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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH WATKINS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2766
    Opinion filed September 24, 1990.
    Rehearing denied December 26, 1990.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Jeanette Sublett, and Michael J. Drake, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Joseph Watkins, was convicted of robbery and aggravated battery (Il. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 12 — 4, respectively), and sentenced to two concurrent 12-year prison terms. On appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he was denied his sixth amendment right to effective assistance of counsel; (3) the State’s comments during closing argument deprived him of due process of law; (4) the trial court abused its discretion when it denied defendant’s pretrial motion to bar the State from impeaching him with a prior conviction; (5) the 12-year sentence imposed upon defendant for robbery was excessive; (6) the trial court improperly sentenced defendant to a 12-year prison term for aggravated battery; (7.) the trial court erred in failing to advise defendant of the possibility of treatment under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. 111½, par. 6301 et seq.)-, and (8) defendant’s 12-year sentences for robbery and aggravated battery were improperly disparate to the three-year sentence imposed upon codefendant, Gregory Burns, for the same offenses. For the following reasons, the judgment of the trial court is affirmed and, by agreement of the parties, defendant’s sentence for aggravated battery is reduced to five years.

The record sets forth the following facts relevant to this appeal. On September 3, 1986, at approximately 8:15 p.m., Selmo Hunter was assaulted by two males as he left the One Stop Food & Liquor Store in Chicago. At trial, Hunter testified that one of the assailants grabbed him and threw him down on the sidewalk. The other assailant then kicked him in the back of the head, and one of them took his wallet. Hunter identified one of the assailants as Gregory Burns, but was unable to make a positive identification of the other.

Steve Green, custodian at the One Stop Food & Liquor Store, testified that, on September 3, 1986, while he'was cleaning up the store parking lot, he saw Gregory Burns throw Selmo Hunter to the ground and kick him in the face. He then saw defendant take Hunter’s wallet and run. At trial, Green equivocated as to how long he had known defendant and as to how many times he had previously seen him. At first, Green stated that he had known defendant for seven or eight years and had seem him five times previously. On cross-examination, Green stated that he saw defendant for the first time on the day of the incident. He then admitted that what he had stated on direct was incorrect. Green then explained that when he had stated he had seen defendant five times earlier, he had meant five times on the day of the incident. Green further testified that after he saw the assault on Hunter, he went into the store and alerted the security guard, Bennie Harmon. The following day, Green viewed a lineup and identified Gregory Burns as one of the assailants. At that time, he also told the police about defendant’s involvement. However, he never viewed a lineup in which defendant appeared.

Next, Bennie Harmon, security guard at the One Stop Food & Liquor Store, testified that on September 3, 1986, at approximately 8:20 p.m., he saw both defendant and Gregory Burns in front of the One Stop Food & Liquor Store. Later, when he saw Hunter lying on the ground, Burns and defendant had already left.

Officer Eugene Poole of the Chicago police department then testified that he had arrested defendant on October 15, 1986. Two weeks earlier, Poole had learned that Gregory Burns had been arrested for the Hunter incident and that defendant was also involved. When Pool asked defendant about the robbery, defendant replied, “I was there but I didn’t do anything.”

The State then rested its case. Defense counsel indicated that she had a motion. However, the court said the motion would be heard later outside the presence of the jury and, at this time, they would continue with the defense witnesses.

Defendant then took the stand on his own behalf and testified that on September 3, 1986, at approximately 8 p.m., he was sitting on a garbage can across the street from the One Stop Food & Liquor Store, talking on a pay telephone, when he saw some guys running behind him toward a crowd. It looked like a fight was taking place. When he finished his telephone conversation, defendant walked toward the crowd. The security guard came out of the One Stop Food & Liquor Store, and two males ran from the crowd. Defendant saw Hunter lying on the sidewalk. Someone had put a coat under Hunter’s head, and two other people were picking up his groceries. When defendant spotted Hunter’s wallet lying on the ground, he picked it up and put it in his pocket. Steve Green saw defendant pick up the wallet and asked defendant what was in it. Defendant replied that he had not looked inside of it yet.

When the police and paramedics arrived, Hunter regained consciousness, grabbed his groceries, and got into his car. The police followed him. Several of defendant’s friends then asked him for some of the money from Hunter’s wallet. Defendant gave some money to a couple of his friends, but did not give any to Green, who asked defendant to pay back a gambling debt. Defendant further stated that on October 15, 1986, he had been in a lineup, but had not been identified.

The defense then rested its case. In rebuttal, the State admitted into evidence a certified statement of a conviction of theft against defendant, dated October 6, 1986. On surrebuttal, defendant admitted that he had taken Hunter’s wallet. Defendant’s motion for a directed verdict was then denied. Following deliberations, the jury found defendant guilty of the offenses of robbery and aggravated battery. Thereafter, defendant’s motion for a new trial was denied and, following a hearing in aggravation and mitigation, he was sentenced to two concurrent 12-year prison terms. Defendant’s timely appeal followed.

Initially, defendant argues that the State failed to prove him guilty of aggravated battery and robbery beyond a reasonable doubt on the ground that the evidence introduced by the State either did not link him to the crime or was discredited because of its numerous inconsistencies. It is well established that it is the function of the trier of fact to assess the credibility of the witnesses, to resolve any inconsistencies in their testimony and to draw reasonable inferences from that testimony. On review, the appellate court is not to substitute its judgment for the trier of fact. Rather, it is to review the evidence in a light most favorable to the prosecution and to reverse the judgment only if no rational trier of fact would have found the defendant guilty of the crimes charged beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the present case, defendant was convicted of robbery and aggravated battery. Pursuant to section 18 — 1(a) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1(a)), “[a] person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” Further, pursuant to section 12 — 4(b)(10) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(10)), “[a] person *** commits aggravated battery if he *** [k]nowingly and without legal justification and by any means causes bodily harm to an individual of 60 years of age or older.” Thus, in order for defendant to be proven guilty of robbery and aggravated battery, the State must establish beyond a reasonable doubt that defendant took Hunter’s wallet from him by force or with imminent threat of force and that he caused bodily harm to 80-year-old Hunter. The State argues that it met this burden with Hunter’s lineup and in-court identification of defendant, the corroborating testimony of two occurrence witnesses and defendant’s own testimony that he had been at the scene and had taken the wallet.

With respect to Hunter’s lineup and in-court identifications, the following colloquy took place on cross-examination by defense counsel ait trial:

“DEFENSE: Then [the police officers] took you in and you looked at some men, didn't you?
HUNTER: Right.
DEFENSE: And [defendant] was one of those men, wasn’t he?
HUNTER: I think so.
DEFENSE: And you didn’t tell the police that [defendant] was the other person or persons that robbed you, you didn’t identify him, did you?
HUNTER: I think I did.
DEFENSE: This is very important, Mr. Hunter — .
THE COURT: Just ask the question.
DEFENSE: I want you to think about this, Mr. Hunter. When you looked at that lineup are you sure — you know you wanted to be fair, you looked at those 5 men and [defendant] was in that lineup and you didn’t identify him as one of the people that robbed you, in September you identified Gregory Burns — .
STATE: I will object.
THE COURT: Let the man answer the question.
DEFENSE: I want you to take your time — .
THE COURT: He is taking his time. * * *
HUNTER: I was kind of hazy on the individual before me when he was called out but to be fair I said it looks like the man.
DEFENSE: Miss Prosecutor, do you have a picture of the lineup photograph that was taken on October 15th.
STATE: Could we have a sidebar, Your Honor? 4»
[side bar]
THE COURT: Do you have a picture?
STATE: They don’t take photographs of a lineup when no identification is made. * * *
DEFENSE: It would be fair to say, Mr. Hunter, that you were never really certain about [defendant], wouldn’t that be fair to say?
HUNTER: Not necessarily so but another party there that confronted me going to my car had blocked my way to the car was the party I had purchase — .
DEFENSE: I am talking about [defendant], Mr. Hunter. It would be fair to say you were never really certain about him, isn’t that right?
HUNTER: No, not necessarily not certain, I saw the man, I had a glimpse, but I didn’t get a chance to gaze at him and to kind of — .
DEFENSE: In a matter of seconds?
HUNTER: An impression.
DEFENSE: This all occurred in a matter of seconds, isn’t that right sir?
HUNTER: Yes.”

As the foregoing indicates, Hunter never gave an unequivocal identification of defendant as one of his assailants. Instead, he merely identified a photograph of the lineup in which he had identified Gregory Burns. Vague and doubtful identification cannot sustain a conviction beyond a reasonable doubt. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) Therefore, on its own, Hunter’s identification does not serve to establish defendant’s guilt.

