text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ROLIH, Defendant-Appellant.
    Third District
    No. 3—91—0762
    Opinion filed September 4, 1992.

      Law Offices of Josette Skelnik, of Elgin (Michael Kalland, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant John Rolih was indicted for the offenses of unlawful possession of a controlled substance with intent to deliver and unlawful possession of a controlled substance. Both counts charged that on or about March 8, 1989, defendant possessed more than 15 but less than 100 grams of a substance containing cocaine.

After a bench trial, defendant was found guilty of the offense of possession with intent to deliver cocaine and the offense of possession of cocaine. He was convicted and sentenced on both counts. On appeal, he alleges that plea-related statements were used against him and that it was error to enter convictions and sentences on both counts. We affirm as to possession with intent to deliver cocaine and vacate as to the offense of possession of cocaine.

At trial, Mark Stevens, an agent with the Division of Criminal Investigation of the Illinois State Police, testified that on March 8, 1989, at 1:30 p.m., pursuant to a search warrant, he searched defendant’s residence. Stevens testified that the police seized an envelope containing two plastic bags of white powder, a vial containing white powder, $490 in currency, and a wallet containing $100 from defendant’s trousers. From defendant’s coat, they seized a vial containing white powder and a checkbook with $110 currency in it. From under a mattress, they seized a plastic bag containing white powder. Stevens stated that all of the bags except the bag found under the mattress tested positive for cocaine. The agents also seized a rolled-up $1 bill and identification showing that defendant lived at the residence being searched. In the basement, agents found a triple beam scale in a box with defendant’s business card for his chauffeuring business, another triple beam scale inside a leather bag, three empty bottles of inositol, which were near the triple beam scale, a ceramic plate with white residue, a box of clear sandwich bags, and a baggie containing white residue.

Stevens also stated that they found a WD 40 can with a false bottom in the garage. Inside the can were four plastic bags of white powder, which were tested and found to contain cocaine. The powder was also found to contain various combinations of inositol, manitol, and be-tamanitol. Stevens testified that based on his experience and numerous investigations, it was his opinion that scales such as those seized were frequently used to weigh cocaine, that inositol powder was frequently used to dilute cocaine, and that ceramic plates such as the one seized were commonly used as a surface on which to mix cocaine with another agent.

Stevens also testified that when he showed defendant the WD 40 can and the bags from it, defendant responded that he was surprised that he had so much cocaine left and that he was planning to go buy a larger quantity. He also stated that defendant said that “he wished to cooperate in any way possible for future consideration of the charges that would be pending against him” and that “he would do anything to assist us which would in turn assist him with — in consideration of the charges.”

Stevens further testified that after the search was completed, defendant was taken to the police headquarters, where he was given Miranda warnings and agreed to answer questions. Stevens testified over objection that defendant told him that he had been using cocaine for five years and had been selling it for three to four months prior to the search. Stevens testified further about the information defendant gave him regarding his cocaine sales. Stevens stated that defendant was released on the night of his arrest due to his offer of cooperation.

On cross-examination, Stevens denied that defendant first said that he would cooperate only after he had been told that agents were going to arrest defendant’s wife and put his son in Department of Children and Family Services (DCFS) custody. Stevens stated that he was unaware that the wife was arrested at 1:45 p.m. that day.

On redirect, Stevens stated that the decision not to arrest defendant on the day of the search was made by an assistant State’s Attorney after defendant agreed to cooperate with the State Police officers in developing cases against others. The prosecution tried to adduce evidence of whether defendant had followed through on his promises to cooperate. After defense counsel’s objection, the prosecution argued that defendant’s indication that he would cooperate was evidence of consciousness of guilt.

Defendant testified that he was 48 years old and resided in Lock-port. He acknowledged that he had twice been convicted of a felony and had served time for one of the convictions. He stated that since 1983 he had been involved in a limousine business called “All American Chauffeuring.” The business address was defendant’s residence. He stated that he used the garage there for the business and that the six drivers and two mechanics had regular access to the garage.

Defendant testified that he began using cocaine in 1984 after his son had been badly burned in an accident. He stated that by March 1989 he used approximately a quarter ounce per day. He admitted that he had been selling cocaine for about four to five months before the arrest to support his personal use. Defendant stated that the cocaine in his pants pockets and coat pocket was what was left of his personal supply of cocaine used at a party.

