author: JUSTICE GREEN

text:
    JOHN J. GREENAN II, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF SPRINGFIELD, Defendant-Appellee.
    Fourth District
    No. 4—90—0612
    Opinion filed March 28, 1991.
    Modified on denial of rehearing June 12, 1991.

      Gregory P. Sgro, of Sgro & LaMarca, of Springfield, for appellant.
    Brown, Hay & Stephens and Edward G. Coleman, both of Springfield (Edward J. Cunningham, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, John Greenan, a former officer of the Springfield police department, appeals an order of the circuit court of Sangamon County affirming the decision of the Board of Trustees (Board) of the Police Pension Fund of Springfield (Fund) denying his application for a duty-related disability pension. We reverse and remand to the Board with directions.

Plaintiff became a Springfield police officer and member of the police pension fund on June 2, 1980. On March 17, 1987, his left knee was injured while subduing a suspect resisting arrest. Shortly thereafter, plaintiff was put on light duty, with no assurance this light duty would be permanently available. Plaintiff alleged the pain in his knee continued, and arthroscopic surgery was performed on August 18, 1987. The problems with his knee continued, and on January 25, 1989, plaintiff applied for a line-of-duty disability pension under section 3— 114.1 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1989, ch. 108½a, par. 3—114.1). Sometime during 1987 plaintiff applied for workers’ compensation benefits.

On March 27, 1989, the Board heard plaintiff’s application for a disability pension. The next day, the Board informed plaintiff by letter that it denied his application because of variance in the physicians’ opinions, and lack of an objective finding of injury. Plaintiff sought judicial review of this decision on June 28, 1989. (Greenan v. Board of Trustees of the Police Pension Fund (Cir. Ct. Sangamon Co.), No. 89 — MR—90.) Plaintiff took a leave of absence from the police department on April 3, 1989, and accepted a position with the Secretary of State as a securities investigator.

On July 18, 1989, plaintiff settled his workers’ compensation claim with the city. As part of this settlement, plaintiff agreed to resign his position with the police department. The city issued a separation report for the plaintiff on August 7, 1989, noting he had voluntarily resigned. Plaintiff did not sign this report. On September 8, 1989, the city’s corporation counsel informed plaintiff he had not yet tendered his resignation, and requested a written resignation. Whether plaintiff ever tendered his resignation is not clear from the record.

On August 29, 1989, in case No. 89 — ME—90, the circuit court, by letter opinion, indicated that it found the Board’s decision as against the manifest weight of the evidence, and directed plaintiff’s counsel to prepare a written order. No written order was entered. The Board, however filed a motion to remand, allowed on October 17, 1989, “specifically and solely for the limited fact finding” regarding plaintiff’s resignation. A second Board hearing was held on December 14, 1989, and the Board introduced evidence showing plaintiff had resigned from the police department as part of the settlement of his workers’ compensation claim with the city. Also introduced was the separation report for plaintiff issued by the city.

Although the circuit court remanded the cause solely for fact-findings regarding plaintiff’s resignation, the Board passed a resolution on April 27, 1990, denying plaintiff’s disability pension on the ground that he resigned from the police force and was therefore no longer a “police officer” under the Code. The circuit court considered this additional evidence in entering its order on August 28, 1990, which determined that plaintiff was not entitled to a disability pension as a matter of law because he had resigned from the force and was no longer a “police officer” within the meaning of section 3 — 114.1 of the Code. Accordingly, the circuit court affirmed the previous denial of benefits, although for different reasons. Plaintiff appeals this order of the circuit court.

The Fund, established by article 3 of the Code, provides a disability pension for injured police officers. Section 3 — 114.1 states, in relevant part:

“Disability pension — Line of duty. If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement. A police officer shall be considered ‘on duty’, while on any assignment approved by the chief of the police department of the municipality he or she serves, whether the assignment is within or outside the municipality.
If a police officer on disability pension dies while still disabled, the disability pension shall continue to be paid to his or her survivors in the sequence provided in Section 3 — 112.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—114.1.)

The Code imposes obligations on those receiving a disability pension to submit to medical exams and report for duty in times of emergency. Section 3 — 116 of the Code states, in part:

“Examination and emergency service. A police officer whose duty is suspended because of disability may be summoned to appear before the board, and to submit to an examination to determine fitness for duty. The officer shall abide by the board’s decision. If a police officer retired for disability, except one who voluntarily retires after 20 years’ service, is found upon medical examination to have recovered from disability, the board shall certify to the chief of police that the member is no longer disabled and is able to resume the duties of his or her position. In case of emergency, a disabled police officer may be assigned to and shall perform such duty without right to compensation as the chief of police or chief officer of the municipality may direct.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—116.)

The statute defines “police officer” as:

“Any person who (1) is appointed to the police force of a police department and sworn and commissioned to perform police duties; (2) is found upon examination of a duly licensed physician or physicians selected by the board to be physically and mentally fit to perform the duties of a police officer; and (3) within 3 months after receiving his or her first appointment, and if reappointed, within 3 months thereafter, makes written application to the board to come under the provisions of this Article.” Ill. Rev. Stat. 1989, ch. 108½, par. 3—106.

The Board argues since plaintiff resigned he is no longer a police officer under the Code and is therefore not entitled to a disability pension. The Board further argues an individual must remain employed as a police officer the entire period he or she receives a disability pension, as the legislature never intended to allow a “non-policeman” to draw a pension. In support, the Board cites the obligations of section 3 — 116, to submit to medical exam and be subject to recall for emergency duty. Since plaintiff is no longer a police officer, the Board argues he is under no obligation to perform these duties, and to award plaintiff a pension would give him all the benefits of the pension with none of its obligations.

Plaintiff counters that the Code only requires that he be employed as a police officer at the time of application for benefits, and subsequent changes in his employment status are meaningless. Although he has resigned, he argues he is still obligated to submit to physical exams and is subject to recall to duty in times of emergency. He argues the Board’s jurisdiction does not arise from his status as a police officer, but exists by virtue of his receiving pension benefits — if he fails to comply with the obligations of section 3 — 116, the Board is authorized to terminate his pension benefits. Plaintiff further argues that to require an individual to remain an officer the entire time he or she receives a disability pension would allow the police department to terminate an individual’s pension benefits by discharging him or her. Pension benefits would be terminated whether the officer was discharged with or without good cause, and this could lead to abuse. Plaintiff argues that to require an individual to remain employed as a police officer the entire time he or she is on a disability pension makes no sense given that section 3 — 114.1 states: “If a police officer on disability pension dies while still disabled, the disability pension shall continue to be paid to his or her survivors ***.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—114.1.) If a person receiving a disability pension dies, then he or she is no longer a “police officer,” yet the statute provides the pension continues to be paid.

Whether an applicant for a disability pension must remain employed as a police officer beyond the time of application for those benefits is not explicitly addressed by the Code. It is an issue of first impression in this district, and one rarely addressed in this State. We begin our analysis by noting several decisions interpreting article 4 of the Code, pertaining to fire fighters’ pensions, which is similar in many respects to article 3, at issue in the instant case. (Ill. Rev. Stat. 1989, ch. 108½, par. 4—101 et seq.) In Freberg v. Board of Trustees (1970), 128 Ill. App. 2d 369, 262 N.E.2d 22, plaintiff, a fire fighter, was discharged because he had committed acts of indecent exposure. Four months later he applied for a disability pension on the basis he was emotionally disabled and unable to return to work. The court construed the Code to require an individual be employed as a fire fighter at the time he or she applies for benefits. Freberg, 128 Ill. App. 2d at 374, 262 N.E.2d at 25.

Section 4 — 112 of the Code mandated that upon proof of recovery, a fireman’s disability pension benefits cease, and required the fire chief or marshal to reinstate him into active service. (Ill. Rev. Stat. 1969, ch. 108½, par. 4—112.) Since that plaintiff had been discharged, reinstatement would be impossible. (Freberg, 128 Ill. App. 2d at 374, 262 N.E.2d at 25.) The court noted that section 4 — 113 provided an individual on disability pension the right to apply for a regular pension because that individual could credit the time spent on disability toward the 20 years needed for the regular retirement pension. The combined effect of sections 4—112 and 4—113 would “place [plaintiff] in a special classification wherein he would receive the benefits of these sections, without being bound by the obligations.” (Freberg, 128 Ill. App. 2d at 374, 262 N.E.2d at 25.) The court held the statutory definition of fireman to include “a fireman on active duty, one on inactive duty, one on a leave of absence, one suspended, or one retired, but not an individual who has been discharged.” (Emphasis added.) Freberg, 128 Ill. App. 2d at 374, 262 N.E.2d at 25.