The State also relies on the testimony of Bennie Harmon, the security guard at the One Stop Food & Liquor Store, and on the testimony of Steve Green. Bennie Harmon’s testimony merely placed defendant at the scene, a fact defendant does not dispute. Therefore, it is unpersuasive. However, Steve Green's testimony does directly link defendant to the crime. Green stated that he saw defendant take Hunter’s wallet and run. These events were corroborated by Hunter, who testified that after he had been kicked in the head, someone took his wallet. It is well established that a positive identification by one eyewitness who had ample opportunity for observation may be sufficient to support a conviction. (People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362; People v. Outlaw (1978), 67 Ill. App. 3d 327, 384 N.E.2d 898.) The fact that Green’s testimony was riddled with inconsistencies is a matter to be resolved by the trier of fact, not the reviewing court. (People v. Dixon (1984), 122 Ill. App. 3d 141, 460 N.E.2d 858.) Moreover, the inconsistencies related to how long Green had known defendant and to how many times he had seen him previously. In light of Green’s positive identification of defendant, these points have little, if any, significance. Further, although Green admitted on cross-examination that he had “practiced and rehearsed” his testimony prior to taking the stand, he clarified on redirect that he was never told by anyone what to say on the stand.

With respect to defendant’s own testimony, he admitted to being at the scene and to taking Hunter’s wallet, but denied being involved in the assault on Hunter. Instead, he claimed he just saw the wallet lying on the ground and picked it up. Contrary to the State’s position, defendant’s testimony did not establish the elements of aggravated battery or robbery. However, we find that Green’s testimony and his unequivocal eyewitness identification, together with other corroborative testimony as to the events surrounding the incident, were sufficient to support defendant’s conviction of robbery and aggravated battery beyond a reasonable doubt.

Finally, we find defendant’s reliance on People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153, to be misplaced. In Ash, an accomplice testified against Ash in exchange for leniency and the promise not to be incarcerated with men he had previously testified against. Defendant’s allegation that Green identified him because he would not give Green some of the money taken from Hunter’s wallet is not analogous to the Ash situation.

Next, defendant argues that he was denied his sixth amendment right to effective assistance of counsel. In order to establish ineffective assistance of counsel, defendant must show that his trial counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been different had there not been ineffective assistance of counsel. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Upon review, there is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, and any errors in trial strategy or judgment alone will not establish ineffective assistance of counsel. People v. Bell (1987), 152 Ill. App. 3d 1007, 505 N.E.2d 365.

In the present case, defendant cites to the following alleged errors made by trial counsel which he claims resulted in ineffective assistance of counsel: (1) failure to impeach Hunter’s false testimony that he had made a lineup identification of defendant; (2) incorrectly informing the jury that Hunter had identified the defendant in court; (3) incorrectly informing the jury that defendant was on probation at the time of the offense; (4) failure to object to the prosecutor’s false statements; (5) failure to obtain a ruling on the motion for a directed verdict; and (6) failure to tender a jury instruction on the lesser included offense of theft. Defendant contends that the most “flagrant” examples of defense counsel’s ineffectiveness occurred when defense counsel failed to impeach Hunter’s testimony that he had made a lineup identification of defendant; when defense counsel incorrectly informed the jury that Hunter had identified defendant in court; and when defense counsel failed to object when the State misinformed the jury as to Hunter’s identification of defendant.

As previously discussed, at trial, Hunter testified that he thought he had seen defendant in a lineup and had identified him. Hunter admitted that he was “kind of hazy on the individual” before him, but “to be fair” thought he looked like his assailant. Hunter further stated that he had had only an “impression” of his assailants. Knowing that no photograph had been taken, defense counsel attempted to impeach Hunter by asking the prosecutor for a photograph of the lineup. At that point, the prosecutor requested a sidebar, during which she stated that photographs are not taken of lineups when no identification has been made. When the court learned that defense counsel had known that there was no lineup photograph before she had even asked the question, he warned her not to “pull that again,” and the court proceeded to tell the jury that no photograph had been taken. Although testimony by a police officer that Hunter had not identified defendant at the lineup may have served to impeach Hunter, Hunter’s testimony had already been severely discredited by its equivocal and hazy content. Accordingly, in our view, any error by defense counsel in failing to impeach Hunter’s testimony was harmless.

Defendant’s analogy to People v. Bell (1987), 152 Ill. App. 3d 1007, 505 N.E.2d 365, on the issue of impeachment is unpersuasive. In Bell, defendant was convicted of the murder of his parents. At trial, defendant’s sole defense was that he had shot his father in self-defense after his father had shot his mother. On behalf of the State, defendant’s brother had testified that his parents had had a good relationship and that he had never heard them threaten, curse or swear at each other. Defense counsel made no attempt to impeach the brother’s testimony even though seven potential defense witnesses would have testified as to defendant’s parents’ violent and aggressive tempers, and the fact that they had often engaged in heated arguments. Defendant, the sole defense witness, testified as to his parents’ violent natures. However, his testimony was never corroborated. Instead, it was directly contradicted by his brother’s testimony. On appeal, the Bell court held that defendant had been denied effective assistance of counsel by the cumulative effect of counsel’s conduct at trial, including failure to investigate or to call witnesses regarding the victims’ propensity toward violence and the father's acts of aggression against the accused, and other omissions which could not be justified as trial tactics. Unlike the situation in Bell where the jury heard unequivocal testimony which directly contradicted defendant’s defense, the jury in the present case heard the hazy, uncertain testimony of Hunter, which, by itself, put Hunter’s credibility at issue.

Regarding defense counsel’s closing argument comments as to Hunter’s identification of defendant, defendant suggests that his counsel’s comments prejudiced him by seeming to bolster an identification that had never occurred. Contrary to defendant’s arguments, when placed in context, defense counsel’s comments stress the incredibility of Hunter’s testimony and, accordingly, did not prejudice defendant.

“COUNSEL: Why was the picture of Gregory Burns at that lineup, in fact, shown constantly before you, ladies and gentlemen? ‘Well,’ says Mr. Hunter, ‘I thought it was Mr. Watkins.’ He says that today. ‘Well, did you tell the police that?’ ‘No, I didn’t really tell the police.’
Mr. Watkins testified and he says, ‘He didn’t identify me. I was standing in that lineup on that October date.’ Well, ask the State if Mr. Watkins’ version isn’t the correct version. And I’m not blaming Mr. Hunter because you heard from Mr. Green, rehearsal, if you hear it enough, you start to believe it enough, that they went through four in two days.
Now, if the State instead of just bringing up a probation for that theft, they wanted to prove it beyond a reasonable doubt, if they could prove it beyond a reasonable doubt, bring the officers in who conducted the lineup, the ones who say, ‘Well, he wasn’t sure.’ Don’t you think it’s reasonable? Don’t you think the circumstances would demand that if any course of identification was made of Mr. Watkins of any sort, that they would have taken the picture just as they did with Little Greg, and that would have been paraded before you?
‘Well,’ says the State, ‘he wasn’t sure. He wanted to be correct.’ Fine. If you’re not sure, that sure translates to a reasonable doubt. If he wasn’t sure, then how can he come into a courtroom approximately a year later and identify him as the person who did it? ‘Well,’ says the State, ‘we don’t need Mr. Hunter.’
Counsel is just stirring up the mud, stirring up the waters.”

Defendant also argues that defense counsel’s failure to object to the prosecutor’s closing argument comments that Hunter had identified defendant was prejudicial. Specifically, defendant refers to the following comments made by the State:

“Selmo Hunter told you [defendant] took his wallet, and Steve Green did. * * *
*** And he says that, T walked out of there, out of the One-Stop, and my way was barred by the man that I identified later as Gregory Burns, and my money was taken from my pocket by that man.
And he said, and I’m going to quote him, ‘To be fair, I said it looked like the man.’ ”

The above comments are proper as comments on the evidence or as inferences to be drawn from the evidence. (People, v. White (1985), 134 Ill. App. 3d 262, 479 N.E.2d 1121.) Therefore, any objection raised by defense counsel would have been properly overruled. Defendant’s reliance on People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655, as support for his argument that defense counsel improperly failed to object to the prosecutor’s comments is misplaced. In Rogers, the prosecutor interjected personal views, improperly bolstered the credibility of police officers’ testimony, commented on defendant’s prior convictions as substantive proof that defendant was familiar with the legal system, and argued that defendant was a liar when there was no evidence at trial that contradicted defendant’s testimony.

Defendant further argues that defense counsel prejudiced him by allowing the State to misinform the jury that defendant had been on probation at the time he had committed the offense against Hunter and by emphasizing this misinformation on rebuttal. As a result, defendant claims that the jury convicted him “thinking that while serving one sentence, he committed another crime.” The record belies this argument. During its rebuttal, the State introduced a certified statement of defendant’s conviction for theft on October 6, 1986. Subsequently, during defendant’s rebuttal, defense counsel attempted to undermine the relevance of the conviction.

