author: JUSTICE MAAG

text:
    ELMER SEPMEYER, Special Adm’r for the Estate of Esther Sepmeyer, Plaintiff-Appellant, v. RICHARD L. HOLMAN et al., Defendants-Appellees.
    Fifth District
    No. 5 — 91—0832
    Opinion filed July 2, 1993.

      Don W. Weber, of Collinsville, for appellant.
    Norman M. Hirsch and Patricia A. Bronte, both of Jenner & Block, of Chicago, for appellee Richard L. Holman.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for other appellees.
   JUSTICE MAAG

delivered the opinion of the court:

Plaintiff, Elmer Sepmeyer, administrator of the estate of Esther Sepmeyer, seeks review of the trial court’s order denying his motion to reconsider and/or amend complaint. The relevant facts are as follows: Defendant Richard L. Holman and Girvies Davis were convicted of the July 13, 1979, murder of Esther Sepmeyer, plaintiff’s mother. More specifically, Holman was convicted of murder and felony murder based upon burglary, a Class 2 felony. Holman was sentenced to life imprisonment. On August 17, 1986, Holman was assaulted while incarcerated in the Illinois Department of Corrections. As a result of this assault, Holman sued several employees of the Illinois Department of Corrections. The State of Illinois agreed to pay Holman $15,000 plus interest in order to settle this litigation.

On January 14, 1991, the plaintiff filed a complaint seeking in excess of $15,000 compensatory damages and $1 million punitive damages. Count I of the plaintiff’s complaint alleged wrongful death. Count II of the complaint alleged that Holman’s conduct on July 13, 1979, constituted armed robbery. The trial court dismissed plaintiff’s complaint with prejudice. The court ruled that the statute of limitations on count I had expired prior to the enactment of section 13— 202.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.1). The court determined that section 13 — 202.1 could not be applied retroactively to a time-barred action. Additionally, the court noted that section 13 — 202.1 is inapplicable to count II. On March 1, 1991, the plaintiff filed a motion to reconsider and/or amend complaint alleging an additional count, conversion of property based upon residential burglary. The trial court denied plaintiff’s motion in an order dated October 29, 1991. On November 22, 1991, the plaintiff filed a notice of appeal from this order.

At the time the trial court dismissed the case, section 13— 202.1 stated, in pertinent part:

“(a) Notwithstanding any other provision of law, any action for damages against a person, however the action may be designated, may be brought at any time if—
(1) the action is based upon conduct of a person which constituted the commission of first degree murder, a Class X felony, or a Class 1 felony as these terms are utilized at the time of filing of the action; and
(2) the person was convicted of the first degree murder, Class X felony, or Class 1 felony.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.1(a).

Section 13 — 202.1 became effective on January 5, 1984. Plaintiff argues that section 13 — 202.1 applies to this case and allows him to bring this civil cause of action against defendant even though the conduct upon which he bases his claim occurred over 11 V2 years before he filed the instant cause of action. Plaintiff contends that this statute revives his cause of action against defendant on the wrongful death count even. though the statute of limitations for the wrongful death action expired in 1981. (See Ill. Rev. Stat. 1979, ch. 70, par. 2 (two-year statute of limitations on wrongful death claims).) Additionally, plaintiff claims that section 13 — 202.1 revives his causes of action against defendant on the armed robbery and conversion based upon residential burglary counts even though the statute of limitations for those crimes would have expired in 1984. See Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205 (five-year statute of limitations on conversion claims).

Defendant claims that section 13 — 202.1 cannot retroactively revive plaintiff’s cause of action after it has lapsed. The defendant contends that the language and history of section 13 — 202.1 refute plaintiff’s claim that the statute should be applied retroactively to a time-barred action. Further, defendant argues that section 13 — 202.1 does not apply to the counts of armed robbery or residential burglary because Holman was never convicted of either of these Class 1 felonies.

In 1895, the Illinois Supreme Court decided that a completed bar of the statute of limitations is a vested right. (Board of Education v. Blodgett (1895), 155 Ill. 441, 446, 40 N.E. 1025, 1026) (amendment extending time to file an action held inapplicable to actions barred by running of previous statute of limitations).) In Blodgett, the Illinois Supreme Court stated that “the right to set up the bar of a statute of limitations as a defense to a cause of action, after the statute has run, is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause or by an affirmative act, and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand or for the recovery of damages for a tort.” Blodgett, 155 Ill. at 447, 40 N.E. at 1027.

In Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 163, 380 N.E.2d 782, 783, the Illinois Supreme Court reiterated the aforementioned principle and stated that a subsequent statutory amendment extending the time for filing a cause of action will not be applied retroactively to revive a cause of action which had been previously barred. (See also Beck v. Yatvin (1992), 235 Ill. App. 3d 1085, 1090, 603 N.E.2d 558, 561.) The Arnold court made a distinction between cases in which the statute of limitations had not expired prior to the date of the amendment extending the statute of limitations and cases in which the statute of limitations had expired prior to the amendment. (Arnold, 72 Ill. 2d at 164, 380 N.E .2d at 784.) The Arnold court made it clear that if a statute of limitations period has not expired prior to the amendment, the amendatory act controls all actions not previously barred. (Arnold, 72 Ill. 2d at 165, 380 N.E.2d at 784.) Further, the court noted that, in the converse situation, where the claimant’s time for filing a claim had lapsed prior to the enactment of the amendment extending the statute of limitations, these causes of action were barred by the previous statute of limitations. Arnold, 72 Ill. 2d at 164, 380 N.E.2d at 784.

Plaintiff also claims that section 13 — 202.1 revives his actions which are based upon armed robbery and residential burglary, both of which are Class 1 felonies. A review of this section demonstrates that it does not apply to either of these claims. Section 13 — 202.1 clearly states that the action must be based upon conduct constituting the commission of first-degree murder, a Class X felony, or a Class 1 felony and that the person must actually be convicted of one of these crimes. (See Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.1(a).) The defendant was not convicted of armed robbery or residential burglary. Although it is possible that the defendant could have been convicted of one of these crimes, he was not. Hence, section 13 — 202.1 does not apply to either of the aforementioned claims.

If section 13 — 202.1 had remained in the form cited previously, we would be compelled to hold that this action was time-barred and properly dismissed. However, section 13 — 202.1 was amended by the legislature with an effective date in August 1992. At present, this section states in pertinent part:

“(a) Notwithstanding any other provision of law, any action for damages against a person, however the action may be designated, may be brought at any time if—
(1) the action is based upon conduct of a person which constituted the commission of first degree murder, a Class X felony, or a Class 1 felony as these terms are utilized at the time of filing of the action; and
(2) the person was convicted of the first degree murder, Class X felony, or Class 1 felony.
(b) The provisions of this Section are fully applicable to convictions based upon defendant’s accountability under Section 5 — 2 of the Criminal Code of 1961, approved July 28, 1961, as amended.
(c) Paragraphs (a) and (b) above shall apply to any cause of action regardless of the date on which the defendant’s conduct is alleged to have occurred or of the date of any conviction resulting therefrom. In addition, this Section shall be applied retroactively and shall revive causes of actions which otherwise may have been barred under limitations provisions in effect prior to the enactment and/or effect of P.A. 84 — 1450.” 735 ILCS 5/13 — 202.1(a) through (c) (West 1992) (as amended by Pub. Act 87-941, §1 eff. Aug. 28, 1992).