The supreme court addressed this same issue in Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 521 N.E.2d 923, and upheld the view that the statutory scheme requires that an individual must be employed as a fire fighter at the time of application for disability pension benefits. In Di Falco, a fire fighter applied for a disability pension a year after he was discharged. Plaintiff argued he need not be a fire fighter at the time of application, but need only have been employed as a fire fighter at the time of injury. The supreme court disagreed, stating that while there was no statutory provision requiring plaintiff to be a fire fighter at the time of application, various code provisions indicated this was the legislature’s intent. Di Falco, 122 Ill. 2d at 30-31, 521 N.E.2d at 927.

The statute defined “firefighter” as a person employed by a city in its fire service, and the court held a discharged fire fighter was not so employed. (Di Falco, 122 Ill. 2d at 27-28, 521 N.E.2d at 925-26.) The court held section 4—112 imposed a duty to submit to annual physical exams, and provided the pensioner an absolute right to return to duty if and when he recovers from the disability. A discharge made this reinstatement to active duty impossible. The court reasoned that section 4 — 112 indicates “disability pensions are to be given only to fire fighters who would still be employed as fire fighters if not for their disability” (Di Falco, 122 Ill. 2d at 29, 521 N.E.2d at 926), thereby implicitly approving the view earlier stated in Freberg. Finally, the court held section 4 — 113, which permitted a fire fighter to “elect to retire” from service, could not apply to a fire fighter already discharged since it was impossible for that person to retire. Di Falco, 122 Ill. 2d at 29, 521 N.E.2d at 926.

It is important to note that police officers on disability pensions are not subject to recall to active duty upon recovery from their disability. This is one instance where article 3 of the Code differs from article 4 on fire fighters’ pensions. Section 3 — 116 of the Code does not mandate reinstatement to active service upon recovery of disability, but only requires the Board “certify to the chief of police that the member is no longer disabled and is able to resume the duties of his or her position.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—116.) This certification does not require the pensioner be returned to duty, nor does it provide an absolute right to his or her old position. In contrast, section 4—112 of the Code states that when a fire fighter recovers from disability, the “firefighter shall report to the marshal or chief of the fire department, who shall thereupon order reinstatement into active service.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 108½, par. 4—112.) Thus, the mandatory reinstatement to active duty which Di Falco and Freberg found was prevented by a fire fighter’s discharge does not exist in the instant case.

The Second District Appellate Court has specifically held the right to a disability pension was not severed by a resignation tendered after the police officer applied for pension benefits. (Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 485 N.E.2d 871.) One month after applying for a not-on-duty disability pension, he tendered his resignation. In his resignation, plaintiff specifically purported to preserve any pension rights based on his pension application. Hahn, 138 Ill. App. 3d at 207-08, 485 N.E.2d at 872.

The court began its analysis by noting police and fire fighters’ pensions “are to be liberally construed in favor of those to be benefit-ted.” (Hahn, 138 Ill. App. 3d at 211, 485 N.E.2d at 875.) Following the definition of “fireman” in Freberg, the Hahn court held the phrase “ ‘any policeman’ ” in section 3—114.2 of the Code to include a retired police officer, “inasmuch as the statute itself envisions that the officer’s condition will necessitate ‘suspension or retirement.’ ” Hahn, 138 Ill. App. 3d at 212, 485 N.E.2d at 875, quoting Ill. Rev. Stat. 1981, ch. 108½, par. 3—114.2.

As in the instant case, the pension board in Hahn argued the provisions in the Illinois Pension Code impose obligations on the pensioner, subjecting him to recall for emergency duty and requiring him to submit to medical exams. The board argued plaintiff’s retired status made performing these obligations impossible. The court rejected this argument, stating where “the statute grants the board and chief of police power to summon a pensioned officer, for examination and emergency duty, respectively, it is clear that the officer’s retirement status cannot abrogate his duty to respond.” (Hahn, 138 Ill. App. 3d at 213, 485 N.E.2d at 876.) Instead, the duty to respond to the board’s request for physical exams and the police chief’s request for an emergency call up is based on the pensioner’s right to receive funds — if the pensioner refuses to perform these obligations, then the pension benefits may be terminated. Hahn, 138 Ill. App. 3d at 213, 485 N.E.2d at 876.

The Code and the decisions cited provide no hard and fast rules for determining whether plaintiff severed his right to a disability pension by resigning. Plaintiff argues Freberg and Di Falco hold the only critical time is that of application, and subsequent changes in employment status are irrelevant. However, Freberg and Di Falco did not examine this question, and only ruled on the effect of an applicant’s employment status at the time of application. The Board argues these cases hold that an individual must remain employed as a police officer the entire time he or she receives disability pension benefits. Again, Di Falco and Freberg do not so hold. While the Board cites cases indicating an individual on disability remains an officer, these cases do not hold he or she must remain an officer to receive a disability pension. Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 449 N.E.2d 115; Peifer v. Board of Trustees of the Police Pension Fund (1976), 35 Ill. App. 3d 383, 388-89, 342 N.E.2d 131, 135-36.

We need not determine whether, in all cases, an individual must remain employed as a police officer beyond the time he or she applied for benefits. We hold that under the particular facts of this case, plaintiff’s resignation did not sever his rights to the disability pension: plaintiff was a police officer at the time of injury and at the time he applied for a disability pension. In addition, we find it significant that plaintiff was an officer on March 27, 1989, when the Board heard plaintiff’s application.

We agree with Hahn and hold that plaintiff continues to be bound by the obligations imposed by section 3 — 116 of the Code: to submit to medical examinations and be subject to recall in times of emergency. He has indicated he is ready, willing, and able to comply with all the obligations imposed by the Code. These obligations do not arise from plaintiff’s employment status with the police department but rather from the Board’s jurisdiction over one receiving disability pension benefits. If plaintiff refuses to comply with the Code’s provisions, the Board may terminate his benefits.

The Board argues the Code confers no discretionary powers upon it. However, it acknowledges the “pension fund is a public trust and must be administered by its trustees as a sacred fund for the benefit of all of its eligible members as the legislature has prescribed its terms and conditions.” It seems inconceivable that as trustees of this Fund the Board would not have implicit powers to terminate pension benefits of pensioners who refused to comply with the obligations imposed by section 3 — 116. Indeed, at oral argument, counsel for the Board stated it would terminate the benefits of a pensioner who refused to appear for a medical examination.

We bear in mind that the Code must be liberally construed in favor of pensioners. (Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 521, 502 N.E.2d 718, 720.) Our holding is limited to the particular facts of this case, where plaintiff was a commissioned police officer at the time of injury, application for and hearing on his disability pension.

Even though plaintiff’s resignation from the police force does not bar his pension rights, he would not have been entitled to a pension if he was not disabled. The circuit court in its letter opinion of August 29, 1989, indicated that the Board’s initial decision denying plaintiff’s disability pension because of a variance in the physicians’ opinions and a lack of an objective finding of injury, was against the manifest weight of the evidence. However, that determination was not incorporated in an order as the case was then remanded to the Board solely for fact-finding regarding plaintiff’s resignation. We remand to the circuit court with directions to make a determination as to whether the Board’s March 27, 1989, decision was against the manifest weight of the evidence, and to enter judgment accordingly.

Reversed and remanded with directions.

SPITZ and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE ex rel. RICHARD L. BROCH, State’s Attorney of Douglas County, Plaintiff-Appellant and Cross-Appellee, v. FLOYD L. HOGG et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 4—90—0593
    Opinion filed April 12, 1991.
    Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Michael K. Radloff, of Ryan, Cini & Bennett, of Mattoon, for appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The Illinois Supreme Court last addressed the issue of vehicle forfeiture under section 505(a)(3) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(3)) in People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 537 N.E.2d 748, wherein the court wrote the following:

“The State asserts that the mere existence of a controlled substance on the person of a vehicle occupant subjects the vehicle to forfeiture. However, [defendant] not only possessed the drug on his person while in the vehicle, but used the vehicle to hide the cocaine from the police [by emptying a packet of cocaine on the floor of the vehicle]. Because we are not confronted with the precise factual situation posed by the State, we decline to address the argument.” Buick, 127 Ill. 2d at 378, 537 N.E.2d at 750.

The issue on appeal in this case is that “precise factual situation posed by the State” that the supreme court declined to address in Buick. For the reasons that follow, we hold that the State’s assertion is correct.

