume and pay all of the debts incurred by Luella for her necessary living expenses prior to the entry of that order.

Luella and Teresa applied for utility service with CILCO. CILCO refused to provide said utility service due to their failure to pay the past-due bills incurred by their husbands. Luella and Teresa each filed a verified complaint against CILCO with the Commission requesting that the Commission order CILCO to accept their applications for utility service and determine that they are not responsible for the outstanding bills incurred by their former or estranged husbands. CILCO maintained that under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1987, ch. 40, par. 1015) (Family Expense Act), Luella and Teresa were liable for the outstanding utility bills of their former or estranged husbands. The Commission entered orders in favor of Luella and Teresa. CILCO appeals.

One issue is raised: The liability of a wife under the Family Expense Act for a utility services debt incurred by her husband during a separation.

Section 15 (Ill. Rev. Stat. 1987, ch. 40, par. 1015) provides in pertinent part:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or if either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

The statute in question addresses two types of expenditures: expenses of the family and education of the children. It is the former that is at issue here. CILCO contends that electricity and natural gas service constitute “expenses of the family.” Citing Fortner v. Norris (1958), 19 Ill. App. 2d 212, 153 N.E.2d 433, CILCO argues that as these were expenses of the family, the Family Expense Act applies irregardless of the fact that the parties were separated at the time utility service was rendered.

Several courts have commented on what constitutes a “family expense” for purposes of the statute. In Louis Berman & Co. v. Dahlberg (1948), 336 Ill. App. 233, 83 N.E.2d 380, the court looked to whether the expenditure was incurred for, on account of, and to be used in the family and also to whether the expenditure was for an article used or kept for use in the family. In Carson Pirie Scott & Co. v. Hyde (1968), 39 Ill. 2d 433, 436, 235 N.E.2d 643, our supreme court stated that “family expenses” constituted “expenses for articles which conduce in a substantial manner to the welfare of the family generally and tend to maintain its integrity.” Most recently, in White v. Neeland (1983), 114 Ill. App. 3d 174, 176, 448 N.E.2d 649, this court stated that “the ultimate issue focuses upon who benefited from the expenditure.”

Applying these principles to the facts of the cases before us, it is apparent that the utility costs incurred by the husbands were not “family expenses.” The utility expenses were incurred after the parties had separated, in homes where the wives never resided. It cannot be said that the utility expenses contributed to the welfare of the family generally or that the expenses served to maintain the integrity of the family unit. Further, it is clear that it was the husbands alone who benefítted from the expenditures.

Accordingly, we find that the Commission properly held that Luella and Teresa were not liable for the outstanding utility bills of their former or estranged husbands pursuant to the Family Expense Act. The orders of the Illinois Commerce Commission are affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


text:
    ERNEST C. NICHOLS, Plaintiff-Appellee, v. MISSISSIPPI VALLEY AIRLINES, Defendant-Appellant.
    Third District
    No. 3 — 89—0796
    Opinion filed August 23, 1990.

      Robert P. Swanson, of Blackwood, Nowinski, Huntoon & Swanson, P.C., of Moline, for appellant.
    John Malvik, of Rock Island, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Ernest C. Nichols, brought an action pursuant to section 19(g) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) to register a final decision of the Industrial Commission (Commission). The trial court entered judgment on the Commission’s award and also awarded the plaintiff interest and attorney fees. The defendant, Mississippi Valley Airlines, appeals.

The record shows that an arbitrator found that the plaintiff had suffered injuries arising out of and in the course of his employment with the defendant and awarded him temporary total disability benefits plus $5,065.90 in medical expenses. The defendant subsequently petitioned the Industrial Commission to review the arbitrator’s award, alleging that the plaintiff’s injuries had not arisen out of and in the course of his employment. The Industrial Commission affirmed the arbitrator’s award.