Defendant further testified that on the day of the search, at the time defendant was shown the cocaine the police seized from his clothes, Jack Townsend, a police sergeant, told him that he either had a real problem or that he would help them out. Defendant stated that he responded that maybe they could work something out. At the house, defendant offered to help solve a murder that had occurred in 1976. Townsend stated that it was not his case and that he would have to talk to the case agent. Defendant denied that he made any statements to Stevens when the police showed him the WD 40 can.

Defendant also testified that defendant heard agents talking about arresting his wife and taking his son to DCFS. Defendant stated that at the station defendant asked Stevens if they had a deal and that Stevens said that they did not because the murder was too old. On cross-examination, defendant testified that the WD 40 can found in the garage with cocaine in it was not his.

In rebuttal, Townsend testified that, during the search, when the WD 40 can and the cocaine inside were shown to defendant, defendant threw up his hands and said “What do you want me to do?” He also stated that he did not remember defendant telling Stevens that he was surprised that he found so much in his house and that he thought he was almost out.

The court found defendant guilty on both counts I and II. Defendant filed a post-trial motion in which he alleged, among other things, that the court erred in considering plea-related statements. The court ruled that the statements at issue were not plea-related and were properly admitted. The court sentenced defendant to concurrent 15-year terms of imprisonment on the two counts.

Defendant now appeals.

The first issue for review is whether the statements defendant made before his arrest and thereafter at the station house constituted plea-related statements.

Defendant argued in his post-trial motion that the statements that defendant “wished to cooperate in any way possible for future consideration of the charges that would be pending against him” and that “he would do anything to assist us which would in turn assist him with — in consideration of the charges” constituted plea-related statements which were improperly admitted under Supreme Court Rule 402(f) (134 Ill. 2d R. 402(f)).

Supreme Court Rule 402(f) provides as follows:

“Plea Discussions, Plea Agreements, Pleas of Guilty Inadmissible Under Certain Circumstances. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 134 Ill. 2d R. 402(f).

The purpose of this rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enters plea discussions at his peril. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229, 235.) The characterization of a defendant’s statement as plea-related must turn on the facts of each case. (Friedman, 79 Ill. 2d at 351-52, 403 N.E.2d at 235.) The test to determine a plea-related statement is (1) whether the accused exhibited a subjective expectation to negotiate a plea and (2) whether the expectation was reasonable under the totality of objective circumstances. (79 Ill. 2d at 351.) Not all statements made in hopes of some concessions are necessarily plea discussions. People v. Victory (1981), 94 Ill. App. 3d 719, 419 N.E.2d 73.

The Second District Appellate Court in People v. Ward (1989), 192 Ill. App. 3d 544, 546, 548 N.E.2d 1120, held that defendant’s post-arrest statement that he knew many narcotics dealers and would like to “work this [his residential burglary charge] off” was not plea-related and was therefore admissible. The court held that defendant’s use of the ambiguous statement did not sufficiently demonstrate that he was initiating plea discussions. Rather, the court stated, it was equally compelling to conclude that he was attempting to trade information about narcotics dealers for the dropping of the charges against him or that he just wanted to go home as he himself admitted.

In People v. Burns (1989), 188 Ill. App. 3d 716, 544 N.E.2d 466, the fourth district held that defendant’s post-arrest statement en route to the station house, that “he could help out” and that he could “do in someone in Wisconsin” as long as he were not “thrown in jail,” was not held to be a plea-related statement and thus was admissible. The court reasoned that the rudiments of a negotiated plea were lacking. There was no indication that defendant intended to enter a guilty plea to the charges for which he was arrested. The record only showed that defendant was bargaining for his immediate release and did not indicate that defendant demonstrated a subjective expectation to negotiate a plea.

In People v. Tennin (1984), 123 Ill. App. 3d 894, 463 N.E.2d 202, the second district refused to characterize as plea related defendant’s post-arrest statement “I want to make a deal.” The court stated that “[d]efendant’s subjective expectations *** are not explicit when we look to his sole statement in the record concerning negotiation, i.e., T want to make a deal.’ ” (Tennin, 123 Ill. App. 3d at 897, 463 N.E.2d at 205.) The court stated that “defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain.” 123 Ill. App. 3d at 897, 463 N.E.2d at 205.