I. Facts

In May 1990, the State’s Attorney of Douglas County filed a complaint for forfeiture under section 505(a)(3) of the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(3)). In June 1990, that complaint was amended, and defendant filed his answer. A hearing thereon was conducted in August 1990. The evidence presented at that hearing is summarized as follows.

Illinois State Trooper Greg Lindenmulder testified that on April 17, 1990, about 1:30 p.m., he observed a black Pontiac Fiero heading northbound on Interstate 57. Every window in the vehicle was tinted. He stopped the car; defendant, Floyd Hogg, was its driver and sole occupant. Lindenmulder escorted defendant back to the squad car and wrote him a warning ticket regarding the tinted windows. Lindenmulder asked defendant where he was headed, and Hogg replied that “[h]e was going up north to visit his sister’s [sic] and that he’d be there for a couple of days.” Noticing that defendant had no luggage with him, Lindenmulder asked defendant if he had any weapons in his vehicle, and defendant replied, “No.” Lindenmulder then asked defendant if he had any drugs in his vehicle. Lindenmulder testified that defendant responded that his girlfriend had the vehicle earlier and some friends in the vehicle, so he was not sure what was in the vehicle. Lindenmulder testified that defendant then told him that he could look in the vehicle if he wished.

After the paperwork regarding the warning ticket had been completed, Lindenmulder and defendant walked up to the passenger side of the Pontiac, and defendant opened the passenger side door. A brown bottle containing a white powdery substance fell out and rolled on the ground. (A forensic scientist employed by the State Police testified at the August hearing that this bottle did not contain any controlled substances; instead, it contained a white, powdery sugar called inositol, which is commonly used as a cutting agent for cocaine and other controlled substances.)

Lindenmulder then looked inside defendant’s vehicle and observed a drinking straw approximately 1% inches in length on the floor on the passenger side. He picked it up, peered inside, and was able to observe therein a white powdery residue. Lindenmulder testified that he looked inside the straw because, based upon his experience as a police officer, he knew that a straw of this kind is often used “to snort cocaine.” Lindenmulder then gave the straw to Trooper Cessna, who had recently arrived as a back-up officer. Cessna performed a field test on the straw, which was positive for cocaine.

Lindenmulder then advised defendant that he had found the straw, that it contained cocaine, and that defendant was under arrest. Lindenmulder then searched defendant but found nothing. During the search, defendant was asked to take his shoes off, and he sat in the front seat of the squad car to do so. He placed his hand inside his sock, and when he pulled his hand out, it was cupped, with his fingers closed in a fist. Defendant then placed his hand inside his jacket pocket. Lindenmulder reached in the jacket, grabbed defendant’s hand, pulled it out of the jacket pocket, and opened defendant’s fingers. He found a brown vial with a white powdery substance. (The forensic chemist testified at the August hearing that she tested the white powdery contents of this brown vial and found that the contents weighed 1.26 grams and contained cocaine.)

At the Douglas County jail, defendant’s wallet was removed from his pants pocket, and the money was taken out and counted. Defendant had a total of $990 in United States currency in his wallet. Among the cash, Lindenmulder found a $2 bill that had a white powdery residue visible on its surface. Lindenmulder thought the substance might be cocaine. (The forensic chemist subsequently determined that the powder on the $2 bill contained cocaine.)

Defendant testified that he was a coal miner and that he also repaired boats. He stated that the money he was carrying came from two workers’ compensation checks he had recently cashed. Defendant denied that any of the money came from selling cocaine or that he was going to use any of it to buy cocaine. Defendant maintained that he usually carries large amounts of money with him because he was a “wildcatter,” a person who buys boat motors and trailers and repairs them. He presented payment stubs from two workers’ compensation checks, one dated April 10, and the other dated March 22. Defendant claimed, however, that he usually receives these checks later than the dates shown thereon.

Defendant admitted having cocaine in his possession, but denied using the $2 bill or the straw to ingest cocaine. Instead, defendant explained that he used the top of the brown vial in which the cocaine was found “for snorting cocaine.” Defendant did not recall if he had used any cocaine on the day he was arrested. Defendant had placed the vial with the cocaine in his sock when he left his home that morning: “That’s where I carry it.”

Defendant was emphatic that he did not use cocaine while he was in his car, explaining, “It’s a powdery substance; any kind of wind will blow it away. You just don’t do that.” Defendant denied using his car to sell cocaine, maintaining that he never sold cocaine.

Defendant said he paid $100 for the cocaine in his possession when he was arrested. He further claimed to have had that cocaine in his possession for “probably a month and a half.” Defendant denied ever seeing the straw before it was removed from the floor of his car. He also testified that he had no particular reason for possessing the $2 bill that had the cocaine residue upon it.

Defendant denied that he had the inositol to “cut” the cocaine, explaining that he used it for iced tea, “for people that [sic] are fat like me.” When asked why the inositol was in a little plastic container, defendant stated the following:

“That’s what you take it in when you go into a store or something. When you go in to buy ice tea or something instead of using sugar off the table, you just reach up and do it. Pour it in.”

In the State’s complaint for forfeiture, the State sought an order that both defendant’s vehicle and his $990 in cash be declared forfeited. After hearing evidence and arguments of counsel, the court took the matter under advisement. It subsequently entered an order (a) granting the State’s request that the $990 be forfeited, and (b) denying the State’s request for forfeiture with regard to defendant’s automobile. The only explanation provided by the trial court for its denial of the forfeiture of defendant’s vehicle is the following: “That possession of 1.2 grams of cocaine in a vehicle does not subject said vehicle to forfeiture as facilitating possession of cocaine.”

The State appeals the denial of its petition to forfeit defendant’s automobile. Defendant cross-appeals the forfeiture of his $990 in United States currency.

II. State’s Request To Forfeit Defendant’s Automobile

In Buick, the supreme court analyzed the statutory provisions regarding forfeiture of automobiles and wrote the following:

“Section 505(a)(3) of the Act provides that a vehicle is subject to forfeiture if it is ‘used *** in any manner to facilitate any violation of [the] Act.’ As the appellate court and both parties correctly note, the key word in the statute is ‘facilitate.’ Facilitate means ‘[t]o make easier or less difficult.’ (Black’s Law Dictionary 531 (5th ed. 1979).) Therefore, if the vehicle, with knowledge and consent of the owner, is used in any manner to make possession of the controlled substance easier or less difficult, the vehicle is subject to forfeiture.
In this case, it is undisputed that [defendant] emptied the packet of cocaine onto the floor of his vehicle in order to hide it from the view of the police. Having determined that the cocaine was hidden on the floor of the vehicle, the inescapable conclusion is that the vehicle was used, unsuccessfully in this case, to make [defendant’s] continued possession of the drug easier. Consequently, his vehicle is subject to forfeiture under section 505(aX3) of the Act.
* * *
[Defendant’s] final contention concerns the appropriate standard of review. [Defendant] contends that we may only overturn the trial court’s ruling if it is against the manifest weight of the evidence. However, because the facts are undisputed and the decision turns only on the proper interpretation of the statute, we may review the trial court’s ruling as a matter of law.” Buick, 127 Ill. 2d at 377-78, 537 N.E.2d at 750.

In the present case, the only way defendant could be said to have used his vehicle to hide the cocaine from the police (as the State in fact argues) is by having all of the windows tinted. However, because the vial containing cocaine was located in the defendant’s sock, the additional privacy provided by the tinted windows seems rather insignificant. For that reason, as we stated at the beginning of this opinion, we believe this case presents the factual situation which the supreme court in Buick declined to address, namely, the State’s assertion that the mere existence of a controlled substance on the person of a vehicle occupant subjects the vehicle to forfeiture.

