author: JUSTICE LUND JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK DONNELLY, Defendant-Appellant.
    Fourth District
    No. 4—91—0397
    Opinion filed March 19, 1992.

      STEIGMANN, J., specially concurring in part and dissenting in part.
    Daniel D. Yuhas and John Anthony Palombi, 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 David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant Mark Donnelly was convicted of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12—11(a)(2)) and sentenced to 10 years’ imprisonment. He now appeals his conviction, claiming (1) the State did not prove him guilty beyond a reasonable doubt of entering the victim’s home without authority and, therefore, he could not be convicted of home invasion; (2) he was denied his sixth amendment right to effective assistance of counsel because his trial counsel failed to tender an instruction for the lesser offenses of battery or aggravated battery; and (3) he is entitled to 84 days’ credit against his prison sentence for time spent in jail, rather than 81 days’ credit as granted by the trial court.

Evidence at trial showed that at approximately 2:30 a.m. on August 20, 1990, the victim Alonzo Lemons and his girlfriend Lisa Gad-dis were sitting in the living room of their residence watching television. Their child was asleep in one of the bedrooms. The screen door leading into the living room was closed, but the main door was open. It would have been apparent to someone standing at the door that the home was occupied. Gaddis testified she saw defendant and two companions standing at the door. Defendant entered the home, followed by the others, without knocking or seeking permission to enter. She told Lemons (who was dozing) that they had company. Defendant then walked up to Lemons and began striking him. Gaddis’ child began to cry and she went into the bedroom, followed by one of defendant’s companions. Lemons called to her to telephone the police. When she attempted to do so, one of the men kicked in the bedroom door and tore the phone off the wall. After the men left, she observed that the living room was in disarray, with papers scattered around and vases broken. Lemons’ bedroom door had also been damaged and a mirror in the bedroom broken. Lemons himself had a broken nose, his face was bruised and cut, and one of his eyes was swollen nearly shut.

Lemons’ testimony regarding the incident was similar to that of Gaddis. He testified the screen door was closed and the main door was open. He said some friends of his had just left the house. Defendant simply walked into the house without an invitation and without knocking. Upon entering, defendant began hitting him. Defendant wanted some papers that Lemons had. When Lemons went into his bedroom to get the papers, defendant and one of the other men followed and continued to hit him. Defendant found the papers he wanted, and he and the others then left. The papers were letters Lemons had received from Lillian Donnelly, the widow of defendant’s brother John. John Donnelly had been killed, and Lillian was either a suspect or was charged with the killing. Lemons had had an affair with Lillian while she was married to John, and Lemons had revealed this fact to defendant. About a week prior to the incident, Lemons had told defendant that he had some letters Lillian had written to him (Lemons) that the prosecutor might find useful. Defendant asked Lemons to take these letters to the prosecutor himself. At the time of the attack, Lemons had not done so. There had been some tension between defendant and Lemons over the letters prior to the attack. Lemons testified that when he saw defendant that night, he had a feeling he knew why defendant was there.

Much of the testimony centered on the question of whether defendant had authority to simply walk into Lemons’ house without knocking and waiting for an invitation. Lisa Gaddis testified that one or two people had license to walk in without knocking, and she mentioned a specific friend of Lemons, Derrick Rice, who she said had such authority. She also testified that she was not alarmed when defendant walked into the house. Lemons testified he was friendly with defendant, and that defendant had been at his house on prior occasions. Both he and Gaddis indicated defendant had not been there for at least a month prior to the incident. Lemons testified defendant did not have authority to walk into his home without knocking first, and that he had not done so on prior occasions unless Lemons knew he was coming over. Defendant was not invited to his house the night of the incident. Lemons testified the only persons allowed to walk in without knocking were Derrick Rice and Lisa Gaddis.

Defendant did not testify, but a statement he gave to law enforcement authorities after his arrest was admitted into evidence. When asked why he and his companions had gone to Lemons’ house that night, defendant responded they had gone there just to talk to Lemons, to see whether he had gone to the police station to tell them what he knew about Lillian Donnelly. The statement included the following questions and answers as to the issue of consent for defendant to enter the Lemons home:

“[By detective]: When you arrived at the house, did you knock on the door?
[By defendant]: I tapped on the door.
[Detective]: When you tapped on the door, what happened?
[Defendant]: He looked at us as a look as to why did we tap.
[Detective]: Did he tell you to come in?
[Defendant]: Not verbally.
[Detective]: Did he tell you non-verbally to come in?
[Defendant]: I guess yeah.
[Detective]: How did he do that?
[Defendant]: It was more or less like a look as to why are you standing out there[.]
[Detective]: So what you are saying is that he never asked you verbally or non-verbally to come inside of the house, is that correct?
[Defendant]: It was[] more like a past agreement where I didn[’]t have to knock.”

Defendant’s aunt and mother testified that, in a conversation they had with Lemons after the incident, he told them he had invited defendant and his companions to his home that night. Lemons denied making this statement. Defendant’s mother also testified she had taken her son to Lemons’ house at least three times in the last year and had watched him walk in the door without knocking or ringing a doorbell. Lemons testified in response to this that if there were occasions when defendant would enter his house without knocking, it was because Lemons knew he was coming over, saw him at the door, and signaled him to enter.

We first address defendant’s contention that the State did not establish beyond a reasonable doubt that he entered Lemons’ house without authority and, therefore, he could not be convicted of home invasion. He further argues, should this court find he did have consent or authority from Lemons to enter his home in the manner he did, that we should not follow the “limited authority” doctrine espoused by some of our sister districts. This doctrine holds that even if a defendant has consent to enter, the consent is limited to the purpose for which defendant is granted entry. Exceeding the scope of that authority by threatening or injuring an occupant may render the perpetrator guilty of home invasion. See People v. Hudson (1983), 113 Ill. App. 3d 1041, 1044-45, 448 N.E.2d 178, 181; People v. Racanelli (1985), 132 Ill. App. 3d 124, 134-35, 476 N.E.2d 1179, 1186.

In order to prove defendant guilty of home invasion, one element the State had to prove beyond a reasonable doubt was that he entered Lemons’ residence without authority. Defendant believes the evidence demonstrated he had authority to enter the house. He points to testimony of Lisa Gaddis and Lemons that certain people customarily entered the house without knocking. He also admits, however, that both Gaddis and Lemons testified he was not invited into the house that night. Also, he refers to testimony of his mother and aunt that Lemons told them he had invited defendant to his house that night; he points out the denial by Lemons that he made this statement. In short, defendant sets out various conflicts in the testimony concerning what authority he had, if any, to simply walk into Lemons’ house. However, therein lies the problem. It is not the job of a reviewing court to weigh the evidence and reach a verdict; this is the exclusive province of the jury. Where sufficiency of the evidence is challenged, the task of a reviewing court is to decide whether, taking all evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U. S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Resolution of factual disputes and assessment of credibility of witnesses is for the jury to decide. A reviewing court may not reverse a conviction, unless the evidence is so unsatisfactory or improbable that a reasonable doubt remains as to defendant’s guilt. People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78; People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138; People v. Watson (1982), 103 Ill. App. 3d 992, 995, 431 N.E.2d 1350, 1353.

Viewing it in a light most favorable to the State, we cannot say that, after considering all the evidence, we have any reasonable doubt as to the State’s proof on this element of the offense. Therefore, we find there was sufficient evidence for the jury to find defendant guilty of home invasion.

Having decided the jury could have found beyond a reasonable doubt that defendant had no authority from Lemons to simply walk into his home, we need not reach defendant’s further argument urging us not to follow the “limited authority” doctrine regarding consent to enter an occupied residence.

We turn now to defendant’s second claim of error, in which he argues he was denied effective assistance of counsel because his attorney failed to tender a jury instruction on the lesser offenses of battery or aggravated battery. He maintains he was prejudiced by this failure because of the closeness of the evidence. The State disputes this claim, saying that battery and aggravated battery are not included offenses of the crime of home invasion and, therefore, defense counsel was not ineffective in not tendering such instructions. Alternatively, the State argues that even if defense counsel erred in not tendering such instructions, defendant was not prejudiced because the evidence clearly showed he was guilty of home invasion and it is unlikely the jury would have acquitted him of that crime and found him guilty of only aggravated battery.

Defendant claims an accused is entitled to a jury instruction on a lesser offense when the charge sets out the main outline of that lesser offense. In this case, defendant points out the information charging him with home invasion also included an allegation that he intentionally inflicted injuries on Lemons. He also points out that the charge, as well as the evidence at the trial, would have supported jury instructions on battery or aggravated battery.

Where an accused is charged with a single offense, he cannot be convicted of an uncharged offense, unless that offense is an included offense of the one charged. (People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319; People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898.) An included offense is one established by proof of the same or less than all of the facts, or a less culpable mental state, or both, than that which is necessary to establish commission of the charged offense. (Ill. Rev. Stat. 1989, ch. 38, par. 2—9.) In order for an offense to be an included offense, it must not have any elements that are not also present in the greater offense, so that it is impossible to commit the greater offense without also committing the in-eluded offense. People v. Williams (1989), 191 Ill. App. 3d 269, 547 N.E.2d 608.