The defendant thereafter paid the plaintiff $18,900, which represented the total amount of the arbitrator’s award minus the medical expenses and interest. The defendant deducted the medical expenses because the plaintiff’s former employer had paid them prior to the arbitration hearing. The plaintiff subsequently filed the instant application for judgment on the Industrial Commission’s award, seeking to recover the unpaid portion of the award. The trial court entered judgment on the award and also awarded the petitioner interest and attorney fees.

The defendant argues on appeal that the trial court erred in finding that it was required to pay the plaintiff’s medical expenses. It contends for the first time that since those expenses were already paid by the plaintiff’s former employer, it should not be required to pay them again. We find, however, that the defendant is precluded from raising this issue in an appeal from a section 19(g) proceeding.

Section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) provides in relevant part that “either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court *** whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the. person in whose favor the judgment is entered ***.”

The trial court’s inquiry under section 19(g) is limited to a determination of whether the requirements of the section have been met. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 383 N.E.2d 207.) The court may not review the Commission’s decision or otherwise construe the statute even if the award appears too large on its face. (Konczak v. Johnson Outboards (1982), 108 Ill. App. 3d 513, 439 N.E.2d 16.) Therefore, absent fraud or lack of jurisdiction, a party may not obtain review of the Commission’s award in the course of a section 19(g) proceeding. Konczak, 108 Ill. App. 3d at 517, 439 N.E.2d at 19.

In the instant case, the defendant is seeking review of the Commission’s award of medical expenses. Besides the fact that it is generally precluded from raising issues for the first time on appeal, it is also precluded from raising this particular issue in the context of a section 19(g) proceeding. The exclusive means to contest the accuracy or validity of a Commission award is through a proceeding under section 19(f) of the Act. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f); Konczak, 108 Ill. App. 3d at 517, 439 N.E.2d at 19.) Therefore, we cannot review the Commission’s award, but rather can only look at whether the trial court erred in entering judgment on that award. We find that the court did not err in concluding that the requirements of section 19(g) had been met. Accordingly, the court properly entered judgment on the award.

The defendant also argues on appeal that the trial court erred in ordering it to pay the plaintiff’s attorney fees. The defendant contends that it should not be required to pay the fees since the award was disputed. We find, however, that the award was not the subject of a bona fide dispute.

As previously stated, the defendant could not contest the validity of the Commission’s award in a section 19(g) proceeding. Therefore, the award was not the subject of a bona fide dispute in the trial court. Moreover, the trial court is authorized under section 19(g) of the Act to award attorney fees when the employer has refused to pay the compensation awarded. Since the defendant failed to pay the Commission’s full award, the trial court could properly assess attorney fees against it.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. PHILLIP DILLARD, Petitioner-Appellant.
    Third District
    No. 3 — 89—0463
    Opinion filed September 27, 1990.

      Timothy M. Gabrielsen, of State Appellate Defender’s Office, of Springfield, for appellant.
    Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, and Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Phillip Dillard, appeals from the dismissal of his petition for post-conviction relief. The petition was based on an allegation of ineffective assistance of counsel. The petitioner contends on appeal that dismissal was improper because the issues contained in the petition could not have been raised on direct appeal.

Following a jury trial, the petitioner was convicted of home invasion, rape, and armed robbery. The trial court sentenced him to concurrent terms of 60 years’ imprisonment. After his conviction was affirmed on direct appeal, People v. Dillard (1985), 136 Ill. App. 3d 318, 483 N.E.2d 634, the petitioner filed a petition for post-conviction relief. The trial court granted the State’s motion to dismiss that petition, but this court reversed that ruling on the ground that appointed post-conviction counsel rendered inadequate assistance in his representation of the petitioner. On remand, the State again moved for the petition’s dismissal. New counsel was appointed, and the trial court again granted the State’s motion to dismiss the petition. The petitioner appeals.

The petitioner asserts that he was denied his constitutional right to effective assistance of counsel. In support of the allegation of incompetency, the petitioner stated that his trial counsel failed to submit crucial alibi evidence and failed to allow the petitioner to testify on his own behalf.

The State filed a motion to dismiss the petition, arguing that the issues were waived because they could have been raised on direct appeal. The trial court dismissed the petition without an evidentiary hearing.