“Let’s go one step further. What did they say in rebuttal? ‘Well, Mr. Watkins is on probation. He’s on probation for that theft, and he is a thief, and he is a bad person. Because he’s a bad person, you have to find him guilty.
It’s the same thing like pointing and shouting and saying only certain parts of the evidence. Really? Let’s talk about what kind of bad thief and clever, cunning, cruel criminal he is. One, if he were such a cruel, clever, cunning criminal, why couldn’t he come up with a better lie? Why couldn’t he come up with twenty million of his criminal alibis. Because he told you what happened there. He was making a phone call. He saw what he thought was a fight. * * *
What is it when you don’t have evidence? You throw mud. You say that a man’s on probation.”

In viewing defense counsel’s comments in context, we are not persuaded that they provide grounds for reversible error.

Next, defendant argues that defense counsel erred when she failed to request a ruling on her motion for a directed verdict at the close of the State’s case. Wlien the State rested its case, the trial court asked defense counsel if she had a motion to make. When she replied that she had, the court stated:

“I will hear the motion outside the presence of the jury. The motion will be held in abeyance until we have a break so we can keep on going with the testimony.”

Defendant was then called to the stand as the sole defense witness. Following dismissal of the jury, the court asked defense counsel if she wanted to make her motion for a directed verdict in writing. She answered that she would rather make the motion orally and proceeded to do so. The trial court then denied the motion.

Defendant cites to section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(k)) and to People v. Trump (1978), 62 Ill. App. 3d 747, 379 N.E.2d 370, as support for his position that defense counsel erred in failing to request a ruling on the motion at the close of the State’s case. Section 115 — 4(k) provides:

“(k) When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” (Ill. Rev. Stat. 1987, ch. 38, par. 115— 4(k).)

Contrary to defendant’s position, section 115 — 4(k) does not mandate that defense counsel move for a directed verdict at the close of the State’s evidence or that the trial court make its ruling at the close of the State’s evidence. It is sufficient if the ruling is made at the close of all evidence. Further, People v. Trump is not analogous to the present situation. In Trump, defendant moved for a directed verdict at the close of all evidence. The trial court reserved its ruling until the jury returned its verdict. On appeal, the reviewing court held that the trial court had not erred in reserving its ruling. Defendant claims that the outcome of the trial would have been different if the trial court had ruled on his motion at the close of the State’s case, but declines to explain how such a ruling would have changed the outcome. Accordingly, we find no grounds for reversal.

Defendant also argues that defense counsel erred in not tendering theft instructions to the jury when the evidence indicated that defendant had taken Hunter’s wallet from the ground and had kept it. It is well recognized that a defendant may be entitled to have the jury instructed on a lesser included offense of the one with which he has been charged. The rationale is that an instruction on a lesser included offense provides an additional option to a jury, which may believe the defendant is guilty of something, but is uncertain as to defendant’s guilt of all of the elements of the more serious offense. People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.

The Bryant rationale does not apply in the present case for the principal reason that defendant was not only convicted of robbery, he was also convicted of aggravated battery. In order for the jury to have convicted him of the latter offense, it would have had to conclude that defendant had caused bodily harm to Hunter. This element of physical force is also present in the offense of robbery. However, it is not an element of the offense of theft. Accordingly, because the jury found that defendant had caused bodily harm to Hunter during the incident in which Hunter’s wallet was taken, we are not persuaded that had the jury instruction for theft been given, the outcome of the trial would have been different.

Defendant next argues that the State’s comments during closing argument deprived him of due process of law. Defendant admits that some of the alleged errors during the State’s closing argument were not objected to at trial, but requests that this court address these errors under the plain error doctrine on the ground that they affected substantial rights. Specifically, defendant contends that the following prosecutorial comments violated his constitutional rights: (1) the State’s comment that Hunter had identified defendant in court and at a lineup; (2) the State’s quotation from Green’s stricken testimony that he had been afraid of defendant; (3) the State’s comment on defendant’s post-arrest silence; (4) The State’s comment on defendant’s failure to present evidence; and (5) the State’s interjection of prosecutorial testimony.

The first three alleged errors were not objected to at trial or raised in defendant’s post-trial motion. As a result, because we do not find that these errors rise to the level of plain error, we find that defendant has waived their review on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) With respect to defendant’s allegation that the State erroneously commented on defendant’s failure to impeach Steve Green or that the State interjected its own testimony, neither of these allegations constitutes reversible error, individually or cumulatively.

Regarding Steve Green, the State made the following comment:
“If Steve Green was using the name Charles as an alias, if he had been convicted using that name for some crime involving dishonesty or some felony, you can be sure that the defense would have had a certified statement of conviction.”

Not only has defendant failed to indicate how he was prejudiced by this comment, we are not persuaded that this comment was directed at defendant’s failure to present evidence as to his innocence. With respect to the State’s comment on the fact that the State had not told Green what to say on the stand, this is well within the accepted range of prosecutorial closing argument as a comment on the evidence. People v. White, 134 Ill. App. 3d 262, 479 N.E.2d 1121.

Next, defendant contends that the trial court improperly denied his pretrial motion in limine to bar the State from using his prior conviction for theft to impeach his credibility because the court failed to determine if the prejudice of admitting this evidence outweighed the probative value. Both the State and defendant agree that when a defendant takes the stand, he may be impeached by a prior conviction for a felony or for a crime involving dishonesty or false statement if the conviction is less than 10 years old. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) In the present case, the conviction for theft was less than one year old.

Although the trial court must weight factors relating to the prejudice and probative value of evidence of a prior conviction in reaching its determination as to the admissibility of that evidence, the court is not required to make an express evaluation in open court of those factors. (People v. Purnell (1984), 129 Ill. App. 3d 253, 472 N.E.2d 183.) Rather, absent an express indication that the trial court was unaware of its obligation to balance these factors (People v. Smith (1979), 73 Ill. App. 3d 577, 392 N.E.2d 347), a reviewing court will assume that the trial court gave the factors appropriate consideration. People v. Washington (1973), 55 Ill. 2d 521, 304 N.E.2d 276.

In the present case, although the trial court responded immediately to the motion, there is no indication that it was unaware of its obligation to balance these factors. Accordingly, we conclude that the trial court properly denied defendant’s motion in limine to bar impeachment by a prior conviction.

Defendant next argues that the 12-year sentence imposed upon him for robbery was excessive. In raising this issue, defendant cites to the three-to seven-year statutory sentencing range for robbery (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(5)) and to the 7- to 14-year sentencing range under the extended-term provision (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(4)), but neglects to cite to the statutory provisions which provide that if the victim is 60 years of age or over, robbery is a Class 1 felony with a statutory sentencing range of 4 to 15 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1(b), 1005 — 8— 1(a)(4).) In the present case, the victim was 80 years old. Accordingly, the range of 4 to 15 years as well as the extended-term provision apply-

Defendant contends that in imposing the sentence, the trial court failed to properly consider pertinent mitigating factors and the constitutionally mandated objective of rehabilitation. In support of his contention, defendant relies on People v. Grant (1976), 38 Ill. App. 3d 62, 347 N.E.2d 244. The situation in Grant is factually distinguishable from the present case. In Grant, the victim testified that while he and his friend were walking down an alley on their way home from a currency exchange, someone jumped on his back, forced him to his knees and took $96 worth of food stamps. The facts in Grant do not indicate the victim’s age. By contrast, in the present case, the 80-year-old victim was thrown to the ground and rendered unconscious by kicks to the head. Thus, not only is the age of the victim a known factor, the act itself was more physically violent and reprehensible.

In addition, contrary to defendant’s suggestion, the trial court is not required to expressly indicate its consideration of all mitigating factors. If mitigating factors are argued before the court, absent some evidence to the contrary, it is presumed that the trial court considered them. (People v. Alcazar (1988), 173 Ill. App. 3d 344, 527 N.E.2d 325; People v. Burba (1985), 134 Ill. App. 3d 228, 479 N.E.2d 936.) In the present case, mitigating factors were presented to the trial court. Thus, the presumption applies. Accordingly, in light of the violence of the offense, the relevant statutory sentencing provision and the presentation of mitigating factors to the trial court at the sentencing hearing, we conclude that the trial court properly imposed a 12-year sentence on defendant for robbery.

Next, defendant contends that the trial court improperly sentenced him to a 12-year prison term for aggravated battery when the maximum sentence for aggravated battery is five years or, under the extended-term provision, 10 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—1(a)(6), 1005—8—2(a)(5).) With respect to the extended-term provision, defendant argues that because aggravated battery, a Class 3 felony, was not the more serious offense for which he was convicted, he was not eligible for an extended-term sentence. Therefore, defendant requests that his sentence for aggravated battery be vacated and either the cause be remanded for resentencing or this court reduce his sentence to five years, the statutory maximum for aggravated battery.

The State concedes that it was error to sentence defendant to an extended term for the offense of aggravated battery when he had been convicted of a more serious offense and requests that this court reduce defendant’s sentence for aggravated battery to five years. Therefore, by agreement of the parties, defendant’s sentence for aggravated battery is reduced to five years.