This court held in People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272, that aggravated battery is not an included offense of home invasion. It was observed that the aggravated battery statute involves the element of “great bodily harm” (Ill. Rev. Stat. 1989, ch. 38, par. 12—4), whereas the home invasion statute requires only an infliction of any injury. In addition, entry of a residence is an element of home invasion, while such entry is not an element of aggravated battery. (Tate, 106 Ill. App. 3d at 778, 436 N.E.2d at 275; see also People v. Triplett (1985), 138 Ill. App. 3d 1070, 487 N.E.2d 39 (first district citing Tate with approval).) Applying the rationale of Tate to this issue, we find that battery is not an included offense of home invasion. As Tate has pointed out, the element of entry into a dwelling, which is required for a home-invasion conviction, is not an element of battery.

However, even were we to find that battery is an included offense of home invasion, we could not conclude that defendant was prejudiced by his counsel’s failure to tender such instructions. In order to sustain a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, and that this deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) A defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

In the instant case, the evidence was not particularly close on the question of whether defendant had authority or consent from Lemons to enter his home. Lemons testified defendant did not have permission to simply walk into his house. Lemons’ girlfriend also testified defendant was not invited into the house, and that he did not have a standing invitation to walk into the house at any time. The only real conflict in testimony came from defendant’s aunt and mother, who both testified Lemons told them after the incident that he had invited defendant to the house that night. Lemons denied this. The jury could have considered the testimony of defendant’s aunt and mother to be suspect, given their relationship to defendant. We also note that defendant’s own statement to the police, which was introduced into evidence, did not indicate he had been invited to Lemons’ house. This further puts the testimony of his aunt and mother in doubt. The jury could easily have found from all the evidence presented that defendant had no authority to enter Lemons’ house and that he was, in fact, guilty of home invasion. We believe it unlikely that the jury would have acquitted defendant of home invasion and found him guilty of battery, even if an instruction on battery had been given.

We turn to defendant’s final assignment of error, which relates to the number of days of credit which should be given against his sentence “for time spent in custody as a result of the offense for which the sentence was imposed,” under section 5 — 8—7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—7(b)). The sentencing order of the trial court in the present case fixed 81 days of credit for time served. Defendant claims 84 days would be the correct number, and the State contends 83 days would be the correct number.

Alleged error of this type is commonly presented in criminal appeals before this court. Most often the alleged errors have not been brought to the trial court’s attention prior to the appeal. Because of this continuing problem, we deem it necessary to suggest certain procedures to the various trial courts of this district.

In the present case, the presentence report indicated: “Jail Time 8/22/90 to 9/18/90 and 2/7/91 to present.” The sentence was entered on April 2, 1991. The defendant is entitled to credit under the authority of section 5 — 8—7(b) of the Code for any part of any day he is in custody. People v. Compton (1990), 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645.

CALCULATION OF DEFENDANT’S DAYS OF CREDIT
August 1990 (subtract 21 from 31 — 21 must be used so credit for August 22 is given): = 10 days
September 1990: = 18 days
February 1991 (subtract 6 from 28): = 22 days
March 1991: = 31 days
April 1991: - 2 days
Total days of credit earned as of day of sentencing: = 83 days

Additional time will be added for days defendant is held in the county jail after sentencing and before transfer to the Department of Corrections (DOC). The DOC has sufficient information as to additional time served after sentencing and prior to transfer to the penitentiary, and it makes the appropriate additional credit applicable to defendant’s sentence.

Section 5 — 8—7(b) of the Code is absolute, and there is no room for discretion. Credit must be given, and computation of the credit is basically an administrative function, but sentencing itself is a judicial function. The credit time is usually shown in the “Judgment and Sentence,” and is part of the “Mittimus for State Penal Institutions.” This document is often dated, as in the present case, some days after the sentencing hearing and may not be seen by the defendant. It is, however, a part of the record on appeal.

Because of the statutory right to the credit, we hold that the error in computing the credit is not waived by failure of the defendant in this case to call the error to the trial court’s attention. However, proper trial-court practice at the time of sentencing would include taking a few additional minutes to discuss credit-time computation with the prosecutor, defense counsel, and defendant — and then fix the number of days. From our experience, that effort might well avoid the loss of labor necessitated in the appellate process and the remandment process.

Defendant’s conviction is affirmed. The cause is remanded to the circuit court for amendment of the order of judgment and sentence to grant defendant credit for 83 days against his sentence for time served, including the date of sentencing.

Affirmed and cause remanded with directions.

McCullough, j., concurs.

JUSTICE STEIGMANN,

specially concurring in part and dissenting in part:

I agree that defendant’s conviction should be affirmed, but because I do not agree that the cause should be remanded for amendment of the sentencing order, I respectfully dissent from that portion of the opinion.

Although I agree with the suggestions and much of the analysis contained in the majority opinion, I do not believe that opinion goes far enough in clarifying what procedures the trial courts should employ when determining a defendant’s credit for time served.

Section 5 — 8—7(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—7(b)) provides that a defendant “shall be given credit on [his] *** sentence *** for time spent in custody as a result of the offense for which the sentence [to prison] was imposed.” That section does not specifically provide that the trial judge shall determine how much credit is to be given a defendant, but any contrary reading of the statute makes no sense. After all, sentencing is a judicial function, and just as trial judges determine the sentence to impose, they are responsible for determining how much credit a defendant is due under section 5 — 8—7(b) of the Code for time served.

I disagree with the statement in the majority opinion that “computation of the credit [for time served] is basically an administrative function, but sentencing itself is a judicial function.” (226 Ill. App. 3d at 779.) I fear that ambiguous statement may be viewed by some trial judges as an invitation to delegate their responsibilities. In my opinion, this judicial function is not delegable to personnel from the sheriff’s office, the circuit clerk’s office, the State’s Attorney’s office, the public defender’s office, or anywhere else. Instead, the trial judge retains the responsibility to ensure that the sentenced defendant receive all of the statutorily mandated credit for time served to which he is entitled. Given the frequency with which the parties dispute, or are uncertain about, how much credit a defendant is due, the trial judge should resolve this issue at the time of the sentencing hearing after the judge has given the parties an opportunity to address it on the record.

In order to perform its judicial function of determining how much credit for time served a defendant is due, the trial court should direct the probation office to include within its presentence report both a listing of all of the days defendant was in custody on the charge for which he is to be sentenced and the total of days for which defendant is entitled to credit. By adding together the days of the defendant’s custody and providing this figure in the presentence report, the probation office relieves the court and counsel of the need to do so themselves. In obtaining this information regarding the number of days defendant was in custody, the probation office should consult the sheriff’s department and State’s Attorney, as well as defendant and his counsel, in order to ensure the accuracy of the information it provides to the court.

In People v. Powell (1990), 199 Ill. App. 3d 291, 294-95, 556 N.E.2d 896, 898, this court wrote the following regarding information presented in the presentence report at the sentencing hearing and the duty of defendants with regard thereto:

“Given the quoted statutory provisions regarding presentence reports and sentencing hearings, we hold that all information appearing in a presentence report may be relied upon by the sentencing judge to the extent the judge finds the information probative and reliable. In so holding, we are not requiring the judge to specify for the record those portions of the presentence report upon which the judge is relying.
To the extent that either the defendant or the State may believe that the presentence report contains inaccuracies, we hold that they have the burden to call any such inaccuracy to the court’s attention at the start of the sentencing hearing. The better practice would be for the court, at the start of the sentencing hearing, to inquire of all counsel whether they have received the presentence report and whether they found any inaccuracies therein. However, irrespective of whether this practice is followed, we hold that the failure to object to any alleged inaccuracies in the presentence report waives that claim on appeal.” (Emphasis in original.)

I see no reason why information contained in the presentence report regarding how much credit defendant is due under section 5 — 8— 7(b) of the Code should be treated differently than any other information contained in that report. Accordingly, this court should hold that a defendant’s failure at the sentencing hearing to contest the information contained in the presentence report regarding how much credit he is due for time served (which figure the court ultimately accepts) waives any claim as to insufficient credit for purposes of appeal. In support of this position, I note that section 5 — 3—4(b)(2) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005—3—4(b)(2)) requires that the presentence report be provided to the prosecutor and defense counsel at least three days prior to the sentencing hearing. That statutory mandate ensures that the parties will have sufficient time to investigate (to the extent that they wish) the calculations in the presentence report regarding how much credit the defendant is due for time served.

On the other hand, if trial courts fail to follow these guidelines, causing the question of defendant’s credit for time served not to be fully addressed at the sentencing hearing, or causing uncertainty in the record as to whether the trial judge or some other official ultimately resolved that issue, this court should hold that defendant has not waived the issue on appeal. In appropriate cases, we should reverse and remand on that issue when our calculations from the record on how much credit defendant is due differ from the credit defendant seems to have been given at the trial level.

In the present case, the presentence report listed the days defendant was in custody but did not total them. The trial court must have done so, however, because it gave defendant credit for 81 days spent in custody. On appeal, defendant claims he is entitled to 84 days of credit. The State concedes defendant is entitled to additional credit, but disputes the amount, claiming he is entitled instead only to 83 days of credit. The majority agrees with the State and remands with directions that the sentencing order be amended to give defendant credit for 83 days served, instead of the 81 days presently shown on the sentencing order. I disagree with that remand.

Although the better practice for the trial court in the present case would have been to direct the probation office, when preparing the presentence report, to total the number of days of credit defendant was due, the presentence report nonetheless set forth the days defendant was in custody. At no time during defendant’s sentencing hearing did he raise the issue of credit for time served. He elects to do so for the first time on appeal, and the majority opinion does not explain why we should let him. The only comment by the majority on this point is the following: “Because of the statutory right to the credit, we hold that the error in computing the credit is not waived by failure of the defendant in this case to call the error to the trial court’s attention.” 226 Ill. App. 3d at 779.