The issue on appeal is whether the petitioner was entitled to an evidentiary hearing. In order to obtain a hearing under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.), a petitioner must make a substantial showing that his constitutional rights have been violated. The burden is on the petitioner to set forth the violations and support the allegations by affidavits, records, or other evidence containing specific facts. (People v. Graham (1977), 48 Ill. App. 3d 689, 363 N.E.2d 124.) Mere conclusory allegations that constitutional rights have been violated are insufficient to entitle the petitioner to an evidentiary hearing. People v. Hysell (1971), 48 Ill. 2d 522, 272 N.E.2d 38.

In assessing the sufficiency of the allegations, if the allegations and supporting documents were true and would establish a constitutional violation, the trial court must hold a hearing to determine the actual facts. People v. Edmonds (1979), 79 Ill. App. 3d 33, 398 N.E.2d 230.

At trial, evidence was presented showing that the petitioner’s fingerprints were found in the complainant’s house. In addition, the complainant testified as to her recollection of this incident, but she could not make a positive identification of her assailant. The petitioner contends that had he testified he could have explained why or how his fingerprints were found in the complainant’s home. The petitioner asserts that he entered the complainant’s residence on two prior occasions, once to purchase a record player at a garage sale and another time at the complainant’s request. The petitioner contends that his trial counsel could have discovered this information had he adequately prepared a defense.

This court has held defense counsel ineffective for failing to subpoena witnesses and evidence tending to corroborate the defense presented at trial. (People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701.) Whether a failure to investigate is incompetence depends upon the value of the evidence and the closeness of the case. People v. Jarnagan (1987), 154 Ill. App. 3d 187, 506 N.E.2d 715.

In Corder, defense counsel failed to introduce into evidence physical evidence or testimony that would have corroborated the defendant’s trial testimony and exonerated him. The State’s primary witness, an undercover police officer at the alleged drug purchase, testified that the heroin seller was clean shaven. Witnesses could have been called to testify that the defendant wore a beard before, during, and after the time of the offense, and a driver’s license photo, taken only six days later, showed the defendant to have been bearded.

In the instant case, the petitioner was prepared to testify that he was in the complainant’s apartment on two prior occasions. The petitioner contends that he bought a few items from the complainant at her garage sale and that the items, located in his residence in Peoria, were accessible to his ex-wife and that she could have provided them to defense counsel. Such evidence, had it been introduced at trial, may have explained why the petitioner’s fingerprints were found in the complainant’s apartment. Further, such evidence may have impeached the complainant’s testimony that she did not know the petitioner prior to this incident. In a case based primarily on circumstantial evidence, defense counsel’s failure to investigate this evidence constitutes ineffective assistance of counsel.

The petitioner also argues that appointed counsel’s performance failed to comply with the statutory duties imposed upon counsel under the Post-Conviction Hearing Act and Supreme Court Rule 651(c). Supreme Court Rule 651(c) provides in relevant part:

“The record *** shall contain a showing *** that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, *** and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 107 Ill. 2d R. 651(c).

Some evidence was offered by the State to show that appointed post-conviction counsel consulted with the petitioner as required by Rule 651(c). However, without detailing such evidence, we believe it is insufficient to show reasonable consultation and, in fact, any efforts made at consultation were minimal.

In cases such as this, unless proper representation is afforded, the appointment of an attorney under the Post-Conviction Hearing Act is an empty formality. (People v. Garrison (1969), 43 Ill. 2d 121, 251 N.E.2d 200.) In the instant case, we do not believe that the evidence was sufficient for the trial court to have found that the petitioner was afforded adequate representation. Accordingly, we conclude that the trial court erred in granting the State’s motion to dismiss the petition for post-conviction relief. The judgment of the circuit court of Peoria County is reversed, and this cause remanded for the appointment of new counsel and for an evidentiary hearing.

Reversed and remanded.

HEIPLE, P.J., and GORMAN, J., concur.