As is apparent, the legislature has expressly provided that this statute should apply retroactively and revive any time-barred actions. We have been unable to find any other instance where our legislature has expressly stated that it was reviving a cause of action that had been previously barred by a statute of limitations. Because of this express revival, Blodgett and its progeny are of little help. Our supreme court has left open the question of whether the legislature may constitutionally revive a time-barred cause of action through a clear statement of intention to do so. (Arnold, 72 Ill. 2d at 167-68, 380 N.E.2d at 785; People v. Lansing (1966), 35 Ill. 2d 247, 250, 220 N.E.2d 218, 220.) There is, however, a presumption of constitutionality to the acts of our legislature. People v. Mondhink (1990), 194 Ill. App. 3d 806, 811, 551 N.E.2d 755, 759.

In considering this matter, we are mindful of the subject matter of the revived causes of action: murders and serious felonies. It is clear that the legislature was not reviving a garden-variety tort action. The actions revived typically result in lengthy prison terms, and in fact, in this case the defendant is still in the penitentiary and will be for the rest of his life.

The legislature has spoken. It expressly revived the plaintiff’s cause of action. The statute is presumed constitutional. Our supreme court has never spoken on whether an express revival by the legislature is constitutional. The United States Supreme Court has spoken, however, and declared such an act to be constitutional. (Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 89 L. Ed. 1628, 65 S. Ct. 1137.) We agree. The 1992 amendments to section 13 — 202.1 effectively revive the cause of action pleaded in count I alleging wrongful death. Count II is unaffected by this amendment. The defendant was never convicted of the offenses alleged in count II; therefore, this count was properly dismissed.

Accordingly, we reverse the trial court’s dismissal of count I, the wrongful death count, but affirm the dismissal as to count II and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part, and remanded.

GOLDENHERSH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    BILLIE V. FERNANDES, d/b/a Fernandes Construction Company, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jack Ponthieux, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4 — 92—0418WC
    Argued March 3, 1993.
    Opinion filed June 10, 1993.
    Rehearing denied July 29, 1993.

      Jeremy H. Heiple (argued), of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellant.
    Diane E. Greanias (argued), of Peoria Heights, and Warren E. Danz, P.C., of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Jack Ponthieux (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) for injuries sustained in the employ of the appellant, Billie V. Fernandes, d/b/a Fernandes Construction Company (the employer). Following a hearing, the arbitrator found, inter alia, that the claimant had sustained permanent partial disability (PPD) to the extent of 30% loss of the use of his left hand and awarded benefits under section 8(e) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(e)). On review, the Industrial Commission (the Commission), with one commissioner dissenting, modified the arbitrator’s decision to award benefits under section 8(d)(1) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1)) rather than section 8(e). The circuit court of Morgan County confirmed. The employer brings the instant appeal.

In September of 1987, the claimant, Jack Ponthieux, was employed as a structural ironworker on a building project in Jacksonville, Illinois, by the employer, Fernandes Construction Company. The claimant resided in Louisiana, and had been sent to the Illinois project by his union. On September 9, 1987, while working on the roof of the project, the claimant tripped on a welding cable and fell from the roof. The claimant landed on his left arm and hand. The claimant was taken to a local Jacksonville hospital emergency room for treatment and, subsequently, transferred to Louisiana for further treatment. The record shows the claimant suffered a left wrist fracture dislocation, three fractured ribs, and multiple contusions.

On returning to Louisiana, the claimant came under the care of Dr. Robert Chuinard. Chuinard performed surgery on the left wrist on September 22, 1987. Thereafter, the claimant was treated through physical therapy and other forms of rehabilitation for approximately a year. On December 8, 1988, Chuinard released the claimant from his care. Chuinard was of the opinion the claimant would not benefit from any further medical treatment. Chuinard opined the claimant could not return to his occupation as an ironworker. According to Chuinard, the claimant sustained a permanent partial impairment of his left wrist and hand.

During this time efforts were also made to bring the claimant back into the work force. The claimant testified at arbitration that he told the rehabilitation specialist that he wished to attend truck driving school. Some efforts were made in this direction. He applied for some truck driving jobs, though he was turned down. The claimant testified these jobs paid between $9 and $12 per hour. The specialist located possible positions, including truck driving that paid between $4 and $9 per hour. On September 1, 1989, the claimant began working for Wells Fargo Guard Service as a security guard. He testified he was paid $4.30 per hour.

The claimant testified he had been an ironworker for 30 years. However, prior to that the claimant had worked for a time as a seaman and then a truck driver. At the time of his injury he was paid $16.75 per hour. He had a high school education. The record shows the claimant was 54 at the time of his injury. He was also left-handed.

The record shows that in October of 1988, the employer’s workers’ compensation carrier inadvertently sent a check for $26,800.20 to the claimant for temporary total disability. The check was supposed to be in the amount of $893.34. In April 1989, the employer filed a motion seeking reimbursement for the overpayment. The arbitrator entered an order reflecting the overpayment and suspended payments to the claimant until such time as the employer might owe in excess of the amount of overpayment.

A hearing before the arbitrator was held on December 6, 1989. In the written decision, the arbitrator found the claimant had suffered accidental injuries arising out of and in the course of his employment. Among other things, the arbitrator found the claimant was entitled to $299.15 per week for 57 weeks pursuant to section 8(e) of the Act representing a 30% loss of the use of his left hand. The arbitrator found the claimant had failed to carry his burden of proof regarding a wage-loss-differential award under section 8(d)(1) of the Act. The arbitrator found the record showed the claimant could drive a truck. The arbitrator concluded the condition of claimant’s left hand was not the reason for his not obtaining a truck driving job. The arbitrator found arrangements for the claimant’s attendance in truck driving school were made after the arbitrator’s order suspending payment of benefits by the employer. Therefore, the employer acted reasonably in not paying for the training.

The claimant sought review before the Commission. On June 14, 1991, with one commissioner dissenting, the Commission entered its decision. In pertinent part, the Commission concluded that the claimant was permanently incapacitated to the extent that he could not pursue his usual employment as an ironworker. The Commission found the claimant had sought vocational training, which the employer did not pay for. The claimant actively sought employment within his medical restrictions. The Commission found the claimant’s wage as a security guard fell within the range for jobs found by the rehabilitation specialist and that the job constituted suitable employment under section 8(d)(1) of the Act.

The Commission noted the record did not show what the claimant would have been able to earn as a ironworker after his injury. However, the record did show the claimant’s earnings prior to September 9, 1987. Based on the evidence in the record, the Commission calculated the claimant’s wage-loss differential to be $332 per week.

Although agreeing on the award of a wage differential, the commissioners disagreed as to what, if any, maximum limit was placed on such awards. The majority noted that section 8(d)(1) refers to the limits found in section 8(b) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(b)). However, the language of section 8(b) is unclear as to which limits found in that section apply to a section 8(d)(1) award. After analyzing the statute and case law, the majority concluded the maximum rate for PPD awards was not also the maximum rate for awards under section 8(d)(1).

One commissioner dissented, finding the award exceeded the rate provided by statute. The dissenting commissioner believed an award under section 8(d)(1) was a PPD award and subject to the same limits. Thus, he was of the opinion the claimant’s award was limited to $299.15 per week.

The circuit court confirmed and the employer appeals.

The employer argues the Commission’s award of a wage differential pursuant to section 8(d)(1) is contrary to the law and against the manifest weight of the evidence.

The employer contends the Commission erred in using the claimant’s wage at the time of his injury in calculating the wage-loss differential. The employer argues the statute and the case law require the use of the wage the claimant might have been earning as of the date of the arbitration hearing had he still been employed in the occupation engaged in at the time of the injury. The employer maintains the burden was on the claimant to present such evidence. No such evidence was presented, and thus the employer argues the claimant was not entitled to an award under section 8(d)(1). In reply, the claimant argues the Commission could reasonably infer that his potential earnings as an ironworker, as of the date of the arbitration hearing, would be the same as at the time of his injury.