The majority’s analysis does nothing to distinguish this defendant’s claim on appeal for the proper amount of credit for time served from some other defendant’s claim on appeal that his restitution order was not calculated in compliance with the applicable statutory provisions. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6.) Yet the latter was precisely the argument that this court rejected in Powell. There we held that the defendant waived the issue of whether the presentence report contained inaccuracies regarding the restitution he should pay because he failed to raise that issue at the trial level. See Powell, 199 Ill. App. 3d at 294-95, 556 N.E.2d at 898.

The sound use of our limited judicial resources requires that we impose a duty upon litigants to make their grievances known to the trial court, instead of requesting relief for the first time on appeal. To hold otherwise squanders these precious resources. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    MT. ZION STATE BANK AND TRUST, Plaintiff-Appellant, v. LENDON WEAVER, Defendant-Appellee (Adam Lime, Inc., et al., Defendants).
    Fourth District
    No. 4—91—0509
    Opinion filed March 19, 1992.

      Mariann Pogge, of Springfield, for appellant.
    William F. Tracy II, James W. Cox, and Megan Paisley, all of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On June 21, 1990, plaintiff Mt. Zion State Bank & Trust brought suit in the circuit court of Moultrie Comity (1) against defendant Adam Lime, Inc. (ALI), for breach of a contract to purchase real estate; and (2) against defendants Lendon Weaver and Larry Edwards for breach of personal guarantees for performance by ALI of its obligations on that contract. One law firm appeared for and filed answers on behalf of all three defendants. The court entered an order striking all defendants’ affirmative defenses. On December 28, 1990, the court granted summary judgment in favor of plaintiff and against all defendants finding them jointly and severally liable to plaintiff in the sum of $32,376.25.

After certain supplementary proceedings in which plaintiff sought to collect upon the judgment, on February 27, 1991, defendant Weaver filed a verified petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) seeking relief from the judgment. New counsel not representing other defendants presented this petition and has represented Weaver thereafter. On April 1, 1991, plaintiff responded to Weaver’s section 2 — 1401 petition with a pleading entitled “Response to Petition For Relief from Judgment,” which attacked the sufficiency of Weaver’s section 2 — 1401 petition and asked that the relief requested be denied. The circuit court conducted a hearing on April 3, 1991, at which no evidence was introduced. By order reduced to writing and filed on April 25, 1991, the court allowed Weaver’s petition and set aside the judgment entered against Weaver. Plaintiff filed a petition for rehearing which was denied by the court on June 11, 1991. Plaintiff appeals pursuant to Supreme Court Rule 304(bX3) (134 Ill. 2d R. 304(b)(3)). We affirm.

Section 2 — 1401 of the Code permits a party to obtain relief from a judgment when the petition for relief is filed after the circuit court has lost jurisdiction of the case as long as the petition is filed within two years of entry of the judgment with additional time allowed under certain circumstances. The procedure replaces such common law remedies as writs of error coram nobis and bills of review and is comprehensive. To obtain relief setting aside a judgment against the petitioner, the petitioner must make verified specific allegations setting forth (1) the existence of a meritorious claim or defense; and (2) exercise of due diligence by the petitioner in (a) presenting the claim or defense in the original action, and (b) presenting the section 2 — 1401 petition. The circuit court has substantial discretion in ruling upon such a petition, and its decision will not be set aside on review absent an abuse of that discretion. (See Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381, 1386.) We hold that the circuit court did not abuse its discretion here.

The parties do not dispute that defendant ALI had failed to make the payments required by its contract with plaintiff. The answer to plaintiff’s complaint filed on behalf of Weaver denied that consideration was given for his guaranty and denied he signed the guaranty in such a way as to bind him personally. On behalf of all defendants, affirmative defenses were filed which alleged that plaintiff knew of and withheld from defendants information concerning toxic waste contamination of the property subject to the contract of sale. The theory of the defenses was that plaintiff’s conduct constituted fraud and the condition of the property made the title unmarketable. Weaver’s section 2 — 1401 petition realleged many of these defenses. Ordinarily, a defense adjudicated and rejected in the underlying action cannot be used again to satisfy the requirement of section 2 — 1*401 that a showing be made that a meritorious defense exists. Frandsen v. Anderson (1969), 108 Ill. App. 2d 194, 202, 247 N.E.2d 183, 187.

One matter raised in defendants’ section 2 — 1401 petition which had not been raised and adjudicated in the underlying action concerned the execution of the guaranty. It was on a sheet which was attached to the back of the contract which in turn was attached to plaintiff’s complaint. That document stated:

“GUARANTY
The undersigned, for due consideration, receipt of which is hereby acknowledged, hereby jointly and severally, personally guarantee the performance of all agreements and covenants herein of ADAM LIME, INC., including but not limited to payment of the purchase price hereunder, and agree to be liable on this Agreement to the same extent as ADAM LIME, INC. No renewal or extension of time for payment under said Agreement, no delay, forbearance or omission in exercising any right or power with respect to the Agreement or enforcing any of the terms of the Agreement shall affect the liability of the undersigned. The undersigned further jointly and severally waive demand, notice of dishonor or default of ADAM LIME, INC. under the Agreement and further waive all demands and notices of any kind in connection with this Guaranty or the Agreement.”

The document was then dated August 14, 1989, and contained, at the bottom, the following signatures in longhand in this order and with the first on top of the second: (1) “Larry T. Edwards — Director”; and (2) “London Weaver — President.” Weaver’s petition asserts that his execution of that document was obtained by the fraud of one of plaintiff’s agents.

In regard to the execution of the guaranty, Weaver’s section 2 — 1401 petition alleged (1) he was an employee of another enterprise of which defendant Edwards was the principal shareholder; (2) Edwards ordered Weaver to serve as president of defendant ALI; (3) Weaver did not participate in the financial affairs, management or operation of ALI and ¡ was told he served as a “convenience” to Edwards; (4) Weaver received no compensation for serving as president; and (5) Weaver never gave permission for ALI to enter into the contract which is a subject of this litigation.

Weaver’s petition further alleged (1) on or about August 14, 1989, he was present at a meeting with Edwards and John Schwander, an agent of plaintiff; (2) at that time they presented to him a separate sheet which they said was the last page of an extension of a lease; (3) they told him he was not personally liable on the document; (4) in reliance on the foregoing representations, he signed the document without reading it; (5) that document was subsequently attached to the contract upon which plaintiff has sued; (6) after that first document was signed, Edwards presented to Weaver the document entitled “Guaranty,” which was on a single sheet, and demanded he sign it; (7) Edwards and Schwander both assured Weaver he would incur no personal liability from signing the guaranty; and (8) in reliance upon those representations, Weaver signed the guaranty without reading it.

As we have indicated, the only pleading plaintiff filed in opposition to the section 2 — 1401 petition asked for denial of the petition solely upon the basis that the petition was legally insufficient. The record does not indicate that plaintiff offered any evidence to counter the petition nor has plaintiff complained about being unable to do so. No counteraffidavits were offered. Thus, for the purpose of our decision here, the factual allegations of the verified petition will be taken as true. Even so, the question of whether a sufficient showing of the existence of fraud involved in the execution of the guaranty is a close question, but we deem the allegations sufficient to show Weaver had a meritorious defense in that respect.

As plaintiff correctly points out, for fraud to be sufficient to vitiate a contract, it ordinarily must involve a misrepresentation of a material fact which induces the party defrauded to act. (Wilkinson v. Appleton (1963), 28 Ill. 2d 184, 187, 190 N.E.2d 727, 729.) When the fraud involves the execution of an instrument, the misrepresentations must be such as to induce the party allegedly defrauded to execute an instrument which he did not intend to execute. Papke v. G.H. Hammond Co. (1901), 192 Ill. 631, 635, 61 N.E. 910, 912.

If the execution of the guaranty alone was all that was involved, we probably would be ruling contrary to existing precedent if we held that fraud in the execution was shown to have occurred. The only misrepresentation which defendants’ agent was stated to have made concerning the “Guaranty” was that its legal effect would not subject Weaver to personal liability. Where, as here, Weaver had full access to the “Guaranty,” he would ordinarily not be permitted to rely upon representations made to him as to the legal effect of the document. Jursich v. Arlington Heights Federal Savings & Loan Association (1982), 110 Ill. App. 3d 847, 852, 441 N.E.2d 864, 868; Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App. 3d 694, 699-700, 320 N.E.2d 256, 260; but see W. Keeton, Prosser & Keeton on Torts §109, at 758-60 (5th ed. 1984).

Here, the “Guaranty” document does not stand by itself because it was a guarantee for the performance of a contract. The undisputed allegation of the section 2 — 1401 petition is that Weaver was induced to sign that contract on the basis of a false statement made or acquiesced in by an agent of plaintiff. Unlike the alleged statements concerning the legal effect of the “Guaranty,” the alleged statement in regard to the nature of the first document Weaver was requested to sign was a statement of fact and one which was alleged to be knowingly false. A rule that a person signing a contract is under a duty to read it and cannot complain as to misrepresentations as to its contents has long prevailed in this State. (Leon, 23 Ill. App. 3d at 699-700, 320 N.E.2d at 260.) The recent trend may be toward a lessening of the above rule. (See W. Keeton, Prosser & Keeton on Torts §108, at 751-52 (5th ed. 1984).) In any event, that rule is not operative here where Weaver alleged he was only shown the signature page of the contract.