Defendant further argues that the trial court erred in failing to advise him of the possibility of treatment under the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6301 et seq.) when the trial court had sufficient information from the presentence investigation report to form a reasonable belief that he was a drug addict who could benefit from the treatment under the Act. Section 22 of the Act states, in pertinent part:

“If a court has reason to believe that an individual convicted of a crime is an addict and the court finds that he is eligible to make the election provided for under Section 21, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Department.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6322.)

Section 4.1 of the Act defines an “addict” as: “[A]ny person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6304.1.) When the information conveyed to the trial court regarding a defendant’s drug problems is sufficient to give the court reason to believe that defendant is an addict, the court is required to inform the defendant of the Act’s alternatives. However, mere use of controlled substances does not render a defendant an addict, and, consequently, a court is not required to inform the defendant of the possible application of the Act. People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 545 N.E.2d 942.

In the present case, the only information given to the court regarding defendant’s history was the following two sentences which appeared in the presentence investigation report:

“Joseph Watkins states he has never used alcohol but did use cocaine. He refused to elaborate or explain further.”

This statement suggests only that defendant had used cocaine at one time, but does not use it anymore. In our view, the statement is insufficient to have caused the trial court to form a reasonable belief that defendant is an addict. Therefore, the trial court did not err in failing to advise defendant of the possibility of treatment under the Act.

In addition, those cases relied upon by defendant are factually in-apposite and unpersuasive. In each of those cases, there was extensive evidence of each defendant’s drug addiction presented to the respective trial courts: People v. Davis (1981), 95 Ill. App. 3d 1097, 420 N.E.2d 1035 (defendant had voluntarily enrolled in a drug rehabilitation program; told the probation officer he had been a heavy drug user for approximately 10 years and was under drug influence at the time he committed the offense; at the sentencing hearing, told the court he had committed crimes to use drugs); People v. Chaput (1981), 100 Ill. App. 3d 982, 427 N.E.2d 597 (at the sentencing hearing, defendant testified that at the time he had committed the offense, he had been under the influence of drugs and alcohol; defendant considered himself to have a drug problem; corroborative letter from defendant’s rehabilitation counselor); People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024 (the presentence investigation report stated that defendant was an addict); People v. Strange (1984), 125 Ill. App. 3d 43, 465 N..E.2d 616 (the presentence investigation report indicated that defendant had been using heroin and “Ts and blues” for the past 20 years; the report recommended treatment in a drug abuse program; at the sentencing hearing, defendant asked to be paroled to a rehabilitation program); People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961 (defendant, age 23, stated that he had been using marijuana since high school and had used heroin, cocaine and “tees and blues” regularly during incarceration); People v. Melson (1976), 36 Ill. App. 3d 71, 343 N.E.2d 258 (defendant broke into a drug store in order to steal drugs; the presentence investigation report indicated that he had a serious dependence on drugs; letters from defendant’s mother and his probation officer stated that defendant had told them he could not control his use of drugs; probation officer recommended drug rehabilitation treatment).

Finally, defendant argues that his 12-year sentences for robbery and aggravated battery were improperly disparate to the three-year sentences imposed upon codefendant, Gregory Burns, for the same offenses. In light of the fact that, by agreement of the parties, defendant’s sentence for aggravated battery is reduced to five years, this analysis is limited to the sentence imposed for the robbery conviction.

As a general principle, the trial court is given considerable discretion in determining an appropriate sentence, and its determination will not be reversed on appeal absent an abuse of that discretion. (People v. Franklin (1987), 159 Ill. App. 3d 923, 512 N.E.2d 1318.) Although an arbitrary and unreasonable disparity between the sentences of codefendants who are similarly situated is impermissible, the fact that one defendant receives a longer sentence than another does not establish a per se violation of fundamental fairness. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) A disparity in sentences may be supported by such factors as a different degree of involvement in the offense and prior criminal background. People v. Franklin, 159 Ill. App. 3d 923, 512 N.E.2d 1318.

Defendant contends that he and Burns participated relatively equally in the offense. According to defendant, when Hunter left the store, Burns grabbed him, knocked him to the ground, and started to beat him. While Burns was beating him, defendant took Hunter’s wallet and left the scene. Further, defendant contends that his background and that of Burns are such that they do not justify the sentencing disparity. Defendant had three prior convictions for nonviolent crimes which occurred 10 years prior to the current offense: possession of marijuana, theft, and unlawful use of a weapon. He was sentenced to probation for each conviction. By contrast, Bums had four prior convictions: battery, unlawful possession of ammunition, theft and possession of a stolen motor vehicle. Despite these alleged similarities, the pivotal distinction in the present case is the fact that Burns had pled guilty to the offenses of robbery and aggravated battery.

It is well accepted that a trial court may grant leniency in sentencing to a defendant who by his plea ensured prompt and certain application of correctional measures against him. (People v. Bergman (1984), 121 Ill. App. 3d 100, 458 N.E.2d 1370.) In Bergman, defendant was sentenced to a term of 25 years, and his codefendant, who had pled guilty, to a six-year term for convictions of unlawful delivery and possession of a controlled substance. The reviewing court affirmed the sentence disparity on the ground that it was warranted and supported by the plea of guilty and the trial court’s disbelief that defendant had not been the moving party or had a motive to participate.

Similarly, in the present case, codefendant Burns pled guilty. In addition, defendant admits that he is the one that took Hunter’s wallet and maintained control over it. Thus, with respect to the robbery conviction, defendant appears to have had a greater degree of involvement, and was at least as culpable as, if not more culpable than, codefendant Burns. Therefore, we conclude that the trial court did not abuse its discretion in sentencing defendant to twelve years for the offense of robbery, while codefendant Burns received a three-year sentence.

For the foregoing reasons, the judgment of the trial court is affirmed; the sentence imposed for the offense of robbery is affirmed; and the sentence imposed for the offense of aggravated battery is reduced to five years.

Affirmed in part; modified in part.

O’CONNOR and MANNING, JJ., concur.

      Prior to defendant’s trial, Gregory Burns pled guilty to robbery and aggravated battery.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    STRINGER CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0332
    Opinion filed September 26, 1990.

      Schiff, Hardin & Waite, of Chicago (Paul M. Lurie, Mark C. Friedlander, and Kenneth M. Roberts, of counsel), for appellant.
    Rotman, Medansky & Elovitz, Ltd., of Chicago (Louis S. Elovitz and Melvin B. Lewis, of counsel), for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, Stringer Construction Company, Inc. (Stringer), brought an action against the Chicago Housing Authority (CHA) seeking reimbursement for the costs of extra materials and labor expended in the construction of a housing project for senior citizens. Following a jury trial, the jury returned a verdict in favor of the plaintiff and awarded $334,813.25 in damages. The CHA appeals, contending that: (1) the trial court abused its discretion in granting plaintiff leave to amend its fourth amended complaint at the close of the evidence to plead a new cause of action; (2) the trial court abused its discretion for refusing to grant the CHA sufficient time to respond; (3) the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict; (4) the trial court erred in refusing to give certain jury instructions; and (5) the plaintiff’s exclusive remedy lies with the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.) (the Act).

The evidence produced at trial reveals the following. In 1970, the CHA began a project to erect an 86-unit senior citizens home at the intersection of Larrabee and Wisconsin in Chicago. The CHA obtained Federal funding for the project from the Department of Housing and Urban Development (HUD) and entered into a consolidated annual contributions contract with HUD on June 13, 1972. On November 27, 1972, the CHA contracted with a developer to construct the building known as Project 111. 2-71. The developer could not fulfill its obligations and assigned its rights and obligations to a second developer, Industrial Mechanical, Inc. (Industrial). The CHA and HUD approved the assignment. American Insurance Company (American), a New Jersey corporation, issued a performance bond for the services to be rendered by Industrial. The contract required Industrial to complete the project by March 1, 1976. On September 1, 1976, the CHA declared Industrial in default of its contract.

In September of 1976, while the project was idle after Industrial was terminated, Philip Stringer was invited to meet with CHA officials to discuss taking over the project. Before the CHA declared Industrial in default, Stringer had been engaged as a subcontractor on the project and was therefore familiar with the project. At the CHA office, Stringer met with William Lebsock, the CHA’s director of engineering, and his assistant. Stringer was provided with the plans and specifications for the project and was asked to submit a preliminary estimate for completion of the work. After computing prices for completing the project and obtaining estimates from subcontractors, Stringer submitted a proposal to Lebsock. Lebsock then instructed Stringer to meet with American. After negotiations, American approved Stringer’s proposal. On April 21, 1977, the CHA sent a triparty contract proposal to Stringer, subject to Stringer’s obtaining an acceptable performance bond. On April 28, the CHA’s board of commissioners approved signing of the tri-party contract with American and Stringer, and Stringer immediately took over the project with the understanding that the contract would become effective once it obtained a performance bond.