In People ex rel. Daley v. 1986 Honda, VIN JHMB-B7230GC040153 (1989), 182 Ill. App. 3d 322, 537 N.E.2d 1077, decided after Buick, the court considered a vehicle forfeiture action in which the driver of the vehicle in question possessed less than one gram of cocaine in her purse when her car was stopped. (Honda, 182 Ill. App. 3d at 324, 537 N.E.2d at 1078.) The trial court found the vehicle was not subject to forfeiture because the cocaine was concealed in the driver’s purse and the vehicle did not facilitate the concealment or possession of the drug. (Honda, 182 Ill. App. 3d at 324, 537 N.E.2d at 1080.) Citing Buick, the appellate court reversed and wrote the following:

“The words of the statute must be read in a reasonable, commonsense manner. [Citation.] Under the plain language of the forfeiture statute, [defendant] used her car ‘to transport, or in any manner to facilitate,’ possession of the cocaine, and then pled guilty to this ‘violation of [the] Act.’ Ill. Rev. Stat. 1987, ch. 56½, par. 1505(a)(3).
The term ‘facilitate’ in section 505(aX3) means to use the vehicle ‘in any manner to make possession of the controlled substance easier or less difficult.’ [Citation.] We find that the vehicle here was used to make possession of the cocaine easier. We note that the court in People v. 1946 Buick declined to address the issue of a vehicle occupant’s mere possession of drugs on his person, because in 1946 Buick the driver used the car to hide the cocaine from the police by emptying the packet of cocaine onto the car floor when stopped for a traffic violation. Similarly, [defendant] just as deliberately, and unsuccessfully, sought to intentionally conceal the drugs, not on her person, but within the car.
We, of course, follow the holding of People v. 1946 Buick. We also adhere to the holding of this court in People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592. In the Miller case, forfeiture was ordered even where .08 grams of cocaine dropped accidentally from the driver’s pocket as he stepped out of a car stopped for failing to heed a stop sign.
* * *
*** [Defendant] was transporting the cocaine from her point of origin to her destination. A sufficient bond existed between the use of the car and the criminal offense. She smoked marijuana as she drove, carrying the cocaine in her purse and more marijuana in the glove compartment. [Defendant] apparently believed the car provided her with a dimension of privacy which would permit her to use, possess and transport controlled substances on the public streets. The car was not so far removed from the crime charged to be unaffected by the illegal possession. [Citation.]
A person carrying drugs may use a car to be more elusive, move about at will, travel further, and escape observation, detection and capture. [Citation.] A car facilitates the transportation of even small quantities of controlled substances to a great degree when compared to the dangers faced when riding on public transportation or walking. One can arrive and depart quickly, and can make capture more difficult where, e.g., the police have received a tip that the individual would be carrying illegal drugs.” Honda, 182 Ill. App. 3d at 324-26, 537 N.E.2d at 1078-79.

Defendant in the present case attempts to distinguish Honda from his circumstances based on his claim that, in Honda, the defendant was concealing cocaine in her purse; in the present case, defendant concealed the cocaine in his sock. We do not find that distinction persuasive. We note that in both instances, the car provided essentially the same “dimension of privacy.”

In People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592, the forfeiture case cited in Honda, the court wrote the following:

“While there may be some question as to whether an automobile facilitates the actual possession of a very small amount of a controlled substance which is carried on the person of the driver, to the extent the automobile adds a dimension of privacy, however, it does facilitate the possession.” Miller, 89 Ill. App. 3d at 149-50, 411 N.E.2d at 593.

We acknowledge that defendant is correct in his argument that the court in People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, 470 N.E.2d 46, seemed to backtrack somewhat on the holding in Miller. In Barra, a search of the purse of the driver of a van revealed a small plastic bag containing several pills, which were later determined to contain a controlled substance. (Barra, 128 Ill. App. 3d at 129, 470 N.E.2d at 47.) The appellate court reversed the trial court’s forfeiture order and distinguished Miller as follows:

“In Miller the contraband was located in the defendant’s pocket. The contraband fell from the defendant’s pocket, thus demonstrating that the defendant’s pocket was neither a secure nor a secret place. The vehicle in Miller thus afforded the defendant exclusive means of privacy. In the instant case, on the other hand, the contraband was completely concealed within a closed purse. Thus, the vehicle furnished no additional dimension of privacy. Accordingly, it strains the imagination to characterize the vehicle in question as facilitating the commission of this offense.” Barra, 128 Ill. App. 3d at 130, 470 N.E.2d at 47.

In our judgment, Honda, which is in direct disagreement with Barra and which was written after the supreme court’s Buick decision, is more consistent with Buick. Accordingly, we choose to follow the reasoning in Honda and hold that the trial court erred when it denied the State’s petition for forfeiture of defendant’s automobile.

While we acknowledge that this holding may seem harsh, we believe that it is required by the forfeiture provisions of the Act and the construction thereof by the supreme court in Buick. Requests to. alleviate the harshness of this result should be addressed to the legislature, not to this court.

III. State’s Request To Forfeit The Cash

The United States currency the State sought to forfeit was in defendant’s wallet and was in close proximity to three different areas of the automobile where cocaine was found: (1) the vial in defendant’s sock; (2) the white powdery residue containing cocaine found on the $2 bill in the wallet itself; and (3) the white powdery residue (found by a field test to be cocaine) in the straw located on the passenger side of the front floorboard. Section 505(aX5) of the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(5)) provides that “all moneys *** used, or intended to be used, to facilitate any violation of this Act” are subject to forfeiture. The trial court, as trier of fact, heard defendant’s explanations regarding the money in question and could assign to those explanations whatever weight it saw fit. Apparently, the trial court was not impressed or persuaded by what it heard. This court will not reverse a trial court’s determination regarding forfeiture when the trial court must determine the believability of the evidence unless we find the trial court’s ruling to be against the manifest weight of the evidence. (See People v. Strong (1986), 151 Ill. App. 3d 28, 34, 502 N.E.2d 744, 748-49.) On this record, we think the evidence is sufficient for the trial court to have concluded that the State proved by a preponderance of the evidence the nexus between the forfeited property (the cash) and the contraband (the cocaine). Accordingly, the trial court's decision was not against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court ordering the $990 forfeited to the State is affirmed; the judgment of the circuit court denying the State’s petition to forfeit the defendant’s automobile is reversed, and the cause is remanded with directions to enter the order of forfeiture.

Affirmed in part; reversed in part and remanded with directions.

LUND, P.J., and McCULLOUGH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLARD P. DRISKELL IV, Defendant-Appellant.
    Fourth District
    No. 4—90—0511
    Opinion filed April 12, 1991.

      Daniel D. Yuhas and Gary W. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1989, defendant, Willard P. Driskell IV, was charged, in two counts, with the unlawful possession and the unlawful delivery of more than 10 grams, but not more than 30 grams, of a substance containing cannabis under sections 4(c) and 5(c), respectively, of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, pars. 704(c), 705(c)). After a jury trial in January 1990, defendant was convicted of both counts. In July 1990, he was sentenced to probation under section 10 of the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 710) for a period of three months and fined $1,500.

One of several arguments raised by defendant on appeal is that the trial court erred by restricting defendant’s cross-examination of two key State witnesses. Because we agree with that argument and reverse and remand for a new trial, we will address other arguments raised by defendant only to the extent that they concern matters likely to arise on retrial.

A brief summary of the evidence presented at trial is as follows. During the evening hours of April 1, 1989, the automobile Brad Jones was driving was stopped by Sergeant Earnest Bigelow of the Woodford County sheriff’s department for not obeying a stop sign. A license check on Jones revealed that his driver’s license was suspended. Bigelow advised Jones that he was going to be arrested for driving while license suspended, that Jones should secure his car, and go with Bigelow to the squad car. At the squad car, Bigelow told Jones that he would have to go to jail, get booked, and post $100 bond. Bigelow then asked Jones if Jones knew anything about any burglaries or drug activity in the county and advised Jones that, depending on how important and valid the information Jones gave Bigelow turned out to be, “possibly we could work out something as far as the charge of suspended driver[’]s license” was concerned. Bigelow testified that he never got more specific than that, telling Jones that “basically it depended on what information and what he did for us as far as drugs.”

Jones testified that, in response to Bigelow’s remarks in the squad car, he ran “options through my mind of what I can do, and I told him what I could do for him, you know, to help him out.” Jones told Bigelow that he could “set up a drug deal with somebody,” but Jones did not mention any names at that time.

Bigelow never filed the driving while suspended ticket against Jones. Instead, Bigelow told Jones to try to get a drug deal going within the next few days.

Jones testified that after his conversation with Bigelow on the night of April 1, 1989, he called defendant- and Jim Webster the next day to “set up the deal.” Jones said they arranged for defendant to sell Jones an ounce of marijuana. Jones testified that earlier on April 2, he, Webster, and defendant met in the parking lot of a Pizza Hut restaurant where Jones worked, and defendant showed Jones the marijuana he had. However, Jones did not purchase it then because he did not have the money. They arranged to meet later in the evening for the delivery.