Clearly, Weaver’s liability on the “Guaranty” depended upon the validity of the underlying contract. If his execution of that contract was procured by fraud on the part of plaintiff, that fraud would vitiate not only the underlying contract but also the “Guaranty.” Ever since the decision in Ellman v. De Ruiter (1952), 412 Ill. 285, 106 N.E.2d 350, section 2—1401 and its predecessor, section 72 of the Civil Practice Act (see Ill. Rev. Stat. 1981, ch. 110, par. 72), have been intended to have a broad scope covering many situations where, in fairness, a party should be entitled to some relief. This is such a case. We hold a sufficient showing was made that Weaver had a meritorious defense.

The record strongly indicates (1) Weaver was not dilatory in failing to charge plaintiff in the circuit court with fraud in the inducement to obtain signature, and (2) he was not dilatory in bringing his section 2— 1401 petition. His justification for not proceeding earlier resulted because he was represented up to the time of the judgment for $32,376.42 by the same law firm that was representing ALI and Edwards.

Plaintiff’s section 2 — 1401 petition alleges that on or about June 29, 1990, he was served with summons in the underlying case and “immediately” inquired of Edwards and ALI as to what he should do, and they informed him that only ALI was involved and they would obtain counsel and he need not do so and should not do so as it would jeopardize the bankruptcy reorganization status of Edwards’ firm, Edwards Farm Supply Company. Weaver further alleged that the law firm representing ALI never contacted him for any purpose nor advised him, and it filed affirmative defenses on his behalf without contacting him. Weaver maintained he did not meet any member of that firm until January 1990 j when the supplementary proceedings on the judgment had commenced.

A general rule exists which provides that in regard to the rights of an opponent, a litigant generally cannot obtain relief because of failure of his counsel to keep abreast of matters or to advise him. A rule has been stated that in regard to obtaining section 2 — 1401 relief a litigant has a duty to follow the case although represented by counsel. (Gold v. Rader (1990), 201 Ill. App. 3d 775, 559 N.E.2d 210; Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 393 N.E.2d 707.) However, a litigant who reasonably believed an attorney was properly representing him in an action was held not responsible for the attorney’s lack of diligence where the chief reason for that lack of diligence was an ongoing problem with alcohol. (Campbell v. White (1989), 187 Ill. App. 3d 492, 543 N.E.2d 607.) Similarly, in Leavens, Armiros & Ross, Ltd. v. English (1990), 203 Ill. App. 3d 16, 560 N.E.2d 1031, special consideration was given to a section 2 — 1401 petitioner whose attorney had died.

Here, the alleged conduct of trial counsel for Weaver went beyond mere lack of diligence. The allegations indicated a conflict of interest between the representation of Weaver’s interest and that of Edwards. We note again that the equitable powers of the court are involved in the determination of whether section 2 — 1401 relief should be granted (Ellman, 412 Ill. at 292, 106 N.E.2d at 353-54; Tsuetaki v. Novicky (1983), 158 Ill. App. 3d 505, 512-13, 509 N.E.2d 1019, 1025), and the discretion vested in the circuit court when such relief is requested. The circuit court was well within its discretion in determining that Weaver exercised sufficient diligence under the circumstances alleged here.

At the hearing on plaintiff’s motion for rehearing as to the section 2 — 1401 petition, plaintiff presented the testimony of Stephen P. Myers, an attorney, who testified that he had been an attorney for Weaver. The trial court overruled Weaver’s objection to the testimony based upon Weaver’s contention that the testimony violated his attorney-client privilege. The substance of the testimony was that Weaver had contacted him after being sued and he advised Weaver he could be held liable on the “Guaranty” but that Weaver chose not to hire him. This testimony, if permissible to be considered, goes entirely to Weaver’s diligence and does not concern the viability of his defense. We do not deem the evidence to negate the equity in Weaver’s position that he was assuming the firm hired by Edwards would look out for and protect Weaver’s interest. The court did not err in denying the motion to reconsider.

We affirm the orders granting the section 2 — 1401 relief vacating the judgment as to Weaver and denying plaintiff’s request for rehearing. The case may now proceed on its merits.

Affirmed.

KNECHT and COOK, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF CAROLEE J. BAUMGARTNER, Petitioner and Counterrespondent-Appellee, and WILLIAM K. BAUMGARTNER, Respondent and Counterpetitioner-Appellant.
    Fourth District
    No. 4—91—0585
    Opinion filed March 19, 1992.
    Rehearing denied April 30, 1992.
    Stephen R. Ryan, of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellant.

      Priscilla Ragle Ebdon, of Charleston, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by respondent William K. Baumgartner from an order of the circuit court of Moultrie County denying his petition for post-judgment relief made pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). This court has previously considered direct and cross-appeals by the parties from the judgment of dissolution of the marriage of Carolee J. Baumgartner and respondent. (In re Marriage of Baumgartner (4th Dist. 1990), No. 4—89—0905 (unpublished order under Supreme Court Rule 23), appeal denied (1991), 136 Ill. 2d 541, 567 N.E.2d 328.) In this current appeal, respondent raises two issues, to wit: whether the trial court committed an abuse of discretion in denying respondent’s section 2 — 1401 petition, and whether, in considering respondent’s section 2 — 1401 petition, the trial court should have invoked equitable powers of justice and fairness to prevent petitioner from obtaining an unfair, unjust and unconscionable result.

For the purpose of this appeal, it is unnecessary to set forth in detail the relationship of the parties and the issues raised in the earlier appeal. On November 28, 1988, the trial court entered the judgment of dissolution. The finality of that order was delayed until additional issues were decided in the trial court. The issue of attorney fees was determined on October 26, 1989, and thereafter the parties filed a direct appeal and a cross-appeal.

Among the numerous issues raised on direct appeal were respondent’s challenges to the trial court’s valuation of a farm corporation. In its decision, this court discussed at length the evidence which was presented. In arguing on appeal that the value placed on the corporation should have been lower, respondent’s argument focused on the valuation of 10 corporate assets. In discussing the valuation of the corporation, this court stated:

“It appears the trial court accepted Morgan’s total asset value as the fair market value of the corporation, thereby calculating the fair market value of respondent’s interest at $386,545.35. However, respondent does not specifically argue in his brief on appeal that the trial court improperly failed to take all corporate liabilities into consideration in arriving at a value for the corporation. Instead, respondent argues the trial court improperly limited corporate liabilities to $225,000, rather than the $342,000 which respondent suggests is appropriate, and then attacks 10 items which Morgan included in his calculations. As a result, respondent has waived the argument that the trial court failed to completely consider corporate liabilities in the calculation of the value of the corporation. (107 Ill. 2d R. 341(e)(7).) Clearly, respondent wants to reduce the distribution of marital property to pure mathematical calculation. However, that is not the test. Even assuming, for the sake of argument, that the trial court did use a lesser figure for corporate liabilities as respondent suggests, this does not establish the property distribution in this case is inequitable given the length of the marriage and the fact that petitioner worked for the corporation for a number of years. The distribution need not be equal. Nevertheless, each of the arguments raised by respondent concerning the disputed valuation of the corporate assets will be discussed below.” In re Marriage of Baumgartner (4th Dist. 1990), No. 4—89—0905 (unpublished order under Supreme Court Rule 23), slip order at 15-16.

After the Illinois Supreme Court denied respondent’s petition for leave to appeal, respondent, on March 18, 1991, filed in the trial court a document entitled “Petition For Post-Trial Relief,” made pursuant to sections 2 — 1203 and 2 — 1401 of the Code. (Ill. Rev. Stat. 1989, ch. 110, pars. 2— 1203, 2—1401.) Section 2 — 1203, of course, deals with post-trial motions in nonjury cases and requires such motions to be filed within 30 days of the entry of judgment. Clearly, respondent’s petition was filed more than 30 days after the entry of the judgment, and respondent has made no argument on appeal concerning the applicability of this statute. Therefore, we will consider only whether respondent was entitled to relief pursuant to section 2 — 1401.

In his petition, respondent charged the trial court with a “mathematical error,” that being the failure to deduct total liabilities in order to derive net worth of the corporation. However, he acknowledged the error was not discovered while the appellate and reply briefs in the direct appeal were prepared. According to the affidavit, which was incorporated by reference into the petition, the error was discovered by respondent’s counsel on the evening prior to oral argument in that appeal. In denying respondent’s petition, the trial court made the following findings:

“(1) That Chapter 110, Section 2 — 1401, Illinois Revised Statutes, is the appropriate vehicle with regard to said Petition for Post-Trial Relief.
(2) That said Petition for Post-Trial Relief is not well taken.
(3) That the issue of diligence is the determining factor, and the Court is of the opinion that blame in this cause cannot be placed upon Petitioner/Counter-Respondent. The diligence factor lies with Respondent/Counter-Petitioner and his counsel to have discovered this cause and its problem if in fact it is a problem well before this date. The Court does not believe that Section 2 — 1401 is designed to deal with mistakes of the Court. The Appellate Court is designed to deal with the mistakes of the Court. The Appellate Court has visited this case. The Supreme Court has visited this case, and it is not appropriate for the Trial Court to again visit this case under these circumstances.
(4) That accordingly, the Petition for Post-Trial Relief should be denied.”