Stringer commenced operations a week later, but had not yet received a response from its application for a performance bond. Construction progressed smoothly through the month of May and the first half of June. On June 15, Stringer was told to stop work because the CHA was contemplating a design change. As originally designed, each unit was to be equipped with its own kitchen. The CHA decided, however, to seek approval from HUD to eliminate the kitchens and install a central kitchen and dining facility on the first floor, a design the CHA refers to as the “congregate kitchen” format. At the time, Stringer had already installed the plumbing, heating, telephone risers and electrical lines in the walls and floors in 20 of the 86 units. A letter dated July 21, 1977, was sent to HUD from the CHA’s executive director submitting a preliminary cost estimate for the conversion and requesting HUD’s approval and additional funding. The letter noted that additional HUD funding was required because “surplus funds [were] not available from other development programs.” Stringer protested to the CHA’s project inspector, A.B. Lundquist, complaining of the inevitable cost increases that would result from any delay.

The project lay dormant until mid-August of 1977 when Stringer was advised by American that HUD had disapproved of the congregate kitchen proposal. During the work stoppage, Stringer had learned that it could not obtain a performance bond because the bonding companies would not write a bond for a project where another contractor had previously defaulted. The parties subsequently entered into a new arrangement under which American contracted with the CHA for completion of the project and with American entering into a separate contract to retain Stringer as the general contractor. The two contracts were signed on August 15, 1977. Stringer was paid the following day for work done prior to the June 15 stop order. Under its contract with American, Stringer agreed to

“complete all of the obligations of INDUSTRIAL MECHANICAL INC., in full accord with the specifications, not inconsistent herewith, for Project Ill. 2-71 (contract EP-991), the term specifications meaning, without limiting the generalization thereof, the general conditions, special conditions, and technical specifications and blueprints and drawings including all addenda thereto and change orders thereto, outlining such obligations, including all corrective and warranty work, for the sum of $992,517.00 pursuant to contractor’s proposal dated March 22,1977 as amended April, 1977.”

The contract stated further:

“In the event that CHA orders extra work to be performed subsequent to the date of this agreement Contractor shall be authorized to negotiate the price of such extra work directly with the CHA and shall accept in full payment for said extra work the amount paid by the CHA to American.”

Pursuant to provision GC.09 of the general conditions, Stringer also agreed:

“A. The Chicago Housing Authority may make changes in the work of the Contractor by making alterations therein, or by making additions thereto *** without invalidating the Contract. * * *
C. Except in an emergency endangering life or property, no change shall be made by the Contractor unless he has received a prior written order from the Chicago Housing Authority countersigned by the Architect and approved on its face by the HUD, authorizing the change, and no claim for an adjustment of the Contract Price or time shall be valid unless so ordered.”

On the same day that the two contracts were signed, the CHA’s executive director sent a letter to HUD requesting HUD’s approval for the same design change that HUD had previously rejected. Stringer testified that had he known that the CHA was still contemplating the congregate kitchen format, he never would have entered into the second contract with American.

Construction resumed according to the original plans until Stringer was again ordered to stop work some three weeks later. The CHA informed Stringer that it was again seeking approval from HUD to convert the project into the congregate kitchen format. At the time, Stringer had “roughed in” 40 of the 86 apartments. Stringer refused to stop until a written stop order was issued. A written stop order was finally delivered a week later when Lundquist visited the site and discovered that work was continuing. The stop order directed Stringer to cease construction in the kitchen areas of the individual units and in the area tentatively reserved for the congregate kitchen. Stringer’s attorney sent a letter protesting the delay. Because it was too costly to build the apartments in portions, Stringer was forced to work in only those areas unaffected by the contemplated design change. As a result of Stringer’s protest letter, Lebsock and his assistant held a meeting with Stringer and his attorney. Lebsock informed Stringer that everything was on hold pending HUD’s approval. Lebsock also stated that Stringer would be paid for the extra work.

After a month had elapsed, the CHA requested Stringer to prepare an estimate for converting the project to the congregate kitchen format. In December of 1977, Stringer was directed to implement the conversion. Thereafter, Stringer roughed in 68 of the 86 units under the new format. This work was performed without a written order as required by the general conditions of the contract. Concern over who was going to pay for the additional costs prompted Stringer’s attorney to request another meeting. According to Stringer, Lebsock stated: “Phil, I know we’ve delayed, but I assure you HUD will approve those extras.” Lebsock presented Stringer with a copy of a letter sent to HUD requesting approval and additional funding. The letter, dated November 21, 1977, was sent on the executive director’s stationery, but was signed by Lebsock as “Acting Executive Director.” The letter disclosed HUD’s refusal to approve the conversion because of the absence of a “firm commitment for an operator of the proposed facility.” In the letter, Lebsock advised HUD of the CHA’s intention to hire a health care administration consultant and an operator for the facility. Lebsock further requested that HUD approve the design change and provide additional funding.

Sometime in either January or February, the CHA reversed its decision and ordered Stringer to return to the individual kitchen format. Lebsock explained that HUD again rejected the congregate kitchen design. Stringer undertook reversing its previous work, modifying the walls, electrical wiring and the plumbing. This work was also performed without a written order. Stringer was not compensated for any of the extra work.

In the early spring of 1978, HUD finally gave partial approval of the CHA’s request to convert the building to the congregate kitchen format, and the building was constructed with a central kitchen and dining facility on the first floor. However, each unit was also equipped with a kitchen because HUD disliked the idea of having “hot-plates” in the apartments. On April 21, 1978, the CHA board issued a written change order authorizing payment of $15,000 to revise the electrical wiring. In February and September of 1979, the board issued two more written change orders authorizing payments totaling $50,000. In February of 1980, the CHA declared that Stringer had defaulted by not providing enough manpower for the job and terminated the contract. The present litigation followed.

Count I of Stringer’s fourth amended complaint was directed against both the CHA and American and was based on negligent misrepresentation. Counts II and III were based on unjust enrichment. After Stringer completed its case in chief, Stringer and American agreed to an out-of-court settlement. Stringer also agreed to voluntarily dismiss the unjust enrichment count against the CHA after the CHA filed a motion to dismiss the count. Thereafter, the CHA presented a two-tiered defense seeking to establish that: (1) the alleged misrepresentation was a future promise upon which a negligent misrepresentation action cannot rest; and (2) Stringer failed to disengage itself after learning of the alleged misrepresentation.

At the close of all the evidence, the trial judge granted the CHA’s motion for a directed verdict on the negligent misrepresentation count on the ground that Stringer had continued to work on the project after learning of the misrepresentation. The trial judge, however, believed that Stringer may have mislabeled its cause of action. After reviewing the evidence, the trial judge was convinced that Stringer had presented enough evidence to satisfy the elements for a cause of action sounding in promissory estoppel. The trial judge subsequently granted Stringer leave to amend its fourth amended complaint with an additional count sounding in promissory estoppel. Stringer submitted its fifth amended complaint the following morning along with revised jury instructions.

In its fifth amended complaint, Stringer alleged, inter alia, that: following the first order to stop work, the CHA requested Stringer to resume construction as originally proposed; Stringer was unwilling to do so due to the CHA’s indecision concerning the format of the construction; Stringer responded that it would not undertake completion of the project unless it was assured that construction would proceed in accordance with the original plans and specifications; “[i]n order to induce Plaintiff to undertake completion of the project, Defendant expressly promised and assured Plaintiff that a final decision had been made to complete the structure in the form originally proposed”; and in reliance upon that promise, Stringer entered into a contract with American to complete construction of the project. Stringer further alleged, inter alia, that: it had learned in December of 1977 that the CHA would be unable to obtain approval for the conversion for an indefinite period of time in the future; Stringer would not be paid unless and until such approval was obtained; Stringer was reluctant to proceed further; and “[i]n order to induce Plaintiff to continue with the project, Defendant expressly promised Plaintiff that if Plaintiff would continue to provide work and material for said project, Defendant would pay for all such work and material.”

The CHA moved for a directed verdict, arguing that promissory estoppel is not applicable against a public body. The motion was denied. After the jury rendered its verdict in favor of the plaintiff, the CHA filed a motion for judgment notwithstanding the verdict, claiming that: (1) promissory estoppel cannot be applied against a governmental agency; (2) leave to amend after trial was an abuse of discretion; and (3) Stringer did not rely and could not have reasonably relied upon the CHA’s promises. That motion was also denied.

Before addressing the CHA’s first contention that the trial judge abused his discretion in granting Stringer leave to amend its fourth amended complaint to conform to the proof, we shall consider the CHA’s last contention that the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.) was Stringer’s exclusive remedy because Stringer was in reality a subcontractor. Because the identical argument has been previously rejected, we will assume for the sake of argument that Stringer was in fact a subcontractor (see 17 Am. Jur. 2d Contractor’s Bonds §56, at 235 (1964), citing McDonald v. Calumet Supply Co. (1939), 215 Ind. 536, 19 N.E.2d 567) and hold that the Act did not preclude Stringer from invoking the doctrine of promissory estoppel. The CHA’s argument was previously rejected in Swansea Concrete Products, Inc. v. Distler (1984), 126 Ill. App. 3d 927, 934, 467 N.E.2d 388, where the court held that a subcontractor who fails to perfect a mechanics’ lien but has dealt directly with the property owner may recover under the doctrine of promissory estoppel. Having disposed of the CHA’s assertion that Stringer was statutorily preeluded from seeking other remedies, we now turn to the question of whether the trial judge abused his discretion in allowing Stringer to amend its fourth amended complaint at the close of the evidence.