Jones then called Bigelow and arranged to meet him that night at a gas station. Jones arrived at the gas station with his girlfriend, Lynn Schaub, who was driving because Jones’ driver’s license was suspended. Bigelow searched Jones’ vehicle and trunk, as well as Jones, to make sure that he did not have any drugs on his person or in his car. Bigelow testified that Schaub “let me look in her purse.” Bigelow then gave Jones $130 “of drug money, which was marked as far as the serial numbers,” and instructed Jones to make the drug deal and to meet Bigelow afterward. Bigelow advised Jones that once the delivery was made, Bigelow intended to stop the suspect vehicle and arrest the people inside.

Jones testified that after he and Schaub met with Bigelow, he and Schaub drove to the predesignated meeting place. Defendant and Webster arrived in Webster’s father’s car. Webster was driving. Jones got out of his car, walked up to the driver’s side of Webster’s car, and handed defendant money through the window. Defendant then handed Jones a clear plastic baggie containing a green substance. Jones then returned to his car, and Schaub and he drove to their meeting place with Bigelow, where Jones gave the little plastic bag containing the marijuana to Bigelow.

Webster’s testimony corroborated that of defendant (as subsequently indicated in this opinion), except, according to Webster, the other person in Jones’ car was a male by the name of Hutchinson. Webster admitted to formerly being addicted to drugs and to having a delinquency adjudication based upon a burglary.

Schaub’s testimony also substantially corroborated Jones’ testimony. She testified that when Jones went to the driver’s window of the other car, she was unable to see who was in that car.

There was no testimony that Webster’s car was stopped after the transaction between defendant and Jones so that the “drug money” could be retrieved from defendant’s possession.

The parties stipulated that the plastic baggie that Jones gave to Bigelow on the night in question contained 19.7 grams of cannabis.

Defendant’s father testified that he and defendant were working on a car at their residence at the time defendant was supposedly meeting with Jones and Webster on April 2, 1989, at the Pizza Hut. Defendant testified that he never met with Jones and Webster at the Pizza Hut restaurant that afternoon but that Webster appeared at defendant’s home later that evening, asked defendant “to go cruising,” and they did so. Defendant testified that, at some point, Webster pulled over to the side of the road and another car pulled up behind them. Two people defendant said he “hardly knew,” Jones and Brad Hutchinson, got out of the car and walked up to the driver’s window of Webster’s car. They gave Webster some money and he gave them a small bag. Prior to this transaction, defendant denied having any knowledge that the transaction was going to take place or that Webster had any cannabis in the car or on his person.

In December 1989, defendant filed a motion for additional discovery, which stated the following:

“1. Brad A. Jones is listed by the State as a material witness during the trial of this case.
2. In Discovery supplied by the State, a police report prepared by Sgt. Earnest Bigelow, dated 4-1-89, states, ‘the driver then handed R/O a ticket identifying himself as Brad A. Jones. R/O was familiar with the name from a drug buy last month [March 1989] in which Brad was the supplier.’
3. Prior criminal violations on the part of Brad Jones (even if not yet resulting in convictions) are a proper subject for impeachment of his testimony in the trial of this cause.
WHEREFORE, defendant requests the Court to order the State to provide him with copies of all police reports dealing with the drug buy referred to in Officer Bigelow’s report.”

The court denied this motion.

Approximately one month after this motion was heard, the prosecutor made a motion in limine asking that defendant be prohibited from eliciting any testimony regarding the activities of Jones in March 1989 referred to in Bigelow’s report, which was the subject of defendant’s motion for additional discovery. In making this motion in limine, the prosecutor represented that, “Brad Jones does not know that that occurred.” During further discussions with the court and defense counsel, the prosecutor made clear that his motion encompassed barring defense counsel from asking either Jones or Bigelow about Jones’ activities in March 1989, as discussed in Bigelow’s report. The trial court granted the motion subject to an opportunity of defense counsel, prior to his cross-examination of Jones, to show that Jones did know about the allegations of his drug dealing.

At trial, after Jones’ direct examination was completed, defense counsel was given an opportunity to cross-examine Jones out of the presence of the jury. Jones was asked whether he had been engaged in a transaction in which he sold marijuana approximately a month before the first week of April 1989, and he replied, “No.” Jones was asked if he was aware of the fact that the sheriff’s department had another undercover agent to whom Jones sold marijuana, and Jones replied, “No.” Jones then was asked whether the sheriff’s department made any representations to him with regard to that prior sale, and Jones again replied, “No.” The court then reaffirmed its order granting the State’s motion in limine and barred any inquiry of Jones or Bigelow regarding Jones’ alleged activities in March 1989.

In People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9, the Illinois Supreme Court extensively addressed the scope of defense cross-examination of a State’s witness to show interest or bias. In Triplett, the defense sought to cross-examine the State’s sole occurrence witness, a juvenile by the name of Whitmore. (Triplett, 108 Ill. 2d at 474, 485 N.E.2d at 14.) Two of the areas the defense sought to cross-examine Whitmore about were (1) his “contacts” with the police prior to the date of the murder for which defendant was being tried, and (2) 10 other juvenile delinquency petitions that had been filed against Whitmore over a three-year period, all of which occurred prior to Whitmore’s commitment to the Illinois Department of Corrections, Juvenile Division. (Triplett, 108 Ill. 2d at 474, 485 N.E.2d at 14.) In analyzing these issues, the supreme court wrote the following:

“We note, initially, that a ‘witness may be impeached by attacking his character by proof of conviction of an infamous crime. [Citation.] For this purpose only conviction may be proved, and proof of arrests, indictments, charges or actual commission of crime are not admissible.’ (People v. Mason (1963), 28 Ill. 2d 396, 400[, 192 N.E.2d 835, 837].) However, showing bias, interest, or motive to testify is also an accepted method of impeachment. With this method of impeachment, ‘the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely.’ (Emphasis added.) (28 Ill. 2d 396, 401[, 192 N.E.2d 835, 837]; see People v. Wilkerson (1981), 87 Ill. 2d 151, 156[, 429 N.E.2d 526, 528]; People v. Barr (1972), 51 Ill. 2d 50, 51[, 280 N.E.2d 708, 710].) Therefore, although evidence of an arrest or indictment is not admissible to impeach credibility generally, it is admissible to show that the witness’ testimony may be influenced by bias, interest, or motive to testify falsely.
***
As stated, cross-examination to show bias, interest, or motive to testify falsely is a matter of right. * * *
Furthermore, when impeaching by showing bias, interest or motive, ‘the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony’ and, therefore, the evidence used must not be remote or uncertain. [Citations.]
In addition, the defendant need not show before cross-examining a witness as to the witness’ possible bias, interest, or motive ‘that any promises of leniency have been made or any expectations of special favor exist in the mind of the witness. [Citation.] Further, defense counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. [Citations.]’ People v. Freeman (1981), 100 Ill. App. 3d 478, 481[, 426 N.E.2d 1220, 1222].” Triplett, 108 Ill. 2d at 475-76, 485 N.E.2d at 15.

With the above principles in mind, the court concluded that “contacts” by juveniles with police officers were too remote, uncertain, and speculative to be admissible in cross-examination. (Triplett, 108 Ill. 2d at 477, 485 N.E.2d at 16.) The court quoted approvingly as follows from People v. Merz (1984), 122 Ill. App. 3d 972, 977, 461 N.E.2d 1380, 1384-85:

“ ‘[W]e believe that under the circumstances here where the juvenile witness was arrested for several offense[s] and “talked to” as part of a station adjustment procedure without any formal proceedings or supervision resulting therefrom, all occurring prior to the date of defendant’s alleged crime and trial, the evidence sought to be introduced to show bias, interest or motive was too remote, uncertain, and speculative to be admissible for impeachment purposes. Defendant must at least present direct evidence, rather than uncertain or remote evidence, that such bias exists.’ ” Triplett, 108 Ill. 2d at 477, 485 N.E.2d at 16.

Regarding the delinquency petitions that were dismissed against Whitmore, the supreme court concluded that delinquency petitions based upon two burglary charges and a theft charge could have been reinstated by the State at the time of the defendant’s retrial. (Triplett, 108 Ill. 2d at 482, 485 N.E.2d at 18.) In so holding, the court wrote the following:

“We believe that ‘the jury was entitled to know the nature of [the witness’] criminal charges “in order that it [could] have before it complete information so as to be better able to resolve the bias question.” [Citation.]’ (People v. Reese (1984), 121 Ill. App. 3d 977, 988[, 460 N.E.2d 446, 453].) Since the ‘exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination’ (Davis v. Alaska (1974), 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110), we hold that the defendant was denied his constitutional right to confront the witnesses against him when the circuit court precluded him from questioning Whitmore with respect to the juvenile delinquency petitions which could have been reinstated against the witness at the time of the defendant’s retrial.” Triplett, 108 Ill. 2d at 482-83, 485 N.E.2d at 18-19.