A review of the cases in regard to the first issue raised by the employer shows the court has found it was proper for the Commission to use a figure reflecting what the claimant would have earned at the time of the hearing had the claimant still been in the position he occupied at the time of his injury.

In General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 495 N.E.2d 68, the claimant was injured on December 6, 1978, at which time the claimant held a job classification of RIO, earning $232.80 per week. After being off work for a period of time, attempting to return to work, and then being off work again, the claimant worked for a nine-month period in 1981, in the job classification R2. The record showed that at the time of the hearing before the Commission, RIO employees were earning $356 per week and R2 employees were earning $339.40 per week. Also at the time of the hearing before the Commission, the claimant testified she was earning $93.64 per week as a waitress.

The Commission awarded a section 8(d)(1) wage differential based on 66%% of the difference between the amount the claimant would have earned as an RIO employee at the time of the hearing before the Commission and the amount she earned as a waitress. On appeal, General Electric challenged the Commission’s use of the amount the claimant would have earned at the time of the hearing before it as an RIO employee rather than the amount she earned as an RIO employee at the time of her injury.

This court reviewed the statutory history of section 8(d)(1), noting that prior to amendments effective July 1, 1975, the statute referred to the use of the average amount earned “before the accident.” (See Ill. Rev. Stat. 1973, ch. 48, par. 138.8(d).) Thereafter, the statute referred to the average amount which the claimant “would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident.” (See Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1).) This court stated, “[T]he language of section 8(d)(1) after the 1975 amendment indicates that the Commission should calculate wage-differential awards based on the amount that a claimant ‘would be able to earn’ at the time of the hearing if the claimant were able to fully perform the duties of the occupation in which he was engaged at the time of the accident.” (General Electric, 144 Ill. App. 3d at 1014, 495 N.E.2d at 75.) This court found the employer presented no evidence the claimant would not still have been an RIO employee absent her injury.

The court went on to explain that use of this figure in calculating the differential provided a more realistic indication of the diminution in earning capacity.

In Deichmiller v. Industrial Comm’n (1986), 147 Ill. App. 3d 66, 497 N.E.2d 452, the claimant was working as a temporary union journeyman plumber at the time he was injured in April 1980. At the time, he was earning approximately $9 or $9.25 per hour. The claimant was yet to take an examination which would allow him to be a full union journeyman plumber. Testimony before the arbitrator on December 4, 1981, indicated a journeyman plumber earned $16.20 per hour. Subsequently, the claimant submitted into evidence a schedule of wage rates in effect from January 1, 1979, to May 31, 1982. On September 16, 1981, the claimant obtained a job as a sales representative paying $325 per week.

The arbitrator awarded the claimant benefits pursuant to section 8(d)(1) based on the difference between the average amount he would have been able to earn as a union journeyman plumber and the average amount he actually earned as a sales representative.

Before the Commission, the claimant testified he had left his employment as a sales representative. He testified he was currently employed as a car salesman making an average of $284.89 per week. In pertinent part the Commission determined it would be mere speculation to assume the claimant would have become a union journeyman plumber. Therefore, the Commission utilized the amount the claimant would have earned as a fourth-year apprentice plumber in making its section 8(d)(1) calculations.

On appeal, this court held the Commission correctly refused to assume the claimant would have been a union journeyman plumber. Citing General Electric, this court stated the evidence in the record did not permit the Commission to infer the claimant’s occupation at the time of his injury was that of a permanent union journeyman plumber. The court also held the Commission did not err in using the earnings of fourth-year apprentices in calculating the differential. The record showed the claimant had worked as a plumber for approximately 4% years prior to his accident.

The court noted there was no evidence in the record as to the earnings of a fourth-year apprentice plumber between May 31, 1982, and the date of the hearing before the Commission on November 29, 1982. Neither party had attempted to introduce evidence in this regard. The court held the Commission properly refrained from speculating on possible increases and used the wage rate as of May 31, 1982, rather than the date of the hearing.

In the instant case, the only evidence regarding the claimant’s earnings as an ironworker was his wage on the date of his injury in September 1987. There was no attempt by either party to update this figure. We find it was within the Commission’s discretion to use this figure, and not speculate on any possible change in wage rates between the date of the injury and the Commission’s award. In Deichmiller, this court held the Commission properly inferred the average amount based on what the wage was some six months earlier. In sum, we find no error in the use of the average wage as of the date of injury when that is the only evidence in the record.

Without citation to authority, the employer contends the Commission erred in utilizing the claimant’s wage as a security guard in calculating the wage-loss differential. The employer maintains the Commission should have used the figure the claimant testified he could have made as a truck driver.

Under section 8(d)(1) of the Act, the Commission, in making its calculation, is to look to the amount the claimant “is earning or is able to earn in some suitable employment or business after the accident.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1).) In the instant case, the Commission specifically found that the claimant’s employment as a security guard was suitable employment within his capabilities and work restrictions. The rate of pay fell within the range of pay for jobs located by the rehabilitation specialist. On these facts, we find this determination is neither against the manifest weight of the evidence nor an abuse of discretion. As in Deichmiller, the Commission properly refrained from speculating as to the claimant’s possible earnings in a theoretical position.

Again without citation to authority, the employer argues the arbitrator’s decision to award benefits under section 8(e) rather than section 8(d)(1) was proper and should be reinstated. The employer argues the arbitrator recognized the claimant’s proof problem regarding earnings. The employer contends the 30% loss of the use of the claimant’s hand was supported by the findings of Dr. Chuinard.

The Commission exercises original jurisdiction and is in no way bound by the arbitrator’s decision. Dillon v. Industrial Comm’n (1990), 195 Ill. App. 3d 599, 552 N.E.2d 1082.

As stated above, we find no error in utilizing the claimant’s wage as of the date of his injury to determine the wage-differential award under section 8(d)(1). It was within the discretion and authority of the Commission to award a wage differential under section 8(d)(1), rather than a scheduled loss under section 8(e). We see no reason to disturb this decision.

The Commission awarded the claimant a wage-loss differential of $332 per week for the duration of his disability. The employer argues the Commission majority erred in failing to limit the wage-loss differential as provided by statute. The employer argues this court has held that section 8(d)(1) awards are subject to the limits found in sections 8(b)(4) and (b)(5) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.8(b)(4), (b)(5)). (See General Electric, 144 Ill. App. 3d 1003, 495 N.E.2d 68.) Pursuant to these limits, the employer argues the loss differential should have been limited to $299.15.

The claimant agrees there is a maximum limit to section 8(d)(1) awards; however, he argues it is not $299.15. The claimant argues the statutory maximum rate is the rate in effect at the time of the award. The claimant also raises, apparently for the first time on appeal, the contention that the Commission has been erroneously calculating the statutory maximum rate since 1987. The claimant argues under a “correct” calculation, his award in this case did not exceed the statutory maximum. The claimant presents an extensive argument with numerous, complex calculations in support of this argument.

We find the claimant’s argument on the erroneous calculation issue waived because he did not raise the issue in the circuit court. See May v. Industrial Comm’n (1990), 195 Ill. App. 3d 468, 552 N.E.2d 258.

Section 8(d)(1) of the Act provides that compensation awarded under this section is “subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section” (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1)).

In General Electric, General Electric, like the instant employer, maintained the weekly loss differential awarded under section 8(d)(1) exceeded the maximum weekly compensation rate contained in section 8(b). This court stated that the maximum amount which can be awarded as a wage differential is determined by reference to sections 8(b)(4) and (b)(5) of the Act.