The CHA asserts that the new cause of action materially altered the nature of the proof required to defend and was untimely as the case had been in litigation for eight years and the plaintiff had previous opportunities to amend. The CHA further contends that the trial court erroneously denied its motions for a directed verdict and judgment notwithstanding the verdict on the ground that promissory estoppel is inapplicable to a municipal corporation unless the municipality was within its power to enter into the contract (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 366, 518 N.E.2d 1005), and the promise was made by one acting within the scope of his authority (Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 1002, 350 N.E.2d 17).

We agree that the trial judge abused his discretion in granting Stringer leave to amend its complaint at the close of the evidence. Section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616) provides that amendments changing the cause of action or adding new causes of action may be allowed at any time before final judgment on just and reasonable terms, and that a pleading may be amended to conform the pleadings to the proof at any time, before or after judgment. The decision of whether to allow amendments following the presentation of the evidence rests within the sound discretion of the trial court, and that decision will not be disturbed absent a clear abuse of discretion. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 84, 392 N.E.2d 628.) In order that litigants may fully present their causes of action and settle their controversies on the merits, the greatest liberality should be provided in allowing amendments. (Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 1074-75, 510 N.E.2d 1162.) Doubts should be resolved in favor of allowing amendments. (Ryan, 157 Ill. App. 3d at 1075.) However, amendment of the pleadings to conform to the proof cannot be allowed unless the evidence already produced supports the amendment. Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 111. App. 3d 1012, 1020, 525 N.E.2d 1127; Lawing v. Chicago Transit Authority (1986), 142 111. App. 3d 119, 125, 491 N.E.2d 145; Mundt v. Ragnar Benson, Inc. (1974), 18 111. App. 3d 758, 772-73, 310 N.E.2d 633; Friestedt v. Chicago Transit Authority (1970), 129 111. App. 2d 153, 156, 262 N.E.2d 771.

To sustain a cause of action for promissory estoppel, the claimant must prove: (1) a promise unambiguous in terms; (2) reliance upon the promise; (3) that such reliance was expected and foreseeable by the promisor; and (4) that such reliance resulted in injury. (Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325, 327-28, 534 N.E.2d 575; Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 754, 484 N.E.2d 873.) In its fifth amended complaint, Stringer alleges two instances where a promise induced reliance: (1) a promise made in August of 1977 that a final decision had been made to build the project according to the original plans which induced Stringer to enter into the second contract with American; and (2) a promise made in December of 1977 that the CHA would pay for the extra labor and materials in order to induce Stringer to proceed with construction after the CHA failed for the second time to secure HUD’s approval.

Assuming for the sake of argument that the evidence supported the existence of the first promise, the evidence adduced at trial clearly shows that Stringer did not rely upon that promise to its injury. When Stringer received the second stop order in September after signing the second contract with American and learned that the CHA was still contemplating the congregate kitchen format, Stringer had not yet performed any extra work and was within its rights to refuse any directions to effect changes absent a written proceed order or change order. There was no causal connection between Stringer’s signing of the second contract with American and its decision in December, some four months later, to perform extra work without a written order. Stringer’s brief refers to the increase in costs caused by the interruption which Stringer would never have incurred had it not been induced to enter into the second contract. Those costs, however, are delay damages and not costs incurred by reason of performing extra work. The essence of the dispute involves costs associated with extra work, not damages caused by delays. Nor could Stringer recover delay damages as the contract specifically provides in provision G.C.12(B) that: “No payment or compensation of any kind shall be made to the Contractor for damage because of hindrance or delay from any cause in the progress of the work whether such hindrances or delays be avoidable or unavoidable.” Therefore, the evidence does not establish a prima facie case for an action in promissory estoppel based on the alleged first promise as the proof did not establish the fourth element.

The only evidence relied upon by Stringer in support of the existence of the second promise was Stringer’s own testimony: “Mr. Lebsock said that — everything was on hold pending HUD’s approval— However, we would be paid for any changes that occur.” This testimony was elicited when Stringer was asked to describe the conversation at the first meeting. Because Stringer described Lebsock’s statement in the passive voice, which may or may not have been an accurate portrayal of the conversation, his testimony fails to establish “a promise unambiguous in terms” that the CHA was going to pay if HUD’s approval were not obtained. Further, when Lebsock told Stringer that he would be paid for the extra work, Lebsock also showed Stringer a copy of the letter he sent to HUD requesting additional funding for the conversion. If Lebsock was making a promise that the CHA would pay if HUD rejected the design change, why did he show Stringer a letter sent to HUD requesting additional funding? The only natural conclusion that could be drawn from the testimony is that Lebsock was assuring Stringer that HUD would approve the changes and provide the additional funding as requested in the CHA’s letters of correspondence with HUD. This conclusion is buttressed by Stringer’s other testimony describing the conversation at the second meeting. According to Stringer’s own testimony, Lebsock stated at the second meeting: “Phil, I know we’ve delayed, but I assure you HUD will approve those extras.” The totality of the evidence establishes at most a prediction that HUD would approve the changes and provide the additional funding. A prediction, opinion or prophecy is not a promise. (See Security Bank & Trust Co. v. Bogard (App. Ct. Ind. 1986), 494 N.E.2d 965, 969 (holding that statement by bank employee that he would take farmer’s loan application to loan committee and that bank would soon extend credit to farmer was only a prediction and not a promise for purposes of promissory estoppel).) Therefore, the evidence fails to establish a prima facie case for promissory estoppel based on the alleged second promise as the proof fails to establish the first element.

It is also clear that amendments to the pleadings should not be allowed if the other party would be prejudiced or surprised. (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 866, 501 N.E.2d 273; Able v. Pure Oil Co. (1972), 8 El. App. 3d 558, 563, 290 N.E.2d 331.) The test for determining whether the trial court properly exercised its discretion is whether the amendment furthers the ends of justice. (Trident, 149 Ill. App. 3d at 866.) After considering the factors outlined in the cases, we have concluded that allowing Stringer to amend its complaint was an abuse of discretion even if that amendment had been supported by the evidence. ■

It has been generally recognized that amendments should not ordinarily be permitted after trial has begun if the proposed amendment raises matters of which the pleader had full knowledge at the time of interposing the original pleading and there is no excuse for failing to raise those matters in the original pleading. (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 165, 356 N.E.2d 164.) Stringer’s new theory of recovery under the doctrine of promissory estoppel is not based on any evidence that was not known when the litigation commenced in 1980. We also consider that Stringer has had previous opportunities to amend as this case has been in litigation for eight years and that Stringer went to trial with its fourth amended complaint. (See Friestedt v. Chicago Transit Authority (1970), 129 Ill. App. 2d 153, 156, 262 N.E.2d 771 (upon a motion to amend the pleadings, the court may consider whether there were previous opportunities to amend).) Most important, however, is the rule that amendments should not be permitted where the amendment alters the nature of the proof required to defend. (Blazina, 42 Ill. App. 3d at 165.) Had the CHA known it was going to defend a promissory estoppel action, it could have engaged in additional discovery and made an attempt to present evidence challenging the reasonableness of Stringer’s reliance. The CHA could also have interposed the affirmative defense that the alleged promises were ultra vires, and in support thereof, present evidence demonstrating Lebsock’s lack of authority to make the alleged promises and evidence detailing the appropriation process for CHA projects. On the current status of the record, this court is unable to determine whether the CHA could have been rendered liable under the doctrine of promissory estoppel had a prima facie case been established.

Stringer’s argument that the CHA’s promise could not be ultra vires because the CHA’s actions fall within that category of cases where the municipality had the power to enter into the contract, but exercised its power in an irregular manner (Stahelin v. Board of Education School District No. 4 (1967), 87 Ill. App. 2d 28, 40, 230 N.E.2d 465), is without merit because the only money that was spent irregularly, if any, was HUD’s money. Stringer’s new theory of recovery, however, is based upon a promise that the CHA would pay if HUD withheld approval. There is no evidence that the CHA ever spent any of its own money on the project.

For the foregoing reasons, the judgment must be reversed. In order to do justice, however, we believe a new trial is warranted. Accordingly, we reverse the judgment of the circuit court and remand for a new trial.

Judgment reversed and remanded.

RIZZI and FREEMAN, JJ., concur.

      We will use “Stringer” interchangeably to refer to both Stringer Construction Company and its owner, Philip Stringer.