We note that in Triplett, the supreme court held the defendant was entitled to cross-examine Whitmore about the two burglary delinquency charges and the theft delinquency charge even though all three charges had been dismissed well before defendant’s retrial and there was no suggestion in that opinion that the State ever intended to reinstate those charges.

In summing up, the supreme court wrote that a defendant must show that the State has “some ‘leverage’ over the witness” in order to justify his claim to cross-examine a State’s witness to demonstrate that witness’ interest, bias, or motive to testify falsely. (Triplett, 108 Ill. 2d at 481-82, 485 N.E.2d at 18.) Obviously, the supreme court found the possible reinstatement of these juvenile delinquency charges to constitute sufficient “leverage,” however remote the reinstatement of those charges might have been.

Thus, based upon Triplett, we conclude that defendant in the present case should have been permitted the opportunity to cross-examine both Jones and Bigelow regarding the information in Bigelow’s report that Jones “was familiar [to Bigelow] from a drug buy [in March 1989] in which [Jones] was the supplier.” We find that this line of cross-examination, seeking to elicit bias on the part of Jones, was “direct and positive, not remote or uncertain.” (People v. Davis (1990), 193 Ill. App. 3d 1001, 1004, 550 N.E.2d 677, 679.) We also conclude that Bigelow’s report reveals information which may well give the police some “leverage” over Jones (see Triplett, 108 Ill. 2d at 481-82, 485 N.E.2d at 18). We further find that this information gives rise to the inference that Jones “had something to gain or lose by his testimony,” and may have believed that, if arrested or charged for the drug transaction referred to in Bigelow’s report, “things might go better” for Jones if the State was pleased with his testimony against defendant in this case. (See Triplett, 108 Ill. 2d at 476, 485 N.E.2d at 15.) Whether it is true that “things might go better” for Jones is not important; what is important is that Jones might have believed that to be true. Accordingly, we hold that the trial court’s decision barring this line of cross-examination of both Jones and Bigelow constituted a clear abuse of its discretion, resulting in manifest prejudice to the defendant. Davis, 193 Ill. App. 3d at 1004-05, 550 N.E.2d at 679.

In so holding, we are aware of the fact that, at the time of trial, Jones had not yet been charged with any offense arising from the matters contained in Bigelow’s report, and, for all we know, may never be charged. However, in the peculiar and unusual circumstances of this case, we do not believe that fact can be determinative, especially given that the decision whether to arrest or charge Jones resides unilaterally with the police and prosecution. The police in this case chose to reveal Jones’s alleged criminal conduct in a police report prepared in connection with defendant’s alleged criminality, not Jones’ criminality. In view of the pretrial motion based on Bigelow’s report and the hearing on that motion, we are extremely skeptical that Jones, by the time trial began, was not fully aware of what was contained in Bigelow’s report. Our skepticism is increased by the prosecutor’s firm representation, prior to trial, that Jones knew nothing about the information in Bigelow’s report. We are unaware of how the prosecutor could be able to make that statement to the court other than if he had informed Jones about what Bigelow’s report contained and Jones then denied any knowledge regarding that matter.

We emphasize that the point of focus, when determining whether a particular subject matter is impeaching, ought to be on the time the witness in question is testifying before the trier of fact. If cross-examination on a particular subject might reveal an interest, bias, or motive to testify falsely on the part of that witness, then the cross-examiner should be permitted to pursue that line of cross-examination. In the present case, that standard has been met as a result of the information revealed in Bigelow’s report.

Having determined that the defense may properly cross-examine Jones and Bigelow about Bigelow’s report, we further determine that, on remand, defendant’s motion for production of Bigelow’s reports concerning Jones’ alleged drug dealing should be granted under Supreme Court Rule 412(h). (134 Ill. 2d R. 412(h).) In so holding, we should not be understood as warranting in any way “fishing expeditions” by defendants into police records or into police reports concerning any given witness whom the State may intend to call at trial. What makes this case different is the presence of specific, articulable grounds, cited in defendant’s motion for production, which state with specificity both what the defendant is seeking and the factual basis for his doing so.

For the reasons stated, defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

LUND, P.J., and KNECHT, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMIE LEE BANKS, JR., Defendant-Appellant.
    Fourth District
    No. 4—90—0623
    Opinion filed April 17, 1991.

      Daniel D. Yuhas and Judith Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant pleaded guilty to the possession of cocaine with the intent to deliver, and now appeals the denial of his amended motion to withdraw his guilty plea and sentence. We affirm in part, vacate in part and remand with directions.

The record reveals the following. Undercover police with the Department of Criminal Investigations, Illinois State Police (DCI), worked with defendant’s college roommate, Bill Moffit, to arrange the purchase of a large amount of cocaine from either defendant, or defendant’s friend, Marvin Blackshear. According to an Illinois State Police investigation report, Moffit informed defendant that he was trying to arrange a cocaine transaction with Blackshear, and defendant told Moffit that if Blackshear could not obtain the cocaine, he could from the same source. Arrangements were made for defendant to deliver approximately eight ounces of cocaine to Agent Ken Wurl of the DCI.

On March 23, 1988, at approximately 11:30 p.m., Wurl contacted defendant by phone and defendant told Wurl that everything was set for the transaction. On March 24, 1988, at approximately 1:45 p.m., Wurl again contacted defendant by phone and inquired whether the arrangements were made for the cocaine delivery. Defendant again confirmed that everything was ready. Later that day, at approximately 5:30 p.m., Moffit and Wurl met with defendant, who advised them that the person delivering the cocaine was en route, or maybe already in town.

At approximately 9:01 p.m. that same evening, Moffit contacted defendant by phone. Defendant was waiting for the arrival of the cocaine. Defendant told Moffit that he did not want Blackshear involved in the transaction because Blackshear was unreliable. Defendant wanted to handle the entire transaction himself.

At approximately 11:32 p.m. that night, Moffit again contacted defendant by phone. Defendant informed Moffit that he had just talked to Blackshear, who said that the person delivering the cocaine would arrive in 15 minutes. At approximately 11:47 p.m., Blackshear contacted Moffit and told him that the cocaine had arrived and the two agreed to meet at Blackshear’s apartment to conduct the sale.

At approximately 12:09 a.m. on March 25, 1988, Moffit and Wurl went to Blackshear’s apartment and discussed the transaction with Blackshear. Blackshear told Moffit that his source was only able to supply four ounces of cocaine, and that he wanted $6,000 for it. After some discussion, Blackshear and Moffit left the apartment to the get the money and Blackshear was arrested. Police later executed a search warrant of the apartment and found a quantity of white powder in plastic containers. According to the DCI evidence log, approximately 112 grams of the white powder were retrieved from the apartment. Later tests by a lab revealed the white powder to be 105.4 grams of cocaine, not including amounts found in paper folds, which were not tested; 27.3 grams of the cocaine were tested for purity and found to be 90% pure. The rest of the cocaine was not tested for purity.

Defendant was arrested later that day, March 25, at another address and taken into custody for an interview. Defendant told police that he had set up numerous narcotic transactions for Blackshear, who would give defendant cocaine in return. Defendant also told the police that four or five days prior to his arrest, Moffit had asked him to contact Blackshear and order eight ounces of cocaine. Moffit told defendant that a friend in Champaign, Illinois, had $8,000 to buy cocaine.

On March 25, 1988, defendant was charged by information with the possession of a controlled substance, cocaine, in an amount exceeding 15 grams, with the intent to deliver, a Class X offense. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) Defendant originally pleaded not guilty to the Class X offense. However, at a change of plea hearing on February 7, 1990, the State reduced the charge to a Class 1 offense by lowering the amount of the controlled substance involved from “more than 15” grams to “more than one gram but less than five” grams. In exchange for this reduction, defendant agreed to plead guilty, but no agreement was made as to sentence.

At the plea hearing, the State presented the court with the factual basis for defendant’s plea. The State informed the court that Wurl conducted a “purported cocaine buy” from defendant through phone conversations, and that defendant repeatedly told Wurl that everything was set for the transaction. Wurl later talked to Black-shear on the phone, and Blackshear “arranged to furnish Agent Wurl with the cocaine in question. A portion of cocaine was sold to Agent Wurl.” After a search warrant was obtained, a search of “Mr. Black-shear’s residence was conducted and an amount of cocaine was seized up to one ounce.” Defendant was later arrested and told police that he had arranged numerous narcotic transactions for Blackshear.