In the instant case, the majority of the Commission held that an award under section 8(d)(1) is grounded on a loss-of-wages theory. This contrasts with the other provisions for PPD (sections 8(c), (d)(2), and 8(e)), which are limited by a schedule and to a fixed number of weeks. (See Ill. Rev. Stat. 1987, ch. 48, pars. 138.8(c), (d)(2), (e).) The majority stated that while section 8(d)(1) refers to the limits found in section 8(b), the language of section 8(b) is ambiguous as to which limit found therein applies. The majority found that section 8(b)(4) sets the maximum weekly compensation rates for awards of temporary total disability (section 8(b)), permanent total disability (section 8(f)), and disfigurement (section 8(c)). (See Ill. Rev. Stat. 1987, ch. 48, pars. 138.8(b), (f), (c).) The majority found that sections 8(b)(1), (b)(2) and (b)(2.1) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.8(b)(1), (b)(2), (b)(2.1)), alluded to in section 8(b)(4), did not make reference to section 8(d)(1). The majority held it did not read section 8(b) as limiting the claimant’s award to the maximum amount allowed for PPD. The majority concluded it was not holding there were no limits to section 8(d)(1) awards, only that the PPD maximum was not that limit.

The dissenting commissioner opined the maximum rate found in section 8(b)(4) applied and limited the claimant’s weekly wage-loss differential to $299.15.

In looking at section 8(b), sections 8(b)(1) and (b)(2.1) are concerned with calculating and setting minimum rates for temporary total disability and compensation rates for awards under sections 8(c), (d)(2) and (e) of the Act. Section 8(b)(2) covers compensation in all cases other than those covered by sections 8(b)(1) and (b)(2.1); that is, sections 8(d)(1) and 8(f). Section 8(b)(4) establishes the maximum weekly compensation payable under awards referred to in sections 8(b)(1), (b)(2) and (b)(2.1). Therefore, as stated in General Electric, we find the maximum rate contained in section 8(b)(4) applies to section 8(d)(1) awards. The Commission majority erred in finding the limitations set forth in section 8(b)(4) did not apply to the claimant’s award.

Thus, we find the cause should be remanded for further proceedings to determine whether the claimant’s wage-loss-differential award exceeded the statutory limits.

For the foregoing reasons, we affirm the judgment of the circuit court of Morgan County awarding the claimant a wage-loss differential; however, we reverse and remand the cause to the Commission for a determination of whether that award exceeded the statutory limits set forth in section 8(b)(4).

Affirmed in part; reversed in part and remanded.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE WAYNE RIEGLE, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0776
    Argued May 11, 1993.
    Opinion filed June 24, 1993.

      Richard J. Doyle, of Law Offices of Richard J. Doyle & Associates, of Danville, and Alexander M. Wilson (argued), for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Dale Wayne Riegle appeals an order of the circuit court of Vermilion County denying a motion to withdraw his guilty plea. Defendant pleaded guilty to a number of drug charges, but moved to withdraw this plea prior to sentencing. The motion was denied, and defendant was sentenced to 14 years’ imprisonment. Defendant did not resubmit his motion to withdraw his plea, nor did he file a motion to reconsider sentence. Defendant now appeals both the denial of his motion to withdraw guilty plea and his sentence. He requests that his conviction and sentence be vacated and the cause remanded for trial or, in the alternative, that the cause be remanded for a new sentencing hearing before a different judge. We affirm.

On May 11, 1989, defendant was involved in a sale of 24.6 grams of cocaine to an undercover police officer. On August 8, 1989, agents for the Vermilion County Metropolitan Enforcement Group went to his place of business, placed him under arrest, and asked for consent to search his residence. Consent was given and 219.6 grams of 85% pure cocaine were seized from defendant’s home. Defendant then gave a taped statement acknowledging his involvement in the May 11, 1989, transaction and indicated that the cocaine found in his residence was being held for another individual. He claimed he would receive $200 for keeping the cocaine for this other individual and stated that he had held half-pound packages of cocaine 10 to 12 times in the last three months.

On June 10, 1991, defendant pleaded guilty to: count I — delivery of controlled substance (15 to 100 grams) on May 11, 1989 (Class X, 6 to 30 years); count II — possession of controlled substance with intent to deliver (100 to 400 grams) on August 8, 1989 (Class X, 9 to 40 years); count III — possession of controlled substance (100 to 400 grams) on August 8, 1989 (merger into count II); count IV — calculated criminal drug conspiracy on August 11, 1989 (Class X, 6 to 30 years); and count V — narcotics racketeering between January 25, 1989, and August 8, 1989 (Class 1, 4 to 15 years). In exchange for this plea, a 1990 felony count was dropped. In addition, defendant agreed to forfeit his home, bank accounts, and automobile, all of which had been named in a temporary restraining order (TRO) previously issued by the court.

Defendant first complains of five errors in the trial court’s Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) admonishments, which he argues rendered his guilty plea involuntary.

The first claim involves the fact that the trial judge misinformed defendant of the minimum and maximum sentence for count I. The court realized its mistake and corrected itself, but this mistake, combined with numerous interjections by the State’s Attorney, created an air of confusion.

Second, the trial judge described the punishment for count IV as “the same possible incarceration penalties as I just told you about.” The last penalty he had spoken about was 9 to 40 years on count II. The correct sentencing range for count IV is 6 to 30 years.

The third claim of error is that defendant was not advised of the maximum sentence that could be imposed because the trial judge failed to advise him of the possibility of receiving consecutive sentences.

In the fourth claim, defendant contends he was not advised of the forfeiture provisions of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 561/2, par. 1100 et seq.).

The fifth and final claim is based upon a typographical error in count IV. Count IV states that a drug conspiracy took place on August 11, 1989, rather than the correct date of May 11, 1989. This error was not noticed, and defendant pleaded guilty to count IV. This error first .appeared on the original bill of indictment and was not brought to the court’s attention until defendant filed his motion to withdraw his plea.

The State contends that defendant has waived all but one of his claims of error by his failure to include them in his motion to withdraw his guilty plea. The State argues that the only claim preserved for appeal is the issue regarding the incorrect date in count IV of the indictment. This argument is unfounded, since paragraphs 9 and 10 of defendant’s amended complaint clearly raise issues regarding the voluntariness of his plea and the fact that he did not understand the potential penalties under the plea agreement.

On our own motion, we consider whether defendant has failed to perfect his appeal by his failure to resubmit his motion to withdraw his guilty plea after sentence was handed down. Defendant’s motion to withdraw his plea was filed and denied prior to his sentencing on September 17, 1992. After sentencing, defendant filed a notice of appeal, but did not submit another motion to withdraw his guilty plea. Defendant’s motion to withdraw his plea, filed prior to sentencing, was inadequate to perfect his appeal under Supreme Court Rule 604(d), which states in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (Emphasis added.) (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992.)

We addressed this issue in People v. Hale (1979), 77 Ill. App. 3d 721, 396 N.E.2d 317, rev’d on other grounds (1980), 82 Ill. 2d 172, 411 N.E.2d 867, where our court asked:

“Can a motion to withdraw a plea of guilty be filed and heard prior to sentencing?
Yes.
But an appeal from a denial of such motion cannot be taken until after sentence and the filing of another motion to withdraw the plea.” (Emphasis added.) Hale, 77 Ill. App. 3d at 721-22, 396 N.E.2d at 318.