      We aré compelled to confess our bewilderment that the parties reached the trial stage on the negligent misrepresentation count. In Illinois, the tort of negligent misrepresentation applies to situations involving defendants who are in the business or profession of supplying information for the guidance of others and who make negligent representations in the course of their business or profession. (See, e.g., Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, 134-35, 440 N.E.2d 282.) There was never any allegation that the CHA is in the business of supplying information and clearly no such allegation could be made.


author: PRESIDING JUSTICE CERDA JUSTICE RIZZI,

text:
      In re MARRIAGE OF HOWARD E. JOHNSTON, Plaintiff, and FRANCES JOHNSTON, Defendant-Appellee (Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, Defendant-Appellant).
    First District (3rd Division)
    No. 1—89—2167
    Opinion filed October 10, 1990.
    Rehearing denied December 27, 1990.
    Modified opinion filed January 2, 1991.
    RIZZI, J., specially concurring.

      Fagel, Haber & Maragos, of Chicago (Maynard B. Russell, Alvin D. Meyers, and Steven J. Teplinsky, of counsel), for appellant.
    Doss, Puchalski & Keenan, Ltd., of Chicago (Owen L. Doss, Joseph D. Keenan III, and James M. Forkins, of counsel), for appellee Frances Johnston.
    Theodore G. Karavidas, of Williston, McGibbon & Kuehn, of Barrington, for appellee Howard E. Johnston.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

This is an appeal from an order of the circuit court directing the Retirement Board of the Firemen’s Annuity and Benefit Fund (Retirement Board), which was made a party to the action for the dissolution of the marriage of Howard and Frances Johnston, to comply with any qualified domestic relations order that might be entered in the future awarding a portion of Howard’s pension to Frances for the remainder of her life. Although a motion to dismiss the appeal for lack of jurisdiction was previously denied by this court, we determine today that the appeal must be dismissed for lack of jurisdiction.

In 1987, Howard and Frances each filed petitions for the dissolution of their, marriage which were consolidated by agreed order. Howard was a retired Chicago firefighter who had been receiving annuity payments since January 18, 1986, from the Firemen’s Annuity and Benefit Fund pursuant to the Illinois Pension Code (Code) (Ill. Rev. Stat. 1987, ch. 108½, par. 6—101 et seq.). On February 23, 1989, Frances filed a petition alleging that Howard’s pension benefits were a marital asset and that she and her husband wanted to enter into a property settlement that would include an equal division of the pension benefits “so as to vest in Frances Johnston her share of the husband’s pension for her life, notwithstanding Howard E. Johnston’s prior demise.” Frances further alleged that the Retirement Board had in the past opposed the division of pension benefits in dissolution proceedings, and she prayed for an order directing the Retirement Board to comply with any future qualified domestic relations order awarding “a portion of the pension benefits of Howard E. Johnston to Frances Johnston for her lifetime.” The Retirement Board filed a motion for judgment on the pleadings which asserted that the Code did not provide benefits for a fireman’s former spouse for the remainder of her life.

After submission of briefs and a hearing, the trial court denied the motion and held that the Code did not bar a qualified domestic relations order awarding a portion of Howard’s pension benefits to Frances for her life. The trial court granted Frances’ petition and ordered the Retirement Board to “comply with any QDRO order entered by this Court awarding a portion of the pension of HOWARD E. JOHNSTON to FRANCES JOHNSTON for her lifetime.”

The law prohibits appeals from nonfinal orders unless specifically authorized by the supreme court rules. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, 429 N.E.2d 483.) The Retirement Board’s notice of appeal invoked Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)), which permits a party to appeal as a matter of right from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” However, as a prerequisite to appellate jurisdiction under Supreme Court Rule 307(a)(1), it must first be determined that the interlocutory order appealed from constitutes an injunction or has the “force and effect” of an injunction. (In re A Minor (1989), 127 Ill. 2d 247, 260, 537 N.E.2d 292.) Because we find that the trial court’s order cannot be characterized as injunctive, we must dismiss the appeal.

The purpose of Rule 307(a)(1) is to provide for the interlocutory review of a court’s exercise of its equitable power to grant injunctive relief and to prevent abuses of the power that could result in irreparable harm. (Bohomolec v. Gieblewicz (1971), 3 Ill. App. 3d 16, 18, 278 N.E.2d 202.) Whether an interlocutory order can be characterized as injunctive must be determined by examining the substance of the order rather than its form. In re A Minor, 127 Ill. 2d at 260.

In the case at hand, the relief granted in the trial court order is not injunctive in nature but, rather, the order is interlocutory because it merely declares the rights and obligations of the parties with respect to Howard’s pension benefits. The trial court’s order accomplishes nothing more than to command the Retirement Board to do what it would already have to do if the qualified domestic relations order were issued, i.e., to obey the order unless it is overturned or to stand in defiance of the power of the court. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 173-74, 429 N.E.2d 483.) Moreover, the order is not of the kind that could cause irreparable harm to the Retirement Board if an appeal were not taken until the divorce decree were entered. If an immediate appeal would be more helpful in advancing the proceedings below, appellate jurisdiction may be appropriately secured under Supreme Court Rule 308. (107 Ill. 2d R. 308.) Accordingly, we dismiss the appeal for lack of jurisdiction.

Appeal dismissed.

WHITE, J., concurs.

JUSTICE RIZZI,

specially concurring:

I agree that this appeal should be dismissed for the reasons stated by the majority. In addition, however, I believe that this case cries out for a discussion relating to what is a qualified domestic relations order (QDRO). I also believe and suggest that the Illinois legislature should amend the Pension Code to provide for the assignment or alienation of plan benefits pursuant to defined Illinois QDROs. See Ill. Rev. Stat. 1989, ch. 1081/2, par. 1 — 101 et seq.

Plainly, contrary to the assumption of both parties, the trial court could not and cannot enter a QDRO in this case. The order that was entered was drafted by the attorney for petitioner Frances Johnston. The order provides:

“ORDER
This cause coming on to be heard on the Petition of the Defendant and Counter-Plaintiff, FRANCES JOHNSTON, for an order on the Defendant, the RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF CHICAGO (hereinafter ‘THE BOARD’), finding and ordering that THE BOARD is bound by a Qualified Domestic Relations Order (hereinafter ‘QDRO Order’) entered herein; the Answer thereto of the Plaintiff and Counter-Defendant, HOWARD E. JOHNSTON, and the Defendant, THE BOARD; and THE BOARD’S Motion for Judgment on the Pleadings; the Court having read the pleadings and the briefs filed by the parties, having heard arguments of counsel, and being fully advised in the premises; DOTH FIND:
1. That this court has jurisdiction over the Defendant, THE BOARD, and the subject matter hereof.
2. That Chapter lOSVa, §6 — 142(e) of the Illinois Revised Statutes is not a bar to a QDRO Order awarding to FRANCES JOHNSTON benefits from THE BOARD for the remainder of her life after HOWARD E. JOHNSTON’s demise, _
3. That THE BOARD is bound by and ordered to comply with any QDRO Order entered by this Court awarding a portion of the pension of HOWARD E. JOHNSTON to FRANCES JOHNSTON for her lifetime.
IT IS THEREFORE ordered, adjudged and decreed as follows:
(A) That this Court has jurisdiction over the parties and of the subject matter hereof.
(B) That THE BOARD’S Motion for Judgment on the Pleadings in its favor is denied.
(C) That Chapter 108½, §6 — 142(e) of the Illinois Revised Statutes is not a bar to a QDRO Order awarding to FRANCES JOHNSTON benefits from THE BOARD for the remainder of her life after HOWARD E. JOHNSTON’s demise.
(D) That THE BOARD is bound by and ordered to comply with any QDRO Order entered by this Court awarding a portion of the pension of HOWARD E. JOHNSTON to FRANCES JOHNSTON for her lifetime.”

The main problem with the above order is that it was entered in a case which involves the Firemen’s Annuity and Benefit Fund, which does not have QDRO provisions. Neither the Pension Code nor any of the separate benefit plans covered by the Pension Code provide for QDROs.

QDROs came into existence with the adoption of the Retirement Equity Act of 1984 (REA). (See 29 U.S.C. §1001 (1988); Massler, Qualified Domestic Relations Orders: A Statutory Analysis, 19 Seton Hall 224 (1989).) Before the REA, Internal Revenue Code section 401(a)(13) disqualified pension or profit sharing plans if plan benefits could be assigned or alienated. The REA amended the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1954 by creating a limited exception to the prohibition of assignment or alienation of qualified plan benefits when a qualified domestic relations order (QDRO) is issued pursuant to State domestic relations law. See ERISA, 29 U.S.C. §§1001,1Ó56 (1988); I.R.C. §§401, 414 (1986).

Thus, the QDRO provisions only apply to pension plans which are subject to the assignment and alienation restrictions of ERISA and the Internal Revenue Code. (See I.R.C. §§414(d), 414(p)(9), 410(cXA) (1986).) The Pension Code and most State and Federal pension and benefit plans are exempt from QDRO rules. (I.R.C. §§414(d), 410(c)(A) (1986).) Many Federal pension plans, however, authorize State domestic relations courts to divide pension benefits. These plans include military retirement benefits, railroad retirement benefits and civil service benefits. Other Federal plans must be analyzed according to their own individual terms and provisions. Massler, Qualified Domestic Relations Orders: A Statutory Analysis, 19 Seton Hall 224, 229 (1989).