The court proceeded to advise defendant of his rights pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), but failed to inform defendant of the mandatory street-value drug fine (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1). The court found a factual basis for, and accepted, defendant’s guilty plea.

At defendant’s sentencing hearing on March 8, 1990, an officer with the Illinois State Police testified that the street value of the cocaine seized was in the range of $11,000 to $36,000, depending on the purity of the cocaine and the number of times it was cut. The officer also testified that cocaine sold on the street for $100 a gram.

Defendant testified at his sentencing hearing that he was currently working two jobs, as a cook and as a bag boy, and was three or four classes short of finishing his major at Illinois State University. The last time defendant ever used any illegal substance was in April 1988. Defendant also explained that he had set up drug deals with Blackshear, but only for friends and to obtain drugs for his personal use. Defendant stated that he never set up the deals for money, and that the largest amount of cocaine he ever sold was about a gram. Defendant also stated that since his arrest, he had not associated with former friends who were involved with cocaine.

The State argued for a sentence of 10 years, and noted that the amount of cocaine seized could have produced 360 grams of final product. If the cocaine was not cut, there would have been roughly 105.4 grams. The State thus argued for a street-value fine in the range of $10,540 to $36,000, based on the testimony that cocaine sold on the street for $100 a gram.

Defense counsel argued for a sentence of probation due to defendant’s good behavior since his arrest, and his prior record. Defense counsel also argued that it would be erroneous to impose a street-value fine of anything greater than the minimum figure the State argued, because all of the cocaine seized was not tested for purity. Defense counsel did not argue that the court failed to inform defendant of the mandatory street-value fine pursuant to Supreme Court Rule 402 before defendant pleaded guilty.

The court considered the mitigating and aggravating circumstances, and noted defendant’s employment, his nearly completed college degree, his prior history of arranging drug transactions and his prior misdemeanor theft conviction in 1984. The court also noted that the transaction in the instant case involved an arrangement for the purchase of eight ounces of cocaine for $8,000, and that the street value of the substance actually seized ranged somewhere between $11,000 and $36,000. The court further noted that Blackshear had received an eight-year sentence for two felony drug offenses, a Class X offense and a Class 1 offense, and that one of those offenses arose from the instant transaction. The court also noted that Blackshear was younger than defendant and had no prior convictions. The court thought there “ha[d] to be some recognition given to similarities in defendant’s sentence as well.” Then, after considering the seriousness of the offense and the amount and value of the substance involved, the court sentenced defendant to seven years’ imprisonment, with credit for time previously served in the case. The court further ordered defendant’s cash bond deposit to be applied as a- partial satisfaction “of what would be a street value fine, clearly in excess of the amount of the cash bond deposit after payment of fees and costs from the cash bond deposit.” The sentencing court did not determine the actual amount of the street-value fine.

On March 15, 1990, defendant filed a motion to withdraw his guilty plea, which argued that the sentence imposed was too severe. On April 18, 1990, Judge W. Charles Witte entered an order, later amended April 24, 1990, determining the street value of the seized controlled substance to be $782 and assessing a fine in that amount. The $782 was apparently the remaining amount of defendant’s bond money after costs. Judge Witte was not the trial judge, and had been previously substituted from this case on a motion by defendant pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114—5(a)).

On August 14, 1990, defendant filed an amended motion to withdraw his guilty plea, which the court denied on September 6, 1990. In denying defendant’s motion, the court noted that defendant was an “active and primary participant in organizing” the transaction. The court also noted that the planned transaction was eight ounces of cocaine for $8,000, “a rather substantial transaction.” Defendant failed to include in his motion or amended motion to withdraw his guilty plea the issue of the court failing to warn him of the mandatory street-value drug fine pursuant to Rule 402. Defendant filed a timely notice of appeal.

On appeal, defendant first argues that his conviction for possession of cocaine with the intent to deliver cannot stand because the State failed to prove that a delivery of drugs took place and that he was involved with any such delivery. Defendant believes the State’s factual basis was fatally vague concerning what role he may have played in the transaction, and on the specifics concerning the delivery itself.

Section 115 — 2 of the Code provides that upon acceptance of a guilty plea, the court shall determine the factual basis for the plea. (Ill. Rev. Stat. 1989, ch. 38, par. 115—2(a)(2).) Illinois Supreme Court Rule 402(c) requires the trial judge to determine the factual basis for the plea. (134 Ill. 2d R. 402(c).) The factual basis for a guilty plea consists of an express admission by the accused that he committed the acts alleged in the indictment, or a recital of evidence to the court which supports the allegations in the indictment. (People v. Green (1973), 12 Ill. App. 3d 418, 420, 299 N.E.2d 535, 537.) Rule 402(c) is satisfied if there is a basis in the record “from which the judge could reasonably reach the conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty.” (People v. Barker (1980), 83 Ill. 2d 319, 327-28, 415 N.E.2d 404, 408.) Because the purpose of Rule 402(c) is to enable a judge to determine that the conduct of a defendant constitutes the offense charged, the trial court may look anywhere in the record to find a sufficient factual basis for the plea. (People v. Slice (1987), 160 Ill. App. 3d 132, 513 N.E.2d 463.) If a court concludes that a factual basis is insufficient, it must submit the case for trial. People v. Dilger (1984), 125 Ill. App. 3d 277, 465 N.E.2d 937.

Defendant argues that it is impossible to determine from the State’s factual basis when, how, and in what amount a delivery of cocaine took place. Defendant notes that the State informed the court that the instant offense involved an eight-ounce “purported” purchase of cocaine for $8,000, not from the defendant, but from Blackshear. Further, the State told the court that “up to an ounce” of controlled substance was later seized from Blackshear’s residence. Defendant believes that based upon the State’s incomplete picture, the court erred in accepting the State’s factual basis as adequate, and argues that the court should have transferred his case to the trial call.

While the State’s factual basis to the court may have been incomplete, the trial court could reasonably conclude from the record that defendant actually committed the offense to which he pleaded guilty. As the State argues, the evidence supports the theory that defendant was accountable for Blackshear’s actions and that defendant aided Blackshear in planning and committing delivery of the cocaine to an undercover police officer. The theory of accountability holds a defendant responsible for another’s action if “(1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation [took] place either before or during commission of the offense; and (3) [the act was performed] with the concurrent, specific intent to facilitate or promote the commission of the offense.” (People v. Saldana (1986), 146 Ill. App. 3d 328, 334-35, 496 N.E.2d 757, 763.) It is not necessary to prove the defendant participated in the commission of the act which constituted the offense. (People v. Sauer (1988), 177 Ill. App. 3d 870, 876, 532 N.E.2d 946, 950.) If the defendant shares the same intent to accomplish an unlawful purpose, the requisite intent exists for a finding of guilt by accountability. (People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29.) As the State argues, the record shows that defendant helped arrange the deal, his participation occurred before actual delivery took place, he knew that the transaction was taking place, and acted with the specific intent to facilitate the commission of the offense. Thus, the trial court did not err in finding a factual basis and accepting defendant’s guilty plea.

Defendant’s next contention on appeal is that he is entitled to withdraw his guilty plea because the trial court failed to admonish him that a mandatory street-value drug fine would be imposed as part of his sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1.) Defendant asks that he be allowed to withdraw his plea and plead anew or, in the alternative, that the fine portion of his sentence be vacated as exceeding that for which he was properly admonished.

The State argues, and we agree, that defendant has waived this issue for review. Defendant failed to argue this issue in his motion to withdraw his guilty plea and in his amended motion to withdraw his guilty plea. Consequently, defendant has waived this issue for review. (Stice, 160 Ill. App. 3d at 134, 513 N.E.2d at 465; 134 Ill. 2d R. 604(d).) We believe the proper remedy for defendant here would be a claim under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.) for ineffective assistance of counsel. See People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218 (where the Illinois Supreme Court held that the appropriate remedy for defendants on appeal wishing to withdraw their guilty plea, who failed to file a motion under Rule 604(d) (134 Ill. 2d R. 604(d)) to withdraw their guilty pleas, was the Post-Conviction Hearing Act).

However, we do vacate defendant’s street-value drug fine for another reason: we conclude it was a void order. Defendant also argues that the mandatory street-value drug fine cannot stand because (1) it was in excess of $500 for the five grams he was convicted of possessing; (2) it was not supported by the factual basis or the evidence at the sentencing hearing; and (3) it was entered after sentencing in a specific amount ex parte by Judge Witte, who earlier had been substituted from defendant’s case. We agree, as does the State, that Judge Witte improperly imposed the fine.