This rule was criticized in the Second District Appellate Court opinion in People v. Paul (1981), 93 Ill. App. 3d 302, 417 N.E.2d 251, where that court concluded that filing a second motion was wholly redundant and unnecessary. In People v. Ramage (1992), 229 Ill. App. 3d 1027, 595 N.E.2d 222, the second district explicitly overruled its Paul decision. Initially, the court noted that the failure of a defendant convicted on a plea of guilty to file a Rule 604(d) motion is a jurisdictional defect which prevents a court of review from entertaining an appeal from that judgment. The supreme court emphasized the mandatory nature of Rule 604(d) in People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221, where the court stated in clear terms that “rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” The Ramage court proceeded to embrace the rule laid down in Hale:

“Following Wilk, courts have construed Rule 604(d) narrowly and have insisted on strict rather than substantial compliance with the rule. (See People v. Dickerson (1991), 212 Ill. App. 3d 168, 171 (and cases cited therein).) It is now well settled that the timely filing of a Rule 604(d) motion after the imposition of sentence is a jurisdictional condition precedent to an appeal where a defendant has pleaded guilty.” (Emphasis added.) Ramage, 229 Ill. App. 3d at 1030, 595 N.E.2d at 224.

See also People v. Gamboa (1992), 225 Ill. App. 3d 668, 588 N.E.2d 457.

An exception to the mandatory nature of the rule has been found whenever the defendant has been misled by an insufficient admonition pursuant to Rule 605(b) (134 Ill. 2d R. 605(b)), which alerts defendant to the necessity of filing a motion as a prerequisite to appeal. No such problem exists in the case at hand. After imposing sentence, the trial judge advised defendant:

“You do have certain rights of appeal. The first step is to file a motion such as you already have filed to withdraw the guilty plea. It must be filed within 30 days of today’s date to state the reasons why you think you’re entitled to withdraw the plea or for reconsideration of sentence.”

Under our prior decision in Hale (accord Ramage), it would appear that we do not have jurisdiction to hear this appeal; however, because error in giving admonishments required under Rule 402 is alleged, it is possible a plain-error exception may apply. (See People v. Davis (1991), 145 Ill. 2d 240, 250-51, 582 N.E.2d 714, 719.) We will therefore address the merits of defendant’s appeal.

Defendant contends he cannot be said to have entered an intelligent and understanding guilty plea, in light of errors in the trial court’s admonishments required under Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)). In Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the Supreme Court held that it is a violation of due process for the court to accept a guilty plea in State criminal proceedings without an affirmative showing, placed on the record, that defendant voluntarily and understanding^ entered his plea of guilty. In response to Boykin, Supreme Court Rule 402 (134 Ill. 2d R. 402) was enacted and states, in relevant part:

“(a) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
* * *
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.” 134 Ill. 2d R. 402(a)(2).

Four of defendant’s five claims of error fall under Rule 402(a)(2). The first two claims involve the trial judge’s somewhat confused rendering of the sentencing range available under count I and the erroneous explanation of the sentence under count IV. The third claim involved the court’s failure to advise defendant of the possibility of consecutive sentencing, and the fourth was the failure to mention the forfeiture provisions included under count V.

In regard to the failure to advise defendant of the possibility of consecutive sentencing, the third claim, numerous court decisions have held that a misapprehension by defendant as to sentencing alternatives may render a guilty plea involuntary if defendant was actually unaware of the possible punishment. (People v. Davis (1991), 145 Ill. 2d 240, 249, 582 N.E.2d 714, 718.) However, our court has held that no prejudice results when a defendant is sentenced within the limits stated to him, even though these statements were understated. (People v. Culp (1984), 127 Ill. App. 3d 916, 925, 468 N.E.2d 1328, 1334; see also People v. Cherry (1975), 29 Ill. App. 3d 929, 332 N.E.2d 55.) As defendant received concurrent sentences, he has not been prejudiced.

The same theory applies to the trial court’s error regarding the sentencing range under count IV. The court implied the range to be 9 to 40 years, when it was actually 6 to 30 years. As the sentence handed down was only 14 years, defendant was not prejudiced. As to the court’s somewhat confused rendering of the sentence for count I, the trial record indicates the mistake was immediately corrected. Defendant was asked more than once if he understood the proceedings. If he or his counsel were confused by the sentencing on count I, ample opportunity was available for clearing the air.

The fourth and last claim of error falling under Rule 402(a)(2) is that the court failed to admonish defendant of the forfeiture provisions under count V. Defendant was charged with narcotics racketeering in violation of section 4 of the Narcotics Profit Forfeiture Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 561/2, par. 1654). Section 5 of the Forfeiture Act provides for fines and penalties applicable to this offense. (Ill. Rev. Stat. 1991, ch. 561/2, par. 1655.) Although defendant was correctly admonished of the potential fine of $250,000 under this section, no mention was made of the forfeiture provisions.

We agree with the State’s argument that defendant cannot reasonably claim he was prejudiced. The State explained at the outset of the plea hearing, in open court, the details of its negotiated plea with defendant, including details of the forfeiture. Furthermore, the court had already admonished defendant that he was subject to forfeiture provisions under count IV, calculated criminal drug conspiracy. (Ill. Rev. Stat. 1991, ch. 561/2, pars. 1405(b)(1), (c).) Furthermore, we cannot ignore the fact that defendant’s home, car, and bank accounts were already subject to a TRO issued previously by the court. Evidence of defendant’s prior knowledge of the forfeiture provisions is overwhelming.

Defendant’s fifth claim of error deals with the fact that count IV charged defendant with having engaged in a calculated criminal drug conspiracy (Ill. Rev. Stat. 1991, ch. 561/2, par. 1405(b)(1)) on August 11, 1989, three days after he was arrested on August 8, 1989. The correct date is May 11, 1989. At the hearing on this motion, defense counsel argued that his client’s willingness to plead guilty to a crime that he did not commit on that particular day is further evidence that defendant did not enter his plea of guilty in an intelligent and understanding manner. We find the error trivial and, since full discovery was furnished to defendant, he could not have possibly been surprised or prejudiced.

Our supreme court established the standard for overturning a trial court’s denial of a motion to withdraw guilty plea in Davis. The court found that the failure to properly admonish a defendant alone does not automatically establish grounds for reversing the judgment or vacating the plea. Whether reversal is required depends on whether real justice has been denied or whether defendant has been prejudiced by the inadequate admonishment. (Davis, 145 Ill. 2d at 250, 582 N.E.2d at 719.) We find no indication that the defective admonishment has prejudiced defendant. This case serves as an example of the value of having a memorandum prepared, prior to hearing, accurately stating the charges, potential sentences, and plea agreement. The existence of enhanced and extended sentencing factors, combined with various forfeiture provisions and penalties, may make preparation of such memorandum a necessity in the future.

Next, defendant argues the trial judge relied upon an improper sentencing factor. This issue was not raised by motion to withdraw the plea and is therefore waived. Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992.

At oral argument, defendant presented the issue of ineffective assistance of counsel. Because this issue was not included in a motion to withdraw guilty plea (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992) and was not argued in the written brief (see 134 Ill. 2d R. 341(e)(7)), we find the issue waived.

Affirmed.

KNECHT and COOK, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LORNA EDEN, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BROOKE JENKINS, Defendant-Appellee.
    Fourth District
    Nos. 4 — 92—0894, 4 — 92—0896 cons.
    Opinion filed June 24, 1993.

      Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Carey J. Luckman, of Pontiac, for appellee Loma Eden.
    No brief filed for appellee Brooke Jenkins.
   JUSTICE KNECHT

delivered the opinion of the court:

The State appeals from the grant of defendants’ motions to suppress evidence seized from their home. The Livingston County trial judge granted the motions because there were no exigent circumstances to warrant the police officers’ unauthorized entry into defendants’ home. The State contends this ruling must be reversed. We disagree and affirm.