Since the Pension Code does not provide for QDROs, it is clear that a QDRO could not be entered in this case. Another problem with the order that was entered in this case, however, is that it does not comply with the requirements of a QDRO even if this were a case in which a QDRO could be entered. ERISA, which applies to private pension plans, provides:

“(d) Assignment or alienation of plan benefits
(1) Each pension plan shall provide that benefits provided under
the plan may not be assigned or alienated. * * *
(3)(A) Paragraph (1) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order. Each pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order.
(B) For purposes of this paragraph—
(i) the term ‘qualified domestic relations order’ means a domestic relations order—
(I) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and
(II) with respect to which the requirements of subparagraphs (C) and (D) are met, and
(ii) the term ‘domestic relations order’ means any judgment, decree, or order (including approval of a property settlement agreement) which—
(I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and
(II) is made pursuant to a State domestic relations law (including a community property law).
(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies—
(i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
(ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
(iii) the number of payments or period to which such order applies, and
(iv) each plan to which such order applies.
(D) A domestic relations order meets the requirements of this subparagraph only if such order—
(i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
(ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and
(iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.” 29 U.S.C. §1056 (1988).

Clearly, the order in the present case does not comply with the requirements of a QDRO. If an order does meet the requirements of a QDRO in a case involving a private pension plan under ERISA, the non-employee divorced spouse would receive the marital property benefits provided for in the order or judgment directly from the fund or plan. This provision for direct receipt of the marital property benefits cannot be accomplished by court order in a case involving a pension plan under the Pension Code. (In re Marriage of Papeck (1981), 95 Ill. App. 3d 624, 420 N.E.2d 528.) This fact, however, does not mean that the nonemployee spouse cannot receive a portion of the employee spouse’s pension benefits as part of the marital property in a case involving a pension plan under the Pension Code.

Under Illinois law, pension benefits are property interests rather than mere expectancies, regardless of whether they are matured, vested, nonvested, contributory or noncontributory. Pension rights are construed as deferred compensation in the nature of contract rights, subject to the terms of the particular pension plan. Thus, the spouse of a participant in a pension plan under the Pension Code, upon dissolution of the marriage, obtains an actual co-ownership interest in the benefits as marital property. The anti-assignment or alienation provision of a pension plan under the Pension Code does not bar the nonemployee spouse’s claim to a certain portion of the pension benefits. The nonemployee spouse, however, cannot recover the claim directly from the fund, the plan administrator or the board. In such cases, therefore, the trial court will determine the present value of the pension interest allocable as marital property and may award it to the employee spouse, giving the nonemployee spouse an offsetting award from other marital property. If present value is too difficult to determine, or if there is a lack of other marital property to award the nonemployee spouse, the trial court has the discretion to allocate to each spouse an appropriate percentage of the pension to be paid if and when the pension becomes payable. When the pension becomes payable, however, it can only be paid directly to the employee spouse, who in turn must then pay to the nonemployee spouse whatever share that spouse is to receive pursuant to the judgment entered by the trial court. (In re Marriage of Hackett (1986), 113 Ill. 2d 286, 292-94, 497 N.E.2d 1152, 1154-55; In re Marriage of Papeck, 95 Ill. App. 3d 624, 629-30, 420 N.E.2d 528, 531-32.) In dividing the pension proceeds in this fashion, the trial court must consider as a relevant factor the tax consequences. Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(11).

The circumstances which I have just described lead me to the second reason for writing this specially concurring opinion, which is to suggest to the legislature that it review the Pension Code to consider providing for the assignment or alienation of plan benefits pursuant to defined Illinois QDROs in the Pension Code. This would mean that if a trial judge entered a defined Illinois QDRO as provided for by the legislature, a nonemployee divorced spouse who is involved in a public pension plan under the Pension Code would receive the marital property benefits provided for in the trial court’s order or judgment directly from the fund or plan. Also, if the legislature took such action it would provide certainty and consistency in the trial court and for the parties where a pension plan under the Pension Code is involved, and it would facilitate distribution of plan benefits to the divorced spouse. If the Pension Code is amended as suggested, it would affect the following separate pension plans:

General Assembly Retirement System;
Police Pension Fund — Municipalities 500,000 and Under;
Firefighters’ Pension Fund — Municipalities 500,000 and Under;
Policemen’s Annuity and Benefit Fund — Cities over 500,000;
Firemen’s Annuity and Benefit Fund — Cities Over 500,000;
Illinois Municipal Retirement Fund;
Municipal Employees’, Officers’ and Officials’ Annuity and Benefit Fund — Cities Over 500,000 Inhabitants;
County Employees’ and Officers’ Annuity and Benefit Fund-Counties Over 500,000 Inhabitants;
Forest Preserve District Employees’ Annuity, and Benefit Fund;
Laborers' and Retirement Board Employees’ Annuity and Benefit Fund — Cities Over 500,000 Inhabitants;
Park Employees’ and Retirement Board Employees’ Annuity and Benefit Fund — Cities Over 500,000;
Sanitary District Employees’ and Trustees’ Annuity and Benefit Fund;
• State Employees’ Retirement System of Illinois;
State Universities Retirement System;
Teachers’ Retirement System of the State of Illinois;
Public School Teachers’ Pension and Retirement Fund — Cities Over 500,000 Inhabitants;
Judges Retirement System of Illinois;
House of Correction Employees’ Pension Fund;
Public Library Employees’ Pension Fund. See Ill. Rev. Stat. 1989, ch. 1081/2, par. 1 — 101 et seq.

In suggesting to the legislature that it review the Pension Code to consider providing for the assignment or alienation of plan benefits pursuant to defined Illinois QDROs in the Pension Code, I wish to point out that ERISA made a radical but enlightened departure from prior law by permitting benefits to be paid to the divorced spouse before a participant has separated from service. Pursuant to a QDRO, before a participant has separated from service, benefits may be paid to the divorced spouse on or after the date that the participant spouse attains or would have attained the earliest retirement age. “Earliest retirement age,” a term of art, is defined under ERISA. 29 U.S.C. §§1056(EXi), (n) (1988); I.R.C. §§414(pX4XA), (4XB).

In making my suggestions to the legislature, I fully realize that there are numerous distinctions between private pension plans covered under ERISA and pension plans covered under the Pension Code for public employees which are primarily supported by public funds. (See Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 419, 367 N.E.2d 1325, 1327.) It is my belief, however, that any claimed differences between public employees in Illinois and those in the private sector are nonexistent when it comes to the problems involving domestic relations and the benefits which are derived by allowing the assignment or alienation of plan benefits in a pension plan pursuant to legislatively defined QDROs. Surely, divorced spouses and children of public employees in Illinois have the same needs and should have the same procedural entitlement as divorced spouses and children of private sector employees when it comes to being able to receive benefits that are due as marital property under pension plans.

Also, I fully realize that there may or may not be Federal tax consequences involved should the legislature amend the Pension Code as suggested. It is conceivable, however, that if the Pension Code is amended to allow the assignment or alienation of plan benefits pursuant to defined Illinois QDROs, and the amendments comply with the assignment or alienation of plan benefits pursuant to the defined QDROs under ERISA, the Federal government may treat or amend the Internal Revenue Code to treat the benefits received under defined Illinois QDROs the same as benefits received pursuant to defined QDROs under ERISA. Thus, the Federal tax consequences, if any, of making the suggested amendment to the Pension Code remain to be seen.

Lastly, I wish to remind the legislature that one of this country’s fastest growing means of saving in recent years has been the accumulation of pension or retirement benefits for employees in the private as well as the public sector. As accrued benefits have become a significant share of a family’s savings, couples facing divorce and the judges handling domestic relations cases have found the legal question of the divisibility of benefits in a property settlement an important economic issue. In 1984, the U.S. Congress therefore addressed the issue of the divisibility of pension benefits in the private sector as they relate to domestic relations cases. (See ERISA, 29 U.S.C. §§1001, 1056 (1988).) It is now time for the Illinois legislature to address the same issue for all of the employees of Illinois who have pension plans that are provided for under the Pension Code. These working citizens of Illinois in the public sector and their families deserve to be treated no less than the working citizens of Illinois in the private sector and their families when it comes to the divisibility of pension funds in the domestic relations courtrooms.

      See Social Security Act, 42 U.S.C. §659 (1986). For example, the Social Security Act preempts local law vitiating State court authority to divide social security benefits. The Social Security Act contains special provisions dealing with the rights of divorced spouses to obtain old age, disability, survivor and parents’ benefits. See Massler, Qualified Domestic Relations Orders: A Statutory Analysis, 19 Seton Hall 229 (1989).

      The same requirements that appear in ERISA for a QDRO are found in the Internal Revenue Code of 1986. 26 U.S.C. §414 (1986).