Judge Witte had been substituted from this case on defendant’s motion pursuant to section 114 — 5 (Ill. Rev. Stat. 1989, ch. 38, par. 114—5(a)). Thus, Judge Witte was without authority to enter any order on the merits of this case, including one assessing a specific amount for the mandatory street-value drug fine. Once a motion for substitution of judge is brought, the trial judge loses all authority and power over the defendant’s cause, except to make all necessary orders to effectuate the change; and if the motion is improperly denied, all subsequent action of the trial court is void. (People v. Redisi (1989), 188 Ill. App. 3d 797, 801, 544 N.E.2d 1136, 1139.) A judge who has previously been substituted from a case may perform only formal or administerial functions having no direct relationship to the merits of the case. (People v. Washington (1984), 121 Ill. App. 3d 479, 485, 459 N.E.2d 1029, 1034.) Judge Witte’s act was not a mere formal or administerial act, but instead was a specific finding and order. Thus, because the sentencing judge failed to assess a fine in a specific amount, and because Judge Witte was without authority to do so, we vacate the fine pursuant to our authority under Supreme Court Rule 615 (134 Ill. 2d R. 615); since, however, it is a mandatory fine and defendant made no objection to it in his motions to withdraw his plea, we remand for imposition of the fine.

Defendant’s final contention on appeal is that his sentence was excessive and was, in effect, a punishment for a crime more serious than he was convicted of committing. Defendant also believes that his seven-year sentence is excessive in light of his potential for rehabilitation.

Defendant first argues that he, in essence, was sentenced for a Class X crime. Defendant believes the court abused its discretion in considering the amount of drugs involved in the original planned transaction, eight ounces for $8,000, when he agreed to plead guilty to possession with the intent to deliver one to five grams of a substance containing cocaine. Defendant also notes that at sentencing, the State argued the large quantity of drugs involved in requesting a 10-year sentence. Defendant argues that this abuse is apparent when considering Blackshear’s eight-year sentence. Blackshear pleaded guilty to two offenses, a Class X and a Class 1 offense, one of which involved the instant transaction. Defendant concludes that although he was allowed to request probation pursuant to this plea, it was meaningless since the court sentenced him as if he had been convicted of the Class X offense.

Defendant relies on People v. Hill (1973), 14 Ill. App. 3d 20, 302 N.E.2d 373, where the trial court, in pronouncing sentence, commented to the defendant that he might have been charged with a felony instead of a misdemeanor. Because the defendant was not charged with or proved guilty of a felony, it was improper for the trial court to use the possibility of being charged with a felony as a basis for either denying probation or setting defendant’s sentence. The defendant in Hill had a considerable amount of mitigating evidence, and no prior criminal record, but was sentenced to the maximum term of imprisonment for the crime charged.

The trial court in the instant case did not sentence defendant for a Class X offense. It was proper for the court to consider the amount of the original proposed transaction, as well as the actual amount seized, in sentencing defendant. In People v. Fitzgerald (1977), 55 Ill. App. 3d 626, 370 N.E.2d 1207, the defendant was convicted of robbery and acquitted of armed robbery, even though there was evidence that a gun had been used in the commission of the robbery. During sentencing, the trial court mentioned the fact that a weapon had been used, and stated that it was a very serious offense. On appeal, the defendant cited Hill and argued that the trial court based his sentence on offenses for which he was acquitted, namely, armed robbery. The appellate court disagreed, and held that there was credible testimony that a gun had been used in the offense, and that it was proper to consider this in sentencing the defendant. Here, there was undisputed evidence that the original transaction was to be for eight ounces of cocaine, and that nearly four ounces of cocaine were actually seized.

Moreover, this court has stated that “the decision in Hill stands only for the proposition that a trial court abuses its discretion when it considers an improper factor not supported by the evidence or fails to consider all of the statutory factors in aggravation and mitigation.” (People v. Glass (1986), 144 Ill. App. 3d 296, 303, 494 N.E.2d 886, 890.) Glass dealt with the trial court’s consideration at sentencing of facts underlying separate charges dismissed in return for a plea. Glass cited United States v. Majors (10th Cir. 1974), 490 F.2d 1321, 1324, for the proposition that “[t]he plea bargain and the indictment dismissal resulting from it did not and, indeed, could not, deprive the judge of the right and probably the duty of giving consideration to [the dismissed charges].” The rationale for this can be seen in United States v. Doyle (2d Cir. 1965), 348 F.2d 715, 721, quoted with approval by Glass: “ ‘The narrowing of the indictment to a single count limits the maximum punishment the court can impose but not the scope of the court’s consideration within the maximum. The dismissal of the other counts at the Government’s request was not an adjudication against it on the merits ***.’ ” (Glass, 144 Ill. App. 3d at 302, 494 N.E.2d at 889.) The same reasoning is applicable here.

We further note that our supreme court has stated that a sentencing body may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information it may consider or the source from which it may come, as long as the evidence is both relevant and reliable. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) The evidence concerning the amount of the proposed transaction and the amount actually seized here is both relevant and reliable. This evidence is relevant because it shows defendant’s inclination to sell controlled substances in an amount greater than what he previously admitted selling. We also note that section 411 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1411(2)) allows the sentencing court to consider unusually large quantities of controlled substances. The actual amount seized, nearly four ounces of cocaine, is an unusually large amount of controlled substance. In addition, the evidence is reliable, as there is no conflict in the record of the amount of cocaine proposed in the original deal, and the actual amount seized.

Next, defendant’s comparison of his sentence to Blackshear’s does not show that the trial court sentenced him for a Class X offense. Although Blackshear pleaded guilty to two separate offenses, a Class X offense and a Class 1 offense, one of which involved the instant transaction, Blackshear had, unlike defendant, no prior record, and was younger than defendant. These facts explain the trial court’s sentencing.

Defendant’s argument that his plea and reduction of the charge is meaningless in light of his seven-year sentence is also unpersuasive. As this court in Glass noted, citing Doyle, a plea agreement including a narrowing of an indictment to a single count (here the lowering of the offense from a Class X offense to a Class 1 offense), limits the maximum punishment the court can impose. (Glass, 144 Ill. App. 3d at 302, 494 N.E.2d at 889.) This is what defendant bargained for, and it is what he received. There was no agreement made concerning the length of defendant’s, sentence. Defendant was sentenced for a Class 1 offense, not a Class X offense.

Defendant’s final argument here is that the trial court failed to adequately consider his rehabilitative potential. Defendant cites two cases in support of this argument: People v. Smith (1989), 178 Ill. App. 3d 976, 533 N.E.2d 1169, and People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859. In these two cases, appellate courts reversed sentences where trial courts failed to adequately consider defendants’ rehabilitative potential. Defendant argues that facts such as his prior criminal record, his employment record, his nearly completed college education, and his lack of involvement with drugs and those associated with them for the past two years, show that the trial court failed to adequately consider his potential for rehabilitation. Defendant believes the mitigating factors weigh heavily in his favor, as opposed to the “sole and improperly considered aggravating factor of what large amount of cocaine ‘might have been’ involved.” At most, defendant argues, he was guilty of putting five grams of cocaine in the distribution market.

Defendant’s argument is unpersuasive. First, the amount of cocaine involved in the original transaction was neither the “sole” aggravating factor, nor improperly considered. Defendant had a prior record, and had admitted setting up drug transactions for Blackshear prior to the arrest in the instant case. Defendant went from arranging “small” drug transactions for Blackshear to arranging a deal for eight ounces of cocaine. Defendant even attempted to cut Blackshear out of the deal and conduct the transaction on his own. Moreover, defendant’s situation is not similar to that of the defendants in the two cases he relies on, both of which involved defendants with few or no aggravating circumstances, and many mitigating factors. Finally, as the State notes, defendant’s seven-year sentence was well within the 4- to 15-year range available for a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401; People v. Manna (1981), 96 Ill. App. 3d 506, 519, 421 N.E.2d 542, 551.) And, where mitigating evidence is before the court, as it was here, it is presumed that the sentencing judge considered the evidence, absent some indication other than the sentence imposed. People v. Danis (1984), 129 Ill. App. 3d 664, 670, 472 N.E.2d 1194, 1199.

Affirmed in part; vacated in part, and cause remanded with directions.

LUND, P.J., and STEIGMANN, J., concur.