I. Facts

On February 20, 1992, defendant Lorna Kay Eden was charged with contributing to the delinquency of a child, a Class A misdemeanor (Ill. Rev. Stat. 1991, ch. 23, par. 2361a). On the same day, defendant Brooke Jenkins was charged with unlawful possession of alcohol by a minor, charged as a Class A misdemeanor, and unlawful consumption of alcohol by a minor, a Class C misdemeanor. Ill. Rev. Stat. 1991, ch. 43, pars. 131(a), 134a.

On April 30, 1992, each defendant filed a motion to quash her arrest and suppress the evidence obtained against her. At the hearing in June 1992, Mike Gray, a City of Pontiac police officer, testified that shortly after midnight on December 20, 1991, he received a call at the Pontiac police station. The anonymous caller reported a large, loud, underage drinking party at 511 South Vermilion (511) in Pontiac, Illinois. The loud party was disturbing the caller’s sleep.

When Gray received the call, only he and Officer Jeffrey A. Muir were available to respond. Because they had previously experienced large numbers of people at such gatherings, Gray sought assistance from the Livingston County sheriff’s department to investigate the report. Sheriff’s deputies Jack Arnold, Ron Hoegger, and Ken White responded to the call for assistance.

Before going to 511, the officers met briefly at the police station. About 15 minutes elapsed from the time Gray received the call until the officers arrived at 511. Gray testified he did not necessarily have a sufficient number of officers to control the house because the house was large and he did not know how many people were inside. Gray and Arnold approached the front door while the other officers were positioned around the house to cover all exits. Gray made no attempt to contact the State’s Attorney to obtain a search warrant.

Gray testified he and Arnold walked onto the front porch. There were several windows in the front of the residence, including the window in the front door. There was a bay window to the right of the front door. According to Gray, from the front porch he could see the entryway of 511, part of the living room, and a portion of the kitchen.

By looking through the bay window, Gray saw three or four people playing cards at the kitchen table. He also saw a couple of people on the couch in the living room and a couple of people walking around. In total, according to Gray, he observed 8 to 10 people in the home. He did not see Eden. However, he saw a man named Bill Lewandowski and defendant Jenkins. He knew them from prior contacts. Each had alcohol in his or her hands. Lewandowski had a clear plastic cup containing an amber liquid that looked like beer. Gray conceded that apple or pineapple juice could also fit the description of the liquid. Gray also observed some beer cans and beer bottles. As he looked in the bay window to the right of the front door, he saw cups and empty Budweiser cans sitting on a table.

Gray informed the other officers he had seen minors with alcohol in their possession in the residence and he was going to knock on the door. When Gray knocked, defendant Jenkins came to the door and pulled the thin lace curtain to the side to see who it was. Gray saw what appeared to be a wine cooler in Jenkins’ hand. It had a label and was shaped like a wine cooler. Jenkins reportedly looked at Gray and Arnold, released the curtain, and fled backward. Gray could see her run. According to Gray, there was a lot of scuffling and he could see people inside the house running around.

Gray and Arnold opened the front door and entered the home. They did not inquire whether they could enter. Gray testified he was not aware of any felony or crime of violence being committed before they decided to enter the residence uninvited. The officers began to secure people. Gray and Arnold summoned the officers who had been surrounding the home. Additional officers arrived several minutes later to help transport people. According to Gray, before entering the residence, the officers did not contact the State’s Attorney to obtain a warrant because they did not feel a warrant was necessary.

Gray did not know whether they confiscated any evidence. The evidence consisted mostly of empty alcohol containers which were all over the house. They photographed the evidence. Eden and Jenkins were among those arrested; Eden was not taken to the police station because she was not required to take a breath test since she was an adult. The remaining individuals arrested are not involved in this appeal. While arresting the individuals, Gray and the other officers made observations, including how various individuals’ breath smelled. Gray testified that when he went to 511, he knew Eden was the owner or the tenant. Before he entered the home, he did not know whether other adults were present in the residence.

Muir testified he parked his squad car in the alley and approached the back door area of 511. After being told by Gray that he had seen minors drinking, Muir walked down the sidewalk that led directly to the rear entry of 511. He stood next to the back door. The door had a window from which he could see a stairwell, the kitchen area, and the basement.

Muir saw six people going up and down the stairs and a large keg of what he presumed was beer. There were a few people in the basement and people in the kitchen. He saw someone taking substance from the keg. He saw several adults and several minors. He identified two of the individuals and knew they were minors because of previous contacts he had with them. After observing these individuals, Muir radioed the other officers around the residence and told them there was a keg in the basement and he saw minors consuming alcohol. After Gray advised the other officers that he had entered the residence, Muir and additional officers entered the residence from the rear entry.

Before entering, Muir saw a few beer cans in the kitchen. The other alcohol Muir reportedly observed was the liquid in clear plastic cups, which he described as an amber or yellowish color. Muir conceded it was possible the liquid was pineapple juice, apple juice, or cream soda. Muir also saw cans and bottles in the backyard. He did not know whether they were from the December 20 gathering. Upon entering, Muir checked the keg. It contained beer. He also saw several clear plastic cups containing beer, and beer bottles and cans throughout the entire residence. Muir only entered 511 after he was told the other officers were entering. According to Gray, no owner, renter, or occupant of 511 had invited Muir, or any other officer, into the residence.

Eden testified she lived at 511 and was purchasing the residence through its owner. According to Eden, on December 20 and December 21, 1991, Jenkins, Donna Hoegger, and Troy Krueger also resided at 511. Eden did not give the officers permission to enter her home that night. When they arrived, she was upstairs in bed sleeping. She was awakened and told the police had entered her home. Defendant Jenkins testified that on December 20 and 21, 1991, she resided at 511. She did not authorize the officers’ entry into the home.

The trial judge initially denied defendants’ motions to quash their arrests and to suppress the evidence. The judge reasoned the officers likely could not have obtained a search warrant after the anonymous phone call and all evidence would have been destroyed if they had gone to get a warrant after Gray knocked on the door of 511 and Jenkins fled. The judge concluded these facts constituted exigent circumstances which justified the officers’ uninvited entry into 511.

After a hearing on defendants’ motions for reconsideration, the trial judge quashed defendants’ arrests and suppressed the evidence against them. This appeal followed.

II. Analysis

The State contends because the police acted reasonably and under exigent circumstances when they entered defendants’ home without a warrant, the trial judge erred by granting defendants’ motions to quash arrest and suppress evidence. The facts are not in dispute and credibility of the witnesses is not an issue. Whether exigent circumstances were present is a legal question which we review de novo. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197; People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543, 547; People v. Bosse (1992), 238 Ill. App. 3d 1008, 1009, 605 N.E.2d 593, 594.

Generally, if law enforcement officials have no warrant, a nonconsensual entry into a defendant’s home is improper unless exigent circumstances exist. (Payton v. New York (1980), 445 U.S. 573, 583, 63 L. Ed. 2d 639, 648-49, 100 S. Ct. 1371, 1378; Abney, 81 Ill. 2d at 168, 407 N.E.2d at 547.) To determine whether exigent circumstances exist, each case is evaluated by considering what the police knew at the time they acted and assessing whether their actions were reasonable under those circumstances. People v. Yates (1983), 98 Ill. 2d 502, 515, 456 N.E.2d 1369, 1376.