Initially, we consider whether the trial court committed an abuse of discretion in denying respondent’s section 2 — 1401 petition. This court stated:

“Section 2 — 1401 of the Code provides a comprehensive statutory procedure for which judgments can be challenged more than 30 days after their rendition. To be entitled to relief under this section, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381, 1386; First National Bank v. Mattoon Federal Savings & Loan Association (1988), 175 Ill. App. 3d 956, 959, 530 N.E.2d 666, 668.) The quantum of proof necessary to sustain a section 2 — 1401 petition is a preponderance of the evidence. (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.) Whether such a petition should be granted lies within the sound discretion of the circuit court, depending on the facts and equities presented. (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386; Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 873-74, 449 N.E.2d 1021, 1022-23.) As such, a court of review is justified in disturbing the judgment of the circuit court only if it finds that the court abused its discretion. Kaput v. Hoey (1988), 124 Ill. 2d 370, 378, 530 N.E.2d 230, 234; Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.” (Cunningham v. Miller’s General Insurance Co. (1989), 188 Ill. App. 3d 689, 692, 544 N.E.2d 441, 442.)

As has been stated:

“In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted.” In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.

Respondent cites In re Marriage of Frazier (1990), 203 Ill. App. 3d 847, 850-51, 561 N.E.2d 160, 162, for the proposition that section 2 — 1401 is designed to bring to the trial court’s attention errors and mistakes of which the court was unaware. The principles annunciated in Frazier require that the facts brought to the trial court’s attention were “not of record” in the earlier proceeding. Clearly, the “mathematical error” alleged in the petition was in the record. Otherwise, the appellate court would have been unable to observe the obvious argument and notice that had not been raised.

Frazier is distinguishable on its facts. In Frazier, the petition alleged a burglary at respondent’s residence in which property awarded to petitioner was stolen and that the failure of respondent to disclose the burglary was a fraudulent concealment. The trial court found that the situation was appropriate for a section 2 — 1401 motion. In this case, the “fact” alleged in the section 2 — 1401 petition is not only contained in the trial court record, but it was obvious to anyone who reviewed the trial court’s order of dissolution in light of the law regarding the valuation of closely held corporations.

Respondent also attempts to persuade this court that the trial court’s comments about section 2 — 1401 not being designed to deal with mistakes of the trial court and refusing to “revisit” this case after the case had been “visited” by the appellate and supreme courts are incorrect. As the language in Frazier points out, the trial court was correct. Issues which could have been raised in a motion for rehearing or on direct appeal are res judicata and may not be relitigated in the section 2 — 1401 proceeding, which is a separate action and not a continuation of the earlier action. See Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(b); Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294, 296.

Respondent attempts to convince this court that the fault for the “mathematical error” lies with petitioner and that respondent was diligent in bringing this matter to the court’s attention. Of course, respondent has an obligation to object at trial to incorrect inferences drawn from the evidence by the opposing party, and if the trial court adopts the incorrect inferences, to file a post-trial motion bringing the error to the trial court’s attention. Not only does inaction in this regard effect a waiver of the issue on direct appeal, but it also bears on the question of the diligence, or lack thereof, on the part of respondent.

Respondent attempts to demonstrate his diligence by pointing out he discovered the error on July 16, 1990, well before the section 2 — 1401 petition hearing date of May 2, 1991. However, there is no adequate explanation why such an error was not discovered earlier or why respondent waited until March 1991 to file a section 2 — 1401 petition. There was no need to wait for the appellate process to be completed before the section 2 — 1401 petition was filed. The pending of the appeal did not toll the two-year limitations period. Sidwell v. Sidwell (1984), 127 Ill. App. 3d 169, 174, 468 N.E.2d 200, 203.

The blame for failing to discover the error does not rest on petitioner. Nor has respondent demonstrated diligence in discovering the error and bringing it to the trial court’s attention. The valuation of the corporation which respondent challenges was included in the November 1988 order. The order did not become final until 30 days after the October 26, 1989, order. During this entire time, respondent filed no petition for reconsideration, apparently because the error had not yet been discovered.

Moreover, the cases cited by respondent in addition to Frazier are also factually distinguishable. In Deahl v. Deahl (1973), 13 Ill. App. 3d 150, 300 N.E.2d 497, the ex-wife intentionally concealed the fact she was about to remarry from the court. The court found the case was an appropriate one in which to consider a petition for relief from the divorce decree since there was “an affirmative withholding of a material fact which was vital for the judge to know in determining whether to decree periodic alimony payments terminable upon remarriage, or an award of alimony in gross which would not be so affected.” (Deahl, 13 Ill. App. 3d at 159-60, 300 N.E.2d at 504.) No such affirmative withholding of a material fact occurred in this case.

Groak v. Groak (1965), 64 Ill. App. 2d 439, 212 N.E.2d 139, involved a mutual mistake in a written agreement of the parties which was incorporated by reference into the divorce decree. The case at bar does not deal with an agreement of the parties at all, not to mention one in which there was a mutual mistake, or even a mistake on one side and fraud on the other which would require a reformation of the parties’ agreement.

Neither Lee nor In re Marriage of Malters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068, involved a section 2 — 1401 petition.

In Dassion v. Homan (1987), 161 Ill. App. 3d 141, 143, 514 N.E.2d 41, 42, it was alleged in the petition that plaintiff’s former attorney made fraudulent representations which induced plaintiffs to dismiss their complaint in spite of a meritorious claim. No such allegations are made here.

Finally, respondent cites In re Marriage of Admire (1989), 193 Ill. App. 3d 324, 329, 549 N.E.2d 620, 623, for the proposition that a judgment is against the manifest weight of the evidence when the opposite conclusion is apparent or the findings are unreasonable, arbitrary, or not based on the evidence. Admire involves a contempt proceeding, not a section 2 — 1401 petition. It is clear the decision in Admire is inapposite.

Respondent also asks this court to decide whether, in considering his section 2 — 1401 petition, the trial court should have invoked its equitable powers of justice and fairness to prevent petitioner from obtaining an unfair, unjust and unconscionable result. Respondent argues that the application of equitable principles may require the judgment to be set aside even though there has been a lack of diligence in presenting the section 2 — 1401 petition. This principle is recited in the cases respondent states as authority. (In re Marriage of Frazier, 203 Ill. App. 3d at 853, 561 N.E.2d at 164; Dassion, 161 Ill. App. 3d at 144, 514 N.E.2d at 43; Manning v. Meier (1983), 114 Ill. App. 3d 835, 838, 449 N.E.2d 560, 562.) However, the very cases he cites demonstrate that he is not entitled to relief in this case.

As already noted, Frazier involved a fraudulent concealment of the fact that property had been stolen. This tolled the running of the statute of limitations in Frazier. Respondent alleges no fraudulent concealment of facts, only a “mathematical error.” In his brief and at oral argument, respondent acknowledged that no fraud is alleged in this case.

More importantly, the cases state that the equitable principles cannot be used to relieve a respondent of his own mistakes. (Das sion, 161 Ill. App. 3d at 145, 514 N.E.2d at 43; Manning, 114 Ill. App. 3d at 838, 449 N.E.2d at 562; see also Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381, 1387.) Nevertheless, respondent appears to be attempting to place the responsibility for failing to discover the error on the trial court alone. In doing so, respondent cites Matters, which states a trial court must have competent evidence of value and its determination of value must be supported by that evidence (Malters, 133 Ill. App. 3d at 180, 478 N.E.2d at 1076); and In re Marriage of Zimmerman (1990), 200 Ill. App. 3d 594, 596-97, 558 N.E.2d 302, 303, in which the judgment was reversed on direct appeal because the trial court’s valuation of the marital home was based on mathematical errors and resulted in the inequitable division of marital property.

There can be no doubt there was a miscalculation in the case at bar. This court pointed it out in the order disposing of the direct appeal. But that does not lead to the conclusion that the evidence of valuation was incompetent. Nor does the Zimmerman case require reversal here. In fact, Zimmerman clearly demonstrates that mathematical errors in valuation can be discovered at such a time that the issue is not waived on direct appeal.

It cannot be assumed that petitioner obtained an unconscionable result in the case at bar. This court has already affirmed the trial court’s distribution of property as equitable. It is purely an assumption on the part of respondent that, had the trial court arrived at a lower value for the farm corporation, this court would have found an abuse of discretion with regard to the property distribution. This court refused to reduce the property distribution to pure mathematical calculation. Given the relative financial conditions of the parties, there does not appear to have been an unconscionable result. No abuse of discretion has been demonstrated.

Accordingly, the judgment of the circuit court of Moultrie County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY BURKE, Defendant-Appellant.
    Fourth District
    No. 4—91—0654
    Opinion filed March 19, 1992.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Norbert J. Goetten, 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 January 1991, defendant, Jerry Burke, pleaded guilty pursuant to a plea agreement to a charge of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—13(a)(3)). The charge alleged that defendant, the stepfather of S.E., committed an act of sexual penetration with S.E. at a time when she was under 18 years of age. In March 1991, the trial court sentenced defendant to 10 years in prison. Subsequently, defendant filed a motion to reconsider sentence and a motion asking that he be brought from the penitentiary to court for the hearing on the motion to reconsider. The trial court denied both motions. Defendant appeals, arguing that (1) the trial court improperly considered his status as stepfather to the victim when it sentenced him, and (2) the trial court denied defendant his constitutional right to be present at the hearing on his motion to reconsider sentence.

We affirm.

I. THE TRIAL COURT’S CONSIDERATION OF DEFENDANT’S STEPFATHER STATUS WHEN IT SENTENCED DEFENDANT

At the sentencing hearing, the trial court heard the testimony of S.E., considered a detailed presentence report, and also considered the arguments and suggestions of counsel. Defendant chose not to testify at that hearing but did speak briefly in allocution. The trial court then sentenced defendant to 10 years in prison and explained its reasons, in part, as follows:

“In reaching this decision and as a basis of sentence, the court has considered the fact that the conduct of the defendant one, caused or threatened serious physical harm to another; two, the defendant has a prior history of criminal conduct, as set forth in paragraph 9 of the Pre-Sentence Report filed herein, which the court does hereby specifically adopt by reference into this sentencing order; three, that by the duties of the defendant’s position, that being a stepparent, [he] was obligated to prevent the particular offense of which he stands convicted; four, that the sentence is necessary to deter others from committing the same or like offenses; and five, the defendant held a position of trust or supervision when he committed the offense, in violation of Section 12 — 13 of the Code of Criminal Procedure.” (Emphasis added.)

Citing the above language, defendant argues that the trial court improperly considered his status as the stepfather of S.E. as an aggravating factor because the relationship between defendant and S.E. was an element of the offense to which he pled guilty. Defendant maintains that the trial court committed the very error the supreme court condemned in People v. White (1986), 114 Ill. 2d 61, 66, 499 N.E.2d 467, 469, wherein the trial court considered as an aggravating factor that the victim of the aggravated battery was under 13 years of age and the defendant had been convicted of the offense of aggravated battery of a child, which offense required the victim to be under 13 years of age. We disagree with defendant’s contention.

The record in this case shows that defendant had been acquainted with S.E. since she was two years old when defendant began dating her mother. When S.E. was nine years old, defendant married her mother, and along with S.E.’s sister, P.E., the four of them resided together as a family unit. Given this background, we find strikingly similar (and dispositive) the decision of the Third District Appellate Court in People v. King (1987), 151 Ill. App. 3d 662, 503 N.E.2d 365.

In King, the defendant pleaded guilty to two charges of criminal sexual assault, which involved the same statutory provisions (sexual penetration of a child by a “family member”) as the charge to which defendant pleaded guilty in the present case. (See Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(3).) The defendant in King was also sentenced to 10 years in prison on each charge, with the sentences to run concurrently. The victims in that case were defendant’s 14-year-old daughter and 15-year-old stepdaughter, and he had engaged in sexual intercourse with each of them. (King, 151 Ill. App. 3d at 663, 503 N.E.2d at 366.) Evidence at the sentencing hearing revealed that the defendant began making sexual advances towards the 14-year-old when she was five years old and that she and her father had had intercourse over 10 times. (King, 151 Ill. App. 3d at 663, 503 N.E.2d at 366.) The 15-year-old victim began having sexual relations with her stepfather when she was nine years old, had oral sex with him two or three times, and also had sexual intercourse with him. (King, 151 Ill. App. 3d at 663, 503 N.E.2d at 366.) The defendant in King argued on appeal that the trial court abused its discretion and imposed an excessive sentence by finding an aggravating factor in that defendant, by virtue of his position as a father, was required to prevent the offense of criminal sexual assault. (King, 151 Ill. App. 3d at 663, 503 N.E.2d at 367.) The court rejected this argument and wrote the following:

“In the instant case, the defendant argues that being a family member is an element of his offense. As such, it cannot be used as an aggravating factor. The State contends that there is a difference between merely being a family member and being a father. We agree. A father, by virtue of his position, owes a special duty of protection to his children. The same cannot be said for any person ‘who has resided in the household with [the victim] continuously for at least one year.’ ([One of the definitions of ‘family member’ under] Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(c).) Accordingly, we find that the trial court did not err in considering the defendant’s position as an aggravating factor. Further, given the seriousness of the instant offense and the long period over which it occurred, we find that the court did not abuse its discretion in sentencing him to concurrent terms of 10 years in prison.” King, 151 Ill. App. 3d at 663-64, 503 N.E.2d at 367.

We agree with the Third District’s analysis in King and find it disposes of the argument defendant here raises. However, even if we did not agree with that analysis, we would not find a remand for re-sentencing warranted on the facts of this case given that defendant’s criminal conduct here is far more egregious than was the conduct in King.

The offense for which defendant was sentenced, criminal sexual assault, is a Class 1 felony (Ill. Rev. Stat. 1989, ch. 38, par. 12—13(b)), which means that an offender may be sentenced to prison for not less than 4 years and not more than 15 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(4)). S.E. testified at defendant’s sentencing hearing that he first started having sexual intercourse with her when she was 10 years old. S.E. testified that defendant had sexual intercourse with her every other night for three years while her mother was at work until she finally told her mother about defendant’s conduct when she was 13, S.E. said that on each occasion when they had sexual intercourse, defendant also made her perform oral sex upon him and let him perform oral sex upon her. S.E. further testified that defendant threatened that if she told anyone what he was doing to her, he would do the same things to her younger sister, P.E., with whom S.E. was close. S.E. described P.E. as mentally handicapped, legally blind, brain-damaged, and able to hear only with the assistance of two hearing aids.

S.E. also testified that on an evening when she had an 11-year-old girlfriend sleep over at her house and S.E.’s mother was at work, defendant told S.E. that he wanted to sleep with her girlfriend and that S.E. should ask her. S.E. did, and her girlfriend agreed to go into defendant’s bedroom. Later, defendant told S.E. that he had attempted sexual intercourse with her girlfriend, but that they could not have intercourse “because she was too tight.” Defendant resumed his previous sexual conduct with S.E. the next night.

Other evidence at the sentencing hearing revealed that defendant had a prior felony conviction and several prior misdemeanor convictions. Furthermore, after the court carefully analyzed the factors in mitigation set forth in section 5 — 5—3.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.1), it specifically found no mitigating factor present in this case. Given the startling duration of defendant’s odious degeneracy and the terrible effect it had on S.E. (she has tried to kill herself, has trouble sleeping, is alienated from her mother, and lives in a foster home), defendant should consider himself fortunate that the trial court sentenced him to only 10 years in prison, which is approximately halfway between the minimum and maximum sentences (4 to 15 years) statutorily authorized. As this court has had occasion to observe in the past when addressing a defendant’s argument regarding a sentencing impropriety, “[a] remand for resentencing on these facts with this defendant’s criminal history [and the egregious circumstances of his offense] is unnecessary because we can hardly imagine how a sentence of less than 10 years could be imposed.” People v. White (1990), 198 Ill. App. 3d 641, 665, 555 N.E.2d 1241, 1256.

II. DEFENDANT’S CLAIM THAT HE HAS A CONSTITUTIONAL RIGHT TO BE PRESENT AT HEARING ON MOTION TO RECONSIDER SENTENCE

In April 1991, defendant’s trial counsel filed a motion to reconsider sentence. That motion alleged that the sentence imposed by the court was excessive and, in the alternative, that the trial court should provide defendant with a new sentencing hearing to give him an opportunity to ask for an alcohol evaluation. The trial court denied that motion and also denied defendant’s motion to be personally present at the hearing on the motion to reconsider sentence.

On appeal, defendant argues that because his motion to reconsider sentence involved his “substantial rights,” he had a constitutional right to be present at the hearing on that motion. Defendant argues as follows:

“If [defendant] had been present at the motion to reconsider sentence, he could have elected to testify in the hope of persuading the trial court to impose a more lenient sentence. *** [Defendant’s] testimony regarding his alcohol usage could have convinced the trial court to order [an alcohol] evaluation.
*** The person most likely to have relevant evidence to present in support of the motion to reconsider was [defendant, and his] presence at the hearing was necessary to fully present his arguments to the trial court.”

We disagree.

Defendant’s motion to reconsider sentence was filed under the authority of section 5 — 8—1(c) of the Code, which reads, in pertinent part, as follows:

“A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).

In People v. Hanna (1987), 155 Ill. App. 3d 805, 812, 508 N.E.2d 765, 770, this court discussed section 5 — 8—1(c) of the Code as follows:

“A trial court has discretion to hear additional evidence if a motion to reduce sentence alleges facts outside the record which, if true, would alter the court’s conclusion as to a proper sentence. However, we cannot agree with defendant’s assertion that the court must hear evidence unless it makes specific finding such evidence would not have affected the original sentencing decision.”

Thus, Hanna stands for the proposition that the trial court may, but need not, hear additional evidence when presented with a motion to reduce sentence, even when the motion alleges facts outside the record which, if true, might alter the court’s conclusion as to a proper sentence. When a motion to reduce sentence makes such claims, the court has discretion to first determine, through representations and argument of counsel, whether the motion has sufficient merit so as to make an evidentiary hearing worthwhile. This holding is consistent with the concerns this court expressed in People v. Hummel (1977), 48 Ill. App. 3d 1002, 1008, 365 N.E.2d 122, 127, that “[t]here are hazards and expense involved in transporting prisoners from the penitentiary to post-conviction proceedings.”

This court further noted in Hummel that the defendant’s post-trial motion (there, a motion to withdraw his guilty pleas) did not present the court with any factual issues outside the record. Accordingly, defendant did not need to be present at the hearing on his motion to withdraw his guilty pleas. (Hummel, 48 Ill. App. 3d at 1008, 365 N.E.2d at 127.) Similarly, in the present case, defendant failed to present any factual issues outside the record in his motion to reconsider sentence. Thus, as is almost always the situation with regard to post-conviction motions, defendant’s motion to reconsider sentence presented only legal issues, the resolution of which did not require his presence.