Although not exhaustive, the Illinois Supreme Court outlined the following factors to consider when evaluating whether exigent circumstances existed: (1) whether the offense under investigation was recently committed; (2) whether there was deliberate or unjustifiable delay by the police during which they could have obtained a warrant; (3) the gravity of the offense, particularly whether it involves violence; (4) whether the suspect is reasonably believed to be armed; (5) whether the police were acting on a clear showing of probable cause; (6) whether it was likely the suspect would escape if not apprehended quickly; (7) whether there was a strong reason to believe the suspect was on the premises; and (8) whether the non-consensual entry by the police was, nevertheless, peaceable. Foskey, 136 Ill. 2d at 75, 554 N.E.2d at 197, citing People v. White (1987), 117 Ill. 2d 194, 216-17, 512 N.E.2d 677, 685.

The State contends the trial judge erroneously concluded that because probable cause existed only for a misdemeanor offense and not a felony offense, exigent circumstances did not exist to justify the officers’ nonconsensual entry into defendants’ home. The trial judge relied on a second district opinion which concluded the odor of cannabis detected by a police officer was insufficient to authorize entry and search of defendant’s residence without a warrant. People v. Cohen (1986), 146 Ill. App. 3d 618, 624, 496 N.E.2d 1231, 1235.

The trial judge in this case observed the Cohen court had concluded unauthorized entry into a home where the police have probable cause to believe a misdemeanor offense, and not a felony, was being committed did not represent an exigent circumstance. The Cohen court also concluded, however, the evidence indicated the officer travelled through the house, to a remote bedroom, not to arrest defendant for a suspected offense, but to search for evidence of that offense or a different offense. It also considered additional factors which could indicate a compelling basis for entering a person’s home without a warrant. Cohen, 146 Ill. App. 3d at 626-27, 496 N.E.2d at 1236-37.

The trial judge in this case reviewed the facts presented and concluded, under Cohen, the facts did not indicate exigent circumstances existed. The trial judge’s observations do not indicate he relied solely on the fact the offenses which the officers observed being committed were misdemeanors and not felonies. However, the State’s primary argument on appeal is that we should not affirm the motions to quash and to suppress the evidence merely because the offenses the officers observed being committed were misdemeanors and not felonies.

The State notes this district has not limited the exigent circumstances exception to instances in which defendant is suspected of committing a felony. It contends we should not adopt such a rule. We need not address that question since we conclude exigent circumstances did not exist to justify the officers’ unauthorized entry into defendants’ home.

In Welsh v. Wisconsin (1984), 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091, the United States Supreme Court considered whether the fourth amendment prohibited the police from making a warrantless night entry of a person’s home in order to arrest him for a nonjailable traffic offense. A witness to defendant’s alleged erratic driving reported defendant’s actions to the police. The witness reported that defendant was either very ill or very inebriated. Defendant had abandoned his vehicle a few blocks from his home. The police learned defendant’s address by checking the vehicle registration and they proceeded to defendant’s home. When his stepdaughter answered the door, the police entered and arrested defendant for the offense of driving while intoxicated. Under Wisconsin law, this offense was a noncriminal, civil forfeiture offense for which no imprisonment was possible. Welsh, 466 U.S. at 742-43, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2093-94.

The supreme court of Wisconsin had identified three factors which established exigent circumstances existed to justify the officers’ entry into defendant’s home without a warrant: the need for hot pursuit of a suspect; the need to prevent physical harm to the offender and the public; and the need to prevent destruction of evidence, i.e., defendant’s blood-alcohol level. Welsh, 466 U.S. at 747-48, 80 L. Ed. 2d at 742, 104 S. Ct. at 2096.

Because defendant had already abandoned his vehicle and returned home, the concern for public safety was not warranted. Nor had the officers been in hot pursuit of defendant. The Court concluded the State’s only interest was in obtaining defendant’s blood-alcohol level to charge him with the nonjailable offense of driving while intoxicated. An additional important factor is the gravity of the underlying offense for which defendant is being arrested. In this case, the Court concluded, the State’s interest did not present a compelling need to enter defendant’s home without a warrant. Welsh, 466 U.S. at 753-54, 80 L. Ed. 2d at 745-46, 104 S. Ct. at 2099-2100.

The Court stated:

“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. [Citation.] When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut ***.” (Emphasis added.) (Welsh, 466 U.S. at 750, 80 L. Ed. 2d at 743, 104 S. Ct. at 2098.)

The State directs us to a footnote in Welsh which indicated the Court was not considering whether the fourth amendment may impose an absolute ban on warrantless arrests for certain minor offenses. Welsh, 466 U.S. at 749 n.11, 80 L. Ed. 2d at 743 n.11, 104 S. Ct. at 2097 n.11.

The next footnote reveals the Court would view with extreme caution any warrantless entry into a home when the offense for which defendant is being sought is a misdemeanor. The Court noted that even the dissenters in Payton, in which the Court prohibited warrantless home arrests absent probable cause and exigent circumstances, recognized the importance of limiting such arrests to those involving felony offenses. Welsh, 466 U.S. at 750 n.12, 80 L. Ed. 2d at 743 n.12, 104 S. Ct. at 2098 n.12.

The State distinguishes Welsh by noting the offense there was a noncriminal, civil forfeiture offense for which no imprisonment was possible and it was not committed in the presence of police. In Illinois, only business offenses and petty offenses are nonjailable. Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3(c)(5).

That officers observed what they suspected were misdemeanor offenses taking place does not automatically justify warrantless entry into a person’s home. Considering the relevant factors (see, e.g., White, 117 Ill. 2d 194, 512 N.E.2d 677), there was no compelling reason the officers could not have obtained a search warrant before entering defendants’ home.

The officers were not in hot pursuit of an armed felon. Applying the White factors, (1) the offense report being investigated was recently committed and/or ongoing; (2) no deliberate delay by officers occurred; (3) the suspected infractions cannot be described as grave and did not involve violence; (4) no one was reported to be armed; (5) the police do not appear to have had probable cause until they arrived at the house and saw minors holding what they suspected to be alcohol; and (6) the likelihood that persons in the house would escape was nil.

The officers had 511 surrounded and were stationed at each exit of the home. Those in the house did not even know the officers were present until Gray knocked on the door. After the officers observed the illegal consumption of alcohol, an officer could have gone to obtain a search warrant before defendants were summoned to the door. The additional officers could have remained to question persons if they attempted to depart from 511. While questioning them, the officers would have been able to observe each person’s actions and smell his or her breath to determine whether he or she had consumed alcohol. Moreover, as there was no testimony the officers observed a loud party when they arrived, we can only assume the anonymous neighbor was no longer being disturbed.

Although the officers’ entry was peaceful, such an action under similar circumstances may place at risk the lives of police officers, those in the residence, and innocent bystanders. Muir entered the rear door, apparently unannounced, after Gray entered the front door. Such an action could yield a dangerous response from a resident of a home. No factor indicated the officers’ warrantless entry into defendants’ home was a reasonable response to the officers’ observations that as few as two, and as many as several, minors were consuming alcohol. The officers’ entry could have escalated into a dangerous situation.

The State also directs us to the Illinois Supreme Court ruling in People v. Eichelberger (1982), 91 Ill. 2d 359, 369, 438 N.E.2d 140, 145, in which the court concluded exigent circumstances existed where the officers reasonably believed a felony was being committed in their presence. The officers’ warrantless entry into defendant’s hotel room was justified.

An officer had been informed that defendant was suspected of selling contraband from a particular hotel. The officer stationed himself in a room next to defendant. He saw defendant and another individual enter defendant’s room and heard defendant say he had some “grams” the person could have and he expected to get some “coke” in a few days. The door to defendant’s room was open (the degree to which it was open was not clearly established). The officer gave an arrest signal and defendant was arrested and searched. Eichelberger, 91 Ill. 2d at 363-64, 438 N.E.2d at 142.