In People v. Woods (1963), 27 Ill. 2d 393, 395, 189 N.E.2d 293, 294, the Illinois Supreme Court wrote the following regarding a defendant’s right to be present at trial proceedings:

“The well-nigh unanimous rule in this country is that the defendant’s constitutional right to be present at the trial does not ‘embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict.’ [Citations.]”

In Hummel, this court explained that, “[a] defendant possesses a constitutional right to be present at every stage of his trial [citation], but this rule has not generally been extended beyond the sentencing stage.” (Hummel, 48 Ill. App. 3d at 1008, 365 N.E.2d at 127.) In People v. Ellis (1980), 81 Ill. App. 3d 351, 352, 401 N.E.2d 282, 282, the court cited Hummel approvingly and wrote the following:

“Defendant’s claim that he had an absolute right to be present at the hearing on his motion to withdraw his guilty plea is not persuasive under the facts of this case. The generally accepted rule that a defendant has the right to be present at a hearing which affects his substantial rights ‘does not “embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict” [Citations].’ (People v. Woods (1963), 27 Ill. 2d 393, 395[, 189 N.E.2d 293, 294].)”

(See also People v. Bryant (1988), 176 Ill. App. 3d 809, 814, 531 N.E.2d 849, 852 (defendant has right to be present at all proceedings affecting his substantial rights, but hearings on procedural matters or questions of law do not affect those rights); State v. Conley (1981), 168 W. Va. 694, 696-97, 285 S.E.2d 454, 456 (defendant had no constitutional right to be present at hearings on motions to reconsider sentence at which no evidence is taken); State v. Smith (1985), 217 Mont. 461, 487, 705 P.2d 1087, 1103 (defendant not entitled to be present on his motion to reconsider sentence).) We agree with the foregoing authority and hold that defendant had no constitutional right to be present at the hearing on his motion to reconsider sentence.

III. CONCLUSION

For the reasons stated, we affirm the judgment and sentence of the circuit court.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


text:
      In re D.L.W. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. James O. Walters II, Respondent-Appellant).
    Fourth District
    No. 4—91—0200
    Opinion filed March 19, 1992.

      Lynne R Feldman, of Pavia & Marsh, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On February 25, 1991, the parental rights of respondent James O. Walters to his two natural sons, J.W. (born April 6, 1981) and D.L.W. (born September 11, 1986), were terminated. Respondent appeals, contending (1) the trial court’s finding of unfitness based on extreme and repeated cruelty (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(e)) was against the manifest weight of the evidence and (2) he had not been provided with the statutorily mandated family reunification services (Ill. Rev. Stat. 1989, ch. 23, par. 5001 et seq.). We reject both of respondent’s contentions and affirm the trial court.

The saga of this family began in 1988 when J.W. went to school with a bruised nose. J.W.’s teacher asked him how he got the bruise and J.W. indicated his father had hit him in the face with his fist. J.W.’s stepbrother, S.H. (bom June 24, 1979), also alleged respondent had caused his (S.H.’s) head to strike against the garage wall. The following day a shelter-care petition was filed, and after a hearing on that petition, temporary custody of all three minors was taken from respondent and his wife, Sandra. An adjudicatory hearing was later held (Champaign County case No. 88 — J—92), and the court found all three minors (D.L.W., J.W., and S.H.) abused because of physical abuse by respondent. (Ill. Rev. Stat. 1989, ch. 37, par. 802—3(2)(i).) The minors were made wards of the court, and custody was removed from respondent and Sandra. The trial court ordered both parents to maintain a regular course of visitation with the minors, cooperate with the social worker and attend counseling and parenting skills classes.

Between June 1988 and June 1989, respondent and Sandra fully cooperated with the Department of Children and Family Services (DCFS). They kept all visits with the children, attended the counseling sessions and completed the parental educational training programs suggested by DCFS. Because of their successful completion of the objectives set forth in the client service plans established by DCFS, all three minors were returned to respondent and Sandra in June 1989.

During the next six months, respondent and Sandra voluntarily continued the counseling and there were no reported incidents of physical abuse with respect to any of the minors. However, in late January 1990, Sandra fled the State of Illinois with the minors and went to her sister’s house in Ohio. Approximately three weeks later, respondent followed Sandra to Ohio and discovered where she was hiding. Sandra returned to Illinois with the respondent and the minors; however, there was contradictory testimony as to whether she and the minors voluntarily accompanied respondent or were forced back to Illinois against their will.

In March 1990, another shelter-care petition was filed on behalf of all three minors alleging neglect because of an environment injurious to their welfare and abuse because of physical injury by respondent. In April 1990, the trial court entered an order in Champaign County case No. 90 — J—47, finding the minors neglected and abused. (Ill. Rev. Stat. 1989, ch. 37, pars. 802—3(1)(b), (2)(i).) Temporary custody of J.W. and D.L.W. was ordered to remain with DCFS. However, the trial court granted temporary custody of S.H. to his natural father; as a result, any parental rights of respondent to S.H. are not a subject of this appeal.

A supplemental petition seeking a finding of unfitness and termination of respondent’s parental rights was filed in May 1990. Count I of the petition alleged respondent was unfit because he engaged in acts of extreme and repeated cruelty to J.W.; count II alleged respondent was unfit because he was found to have physically abused J.W.; count III alleged respondent was unfit because he failed to protect J.W. and D.L.W. from conditions within their environment injurious to their welfare; and count IV alleged respondent was unfit because he engaged in acts of depravity against J.W. Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(e), (D)(f), (D)(g), (D)(i).

A dispositional hearing was held in late May 1990, wherein the trial court found the minors to be neglected and abused as a result of physical abuse by respondent. (Ill. Rev. Stat. 1989, ch. 37, par. 802—3(2)(i).) Custody of J.W. and D.L.W. was placed with DCFS, and respondent was prohibited from having any contact with both minors.

In July 1990, respondent was sentenced to 364 days in jail in Champaign County case No. 90 — CF—303, as a result of a guilty plea to a battery charge based on one of the incidents of physical abuse to J.W. Respondent attempted a reconciliation with Sandra while he was in jail but the parties’ marriage was eventually dissolved. Two review reports indicated respondent was cooperative with DCFS and complied -with the terms of the client service plan created by DCFS, although due to his incarceration, many aspects of the plan had not yet been implemented.

An adjudicatory hearing regarding respondent’s unfitness was held in January 1991. Testimony at that hearing was given by Dr. Ronald Matthew, a clinical psychologist, two social workers and two DCFS caseworkers. Dr. Matthew testified respondent was likely to overreact when his values were threatened and he needed to continue with counseling. Robert Stewart, a social worker, testified respondent still denied losing control when he disciplined J.W. and still believed it was important for his children to fear him. The two DCFS caseworkers testified respondent participated in counseling services offered to him prior to his incarceration, but he had not done so since his imprisonment as those services were no longer available to him. Respondent presented no testimonial evidence on his own behalf.

In addition to the testimonial evidence presented by the State, the trial court took judicial notice of the record of proceedings in the prior case involving the minors and their parents (Champaign County case No. 88 — J—92). The trial court also took judicial notice of the record of proceedings of two criminal cases against respondent, both of which resulted in battery convictions (Champaign County case Nos. 88 — CF—660 and 90 — CF—303). J.W. was the victim in both of those incidents. Finally, the trial court took judicial notice of the record of proceedings in the instant case, including the transcript of the testimony at the adjudicatory hearing held on April 5,1990.

The trial court found in favor of respondent on counts I, III, and IV of the supplemental petition. However, the trial court found against respondent on count II, finding that the evidence established respondent engaged in acts of extreme and repeated cruelty toward J.W. Specifically, the trial court relied on three instances of physical abuse by respondent of J.W. Those instances are as follows:

(1) The May 1988 incident in which J.W. appeared at school with a bruised face alleging respondent had struck him in the face with his fist; this was the incident which started the first case against respondent and Sandra (Champaign County case No. 88 — J—92);
(2) An incident in December 1989, described by Sandra at the April 5, 1990, hearing, wherein she saw respondent grab J.W. by the throat and knee him in the groin because of soiled underwear;
(3) An incident in late January 1990, described by Sandra at the April 5, 1990, hearing, in which she witnessed respondent tell J.W. to bend over and touch his toes while respondent spanked him on the buttocks with a l1/2-foot-long, 2-inch-wide board. Respondent allegedly told J.W., “ T don’t care if I have to beat you to death, you are going to learn not to wet the bed any longer.’ ” This was the incident that had caused Sandra to flee to Ohio.

The trial court also considered three other incidents of physical abuse by respondent. The first incident occurred in May 1988 in which respondent caused S.H. to bang his head against the garage wall. The other two instances of physical abuse were described by J.W. to an investigator for the Urbana police department. J.W. told the investigator that respondent had beaten him once with a wooden spoon, causing it to break into several pieces. J.W. also told the investigator that respondent had hit him in the head, causing a period of blurred vision.

Based on these incidents and the testimony presented at the adjudicatory hearing, the trial court concluded that respondent had engaged in acts of extreme and repeated cruelty to J.W. Subsequently, the trial court ordered respondent’s parental rights to J.W. and D.L.W. terminated. This appeal followed.

The Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.) and the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.) govern the termination of parental rights. A finding of parental unfitness may be based on evidence sufficient to support any one statutory ground, even if the evidence is not sufficient to support other grounds alleged. (See, e.g., In re Edmonds (1980), 85 Ill. App. 3d 229, 232-33, 406 N.E.2d 231, 234-35.) Section l(D)(e) of the Adoption Act defines an “unfit person” as “any person whom the court shall find to be unfit to have a child” because of “extreme or repeated cruelty to the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(e).) A finding of unfitness may lead to the termination of parental rights and a court may take such action after finding it to be in the best interests of the minor. In re W.U. (1990), 199 Ill. App. 3d 320, 322, 556 N.E.2d 887, 889.

Respondent contends it was against the manifest weight of the evidence to find him unfit based on acts of extreme and repeated cruelty to J.W. Respondent asserts this is merely a case of excessive corporal punishment and not “extreme and repeated cruelty,” as those words have been “defined in the statute and interpreted by case law.”

Despite this contention regarding the definition and interpretation of the words “extreme and repeated cruelty,” respondent asserts that there are no appellate court cases in which a parent has been found to be unfit under this section. Respondent attempts to analogize the meaning of that phrase to its use in and interpretation under the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1989, ch. 40, par. 401 et seq.

Contrary to respondent’s allegation, our own research has located a number of cases in which a parent was determined to be unfit because of acts of extreme and repeated cruelty to his or her children. (See, e.g., In re E.P. (1988), 167 Ill. App. 3d 534, 521 N.E.2d 603; In re J.R. (1985), 130 Ill. App. 3d 6, 473 N.E.2d 1009.) Accordingly, there is no need to examine the use of this phrase in the context of the Illinois Marriage and Dissolution of Marriage Act.

In In re E.P. (167 Ill. App. 3d 534, 521 N.E.2d 603), for example, this court upheld the trial court’s conclusion that there was clear and convincing evidence of parental unfitness as not contrary to the manifest weight of the evidence. There, one of the specific grounds of unfitness was extreme and repeated cruelty to the minors. The evidence established the children’s father sexually abused them on several occasions. This court affirmed the trial court’s conclusion that this constituted extreme and repeated cruelty.

In In re J.R. (130 Ill. App. 3d 6, 473 N.E.2d 1009), the termination of the respondent’s parental rights was held not against the manifest weight of the evidence. There, the father committed a battery against one of the minors. With knowledge of that battery, the respondent mother had allowed the father to continue living in the family residence. Approximately one year later, the father murdered another child. Nevertheless, the mother helped the father conceal the murder and allowed him to remain living in the residence. One of the alleged grounds of unfitness was extreme and repeated cruelty to the children. The court found the evidence sufficient to uphold that allegation. See also In re Wheeler (1980), 86 Ill. App. 3d 564, 408 N.E.2d 424 (in which the parents were found unfit because of extreme and repeated cruelty to the children by virtue of repeated acts of physical abuse); In re Dixon (1980), 81 Ill. App. 3d 493, 401 N.E.2d 591 (wherein the father’s repeated acts of physical abuse against the son were found to constitute extreme and repeated cruelty sufficient to sustain the termination of his parental rights).

The evidence here is more than sufficient to establish that respondent engaged in acts of extreme and repeated cruelty to J.W. Respondent has two battery convictions for acts against J.W. The trial court also referred to three separate instances where respondent had physically abused J.W., i.e., by striking him with a closed fist, kneeing him in the groin, and also striking him with a V/a-foot-long board. Moreover, accompanying this physical abuse, respondent yelled profanities at J.W. and threatened to beat him to death unless he learned not to wet the bed.

The trial court noted that most of the testimony regarding these instances of physical abuse came from Sandra, who admitted to drug use throughout the time period involved in this case. Nevertheless, the trial court chose to believe her statements regarding the occurrence of abuse, as they were corroborated by certain acknowledgements of respondent, statements J.W. made to the police, and statements made by S.H. to the police. The trial court’s opportunity to view and evaluate the parties and their testimony is far superior to that of a reviewing court. Accordingly, the trial court’s findings should be given great deference. In re A.T. (1990), 197 Ill. App. 3d 821, 829-30, 555 N.E.2d 402, 408.

Respondent further contends it was against the manifest weight of the evidence to terminate his parental rights to D.L.W. because the record shows no acts of extreme and repeated cruelty to D.L.W. We disagree.

Evidence supporting a parent’s unfitness toward one or more children may serve as a basis for termination of parental rights toward all of that party’s children, even where that evidence relates to events occurring prior to the birth of some of the children. In re Henry (1988), 175 Ill. App. 3d 778, 792, 530 N.E.2d 571, 580-81; see also In re J.R., 130 Ill. App. 3d at 9, 473 N.E.2d at 1012; In re Flynn (1974), 22 Ill. App. 3d 994, 998, 318 N.E.2d 105, 108.

The record indicates Sandra did not testify as to any direct acts of physical abuse by respondent against D.L.W. However, S.H. told a caseworker that respondent spanked D.L.W. about six times a week. There was also testimony from the caseworkers and Sandra that respondent verbally abused D.L.W. Finally, the evidence established respondent believed in corporal punishment and believed his children needed to fear him for him to be able to control their behavior. Respondent was unable to differentiate between corporal punishment and physical abuse after the children had been returned in 1989. It is apparent that whatever respondent learned from the parenting and counseling classes did nothing to rectify this problem. Because of respondent’s inability to control his temper and tendency to physically abuse the minors when attempting to discipline them, D.L.W. was at a very high risk of physical abuse.

Accordingly, the termination of respondent’s parental rights to J.W. and D.L.W. was not against the manifest weight of the evidence. The evidence established several acts of extreme and repeated cruelty toward J.W. Furthermore, the record indicates D.L.W., although not previously a victim of respondent’s unacceptable behavior, was at a high risk to suffer acts of extreme and repeated cruelty at the hands of respondent. The trial court had an adequate basis for terminating respondent’s parental rights to both minors.

Respondent also contends DCFS has failed to provide him with family reunification services mandated by statute. (Ill. Rev. Stat. 1989, ch. 23, par. 5005.) Respondent’s contention is without merit. His parental rights were terminated for physical abuse of the children.

We need not decide here, if, when, or whether the provisions of section 5 of the Children and Family Services Act may be relevant in some termination proceedings. Whether DCFS satisfied its responsibility required by that section does not excuse respondent’s conduct here and is not relevant where the alleged conduct is extreme and repeated cruelty.

For the reasons stated above, we affirm the circuit court of Champaign County.

Affirmed.

GREEN, P.J., and KNECHT, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD ELFGEN, Defendant-Appellant.
    Fourth District
    No. 4—91—0709
    Opinion filed March 19, 1992.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from a sentence by the circuit court of Sangamon County on April 22, 1991, pursuant to defendant’s plea of guilty to the offense of aggravated battery with a firearm. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4.2.) Defendant was sentenced to nine years’ imprisonment for the offense. A pro se motion to reduce the sentence was heard on its merits and denied on September 20, 1991. This appeal follows.

Defendant claims the court erred in the determination of sentence by considering as aggravating factors both the nature of the offense and the fact that defendant had easy access to a firearm. Relying on People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, defendant asserts that a trial judge may not consider in aggravation of sentence a factor that is implicit in the crime for which defendant is convicted. Claiming that the legislature considered the nature of the offense in making aggravated battery with a firearm a Class X felony (see Ill. Rev. Stat. 1989, ch. 38, par. 12—4.2(b)), defendant contends that any further consideration of the nature of the offense is improper. Our supreme court addressed this problem in People v. Saldivar (1986), 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1142-43, when they held:

“Although Conover stands for the proposition on which the defendant relies, this court did not intend a rigid application of the rule, thereby restricting the function of a sentencing judge by forcing him to ignore factors relevant to the imposition of sentence. *** A reasoned judgment as to the proper penalty to be imposed must therefore be based upon the particular circumstances of each individual case. [Citations.] Such a judgment depends upon many relevant factors, including the defendant’s demeanor, habits, age, mentality, credibility, general moral character, and social environment [citations], as well as ‘ “the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant” ’ [citations].” (Emphasis in original.)

The nature and circumstances of various aggravated-battery charges are relevant. Here, the defendant shot the victim in the chest three times. This conduct, for instance, is certainly relevant as compared with shooting a victim one time in the hand.

Defendant has overlooked the fact that the issue was faced squarely in the sentence hearing itself, where the trial court stated:

“Several of the factors that might be aggravating factors, once again, I think are incorporated into the section or to the offense for which the Defendant has entered his plea in connection with this case, and therefore cannot be considered separate from the nature of the offense itself.”

The trial court then lists the three factors considered relevant in the decision: (1) deterrence, (2) prior juvenile record, and (3) the fact that defendant had placed himself in a situation where he had easy access to a firearm.

Defendant claims it was also improper for the trial court to consider the fact that he had easy access to a firearm, when possession of a firearm is inherent in the offense itself. Had the trial court considered mere possession of a firearm as an aggravating factor in sentencing defendant, perhaps this argument would have merit. However, the trial record makes clear that the court was not concerned with mere possession of a firearm, but rather the fact that defendant, prior to the attack, had carried the weapon on his person for no apparent reason: “It was still a situation where you did not need to have that firearm and it serves no purpose whatsoever.” The court may consider all matters reflecting upon a defendant’s personality, propensities, purposes, tendencies, general moral character, mentality, and social environment. (People v. Barrow (1989), 133 Ill. 2d 226, 281, 549 N.E.2d 240, 265.) A sentence imposed upon a defendant will not be overturned absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.) Aggravated battery with a firearm, a Class X felony, carries a minimum sentence of 6 and a maximum sentence of 30 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(3).) The trial court did not abuse its discretion in sentencing defendant to a term of nine years’ imprisonment, which was within the statutory sentencing range.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.