Defendant in Eichelberger was allegedly in the process of committing a felony offense which the officers’ actions interrupted. Although the person to whom Eichelberger was allegedly selling contraband was a police informant, interrupting defendant’s actions at that point kept defendant from selling contraband to anyone else. In the present case, defendants’ suspected offenses were of a less serious magnitude, misdemeanors. In addition, although the suspected underage consumption was continuing, as minors were allegedly continuing to drink, their actions had already amounted to a completed offense. The officers’ intercession did not stop a crime from being committed.

The Eichelberger court also noted it may have been difficult to readily obtain a warrant because the alleged offense occurred in a small town on a Sunday morning. (Eichelberger, 91 Ill. 2d at 370, 438 N.E.2d at 145.) In this case, Gray testified the officers did not feel a warrant was necessary. There was no indication obtaining a warrant would have been difficult.

The facts and circumstances reflected in the second district opinion in People v. Olson (1983), 112 Ill. App. 3d 20, 21, 444 N.E.2d 1147, 1148, are similar to those in this case. In Olson, police officers were directed to defendant’s home shortly after midnight to investigate a report of a loud party. From the front porch, officers could observe certain activities occurring inside the home. An officer knocked on the front door. While waiting for a response, the officers saw a group of young people through the window. A party was apparently in progress and the participants seemed to be under 21 years old. The participants were seen drinking or carrying beer. After one of the youths responded to the knock, the officers observed a flurry of activity and entered the dwelling.

The Olson court concluded the nonconsensual, warrantless entry of the home to make an arrest was not permissible. It reasoned prompt police action was not necessary to protect the community or persons within the house. It further reasoned the delay attributed to obtaining a warrant would not have impeded an investigation or permitted a criminal to escape. It also noted the potential destruction of evidence, alone, was not sufficient to justify exigent circumstances. Finally, entry was improper because there was no evidence weapons were present in the home or violence was occurring, and the offense for which the officers wanted to arrest defendants was minor. Olson, 112 Ill. App. 3d at 24, 444 N.E.2d at 1150.

As in Olson, in this case, defendants’ actions were not threatening the safety of the community. Although consuming alcohol poses potential health and safety risks, these risks would not have been enhanced significantly in the time it may have taken the officers to obtain a warrant. Also as in Olson, there was no evidence weapons were present in the home or that violence was occurring.

The State relied on a potential destruction of evidence argument to justify the officers’ action. However, as the Olson court noted, destruction of evidence, standing alone, is not sufficient to justify warrantless entry of a home. (People v. Harrell (1992), 226 Ill. App. 3d 866, 877, 589 N.E.2d 943, 950; People v. Kelley (1982), 104 Ill. App. 3d 51, 54, 432 N.E.2d 630, 632.) Moreover, defendants could not have entirely disposed of the beer cans, beer bottles, and keg while an officer sought a search warrant and the other officers remained stationed around defendants’ home.

The Olson court also noted probable cause was not clearly established because the officers made no attempt to determine whether adults were present in the home who could have authorized consumption of alcohol by the minors. (Olson, 112 Ill. App. 3d at 24, 444 N.E.2d at 1150.) Because probable cause was not at issue at the trial level, we need not address it on review. We note, however, neither Gray’s nor Muir’s testimony indicated they considered whether adults were in the home who had the authority to permit consumption of alcohol by the minors as the law irrespective of its wisdom permits. Ill. Rev. Stat. 1991, ch. 43, par. 134a.

Neither do other cases relied on by the State compel reversal of the order quashing defendants’ arrest and suppressing the evidence against them. The State correctly notes the fact the offense involved in People v. Hart (1980), 88 Ill. App. 3d 484, 486, 410 N.E.2d 633, 634, was a misdemeanor was not determinative. However, the facts there are distinguishable. In Hart, defendant was sought for a Class A misdemeanor, reckless conduct involving the firing of a gun from a vehicle. Someone fired four shots through the bedroom window of a woman who had been involved in a vehicular accident in which defendant’s son had been killed. Witnesses testified the shots were fired from a black or dark-colored Trans Am or Camaro; other witnesses provided information that defendant’s son had purchased a black Trans Am about two weeks before his death. The car was found in defendant’s driveway and its hood was warm to the touch.

Due to the nature of the crime, the officers had reason to believe defendant was armed and dangerous. The offense had been committed nearly an hour before the officers arrived at defendant’s home. The Hart court determined exigent circumstances existed to justify a warrantless arrest. Moreover, it appears from the facts that defendant consented in Hart to the officers’ entry into his home. (Hart, 88 Ill. App. 3d at 487, 410 N.E.2d at 634.) The Hart court also rejected the defendant’s argument that there was no probable cause to permit a warrant-less entry.

In People v. Hoffstetter (1984), 128 Ill. App. 3d 401, 407, 470 N.E.2d 1247, 1251, the fifth district concluded that although the officers’ initial entry was lawful, their subsequent warrantless intrusion into living quarters at the rear of the store — based only on what they thought was the smell of cannabis — was unjustified. The court noted the odor of marijuana would only suggest the commission of a misdemeanor and would not permit warrantless entry. However, material facts relevant to a probable cause finding were also in dispute. We need not rely on this fifth district ruling to conclude the suppression orders here were proper.

People v. Logie (1990), 200 Ill. App. 3d 948, 955, 558 N.E.2d 514, 519, involved a nonconsensual entry into defendant’s home based on the offense of driving under the influence of alcohol (DUI). The Fifth District Appellate Court upheld the trial judge's order granting defendant’s motion to suppress. However, the evidence was suppressed apparently because the trial judge credited defendant’s testimony as more believable than the State trooper’s.

Had the officer’s testimony been more believable, the exigent circumstances factors involved in Lagle were more persuasive than those in this case. The officer had reportedly been in hot pursuit of defendant for DUI. The court indicated this is viewed as a serious offense in lilinois. Because of the offense, there was a very real possibility of destruction of the evidence, i.e., the alcohol in defendant’s blood would have dissipated if the officers sought a warrant before arresting him. Lagle, 200 Ill. App. 3d at 954, 558 N.E.2d at 519.

In this case, the persons in the residence could not have destroyed the evidence against them. The officers could have continued to surround the house until a warrant was obtained. The persons in the house had not attempted to flee from the officers because they were not even aware of the officers’ presence until Gray knocked on the door. In contrast, the gravity of the crime and the circumstances under which the defendant entered his home under the hot pursuit of the officers distinguish Lagle from the facts and circumstances in this case.

Exigent circumstances did not exist to justify the officers’ nonconsensual entry into defendants’ home. The evidence against defendants was properly suppressed and their arrests quashed.

The State finally argues even if the nonconsensual entry into defendants’ home was a violation of the fourth amendment, the trial court was not required to suppress the officers’ observations of defendants, statements made by defendants, and the results of the breathalyzer tests — the evidence obtained after defendants were removed from the home — based on illegal entry if police had probable cause to arrest defendants. The State relies on New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640, which held the exclusionary rule does not bar the State’s use of a statement made by defendant outside his home where the police had probable cause to arrest the suspect, even though the statement was taken after a nonconsensual, warrant-less entry into defendant’s home.

However, we need not consider the merits of this argument because the State failed to raise this issue at the trial level. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129.

The trial judge properly granted defendants’ motions to quash arrest and to suppress the evidence against them. Because the trial judge was not provided an opportunity to address the question whether the evidence obtained after defendants were removed from the home should be admissible, this argument was waived for review.

Affirmed.

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