The rudiments of a negotiated plea are lacking here. Defendant did not explain what he meant by the terms “cooperation,” “future consideration of the charges,” and “in consideration of the charges.” These words do not manifest that defendant was willing to plead guilty to the charges against him. He did not indicate what the terms were under which he would be willing to bargain. Moreover, defendant testified that he made the statements to keep his name from appearing in the newspaper for his family’s sake and to give information to the police to solve a murder he had been accused of. Accordingly; we find no error in admission of defendant’s statements.

The second issue for review is whether the court erred in entering convictions and sentences for both possession of a controlled substance and possession of that controlled substance with intent to deliver. The People concede that this was error and request the court to vacate the judgment of conviction and sentence as to unlawful possession of a controlled substance.

For the foregoing reasons, the conviction and sentence as to possession with intent to deliver cocaine are affirmed and the conviction and sentence as to possession of cocaine are vacated.

Affirmed in part and vacated in part.

BARRY, P.J., and HAASE, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD JOHN (E.J.) SPRIEGEL, Defendant-Appellant.
    Third District
    No. 3—91—0858
    Opinion filed September 4, 1992.

      Flack, McRaven & Stephens, of Macomb (James Patrick Murphy, of counsel), for appellant.
    William Poncin, State’s Attorney, of Macomb (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The police found a brick of cannabis in the trunk of defendant’s car after he consented to a search. He was convicted of unlawful possession and now appeals the denial of his motion to suppress. We affirm.

On February 11, 1989, the Macomb police department received an anonymous tip on the Crime Stoppers line. The caller said that on February 12, E.J. Spriegel would be driving from Wheeling, Illinois, to Macomb in a silver or bluish Toyota, license plate number ANJ 342. The caller also described Spriegel’s physical appearance. According to the tip, the vehicle would contain marijuana and cocaine, with the cocaine being concealed in a “Fix-a-Flat can.”

Acting on this information, Sergeant Robert Fitzgerald checked the license plate and learned that it was registered to Patricia Spriegel of Wheeling, Illinois. His check of the defendant’s driver’s license revealed that it listed a Macomb address. Sergeant Fitzgerald disseminated this information to other police departments along possible routes from Wheeling to Macomb.

On February 12, 1989, State Police Trooper Michael Inman learned that the Toyota had been observed near Roseville at about 10 p.m. Inman eventually spotted the car and began to follow it into Macomb. According to Inman, defendant failed to signal when he turned into his driveway. However, Inman also testified that it was always his intention to stop the vehicle and he had been waiting for a traffic violation to occur so that he could. Another State Police officer and a university police officer both responded to In-man’s call for backup.

When Spriegel got out of the car, he did not have his driver’s license with him. Inman then agreed to allow defendant to go unaccompanied into the house to retrieve the license and also to take his dog inside. Prior to going into the house, the defendant and the dog were thoroughly frisked. The defendant’s two companions were also frisked and remained outside.

After Spriegel returned from the house, Inman asked if he could search the car. The trooper did not at that time read Spriegel his Miranda rights, nor did he inform defendant of his right to refuse to consent.

The search of the interior of the car revealed nothing. The police then asked if they could search the trunk. Defendant consented and opened the trunk with a key. The police opened and searched various items of luggage which were in the trunk. Defendant assisted in removing these bags and unpacking the trunk of the vehicle. At one point, the defendant even offered to open a bag of dog food.

Eventually, the police found a brown paper bag in the spare tire area of the trunk. Inside this bag was a white plastic bag which in turn contained a brick of cannabis.

Inman testified that he then read defendant his Miranda rights whereupon defendant acknowledged that the cannabis was his. Defendant contends that he was not read his rights until after he had admitted ownership of the drugs. He makes no claim, however, that his confession was involuntary or that it was improperly obtained.

At the police station, in response to questioning, defendant stated that he had given his consent due to intimidation. When asked what he meant by intimidation, defendant responded “Well, you’re a police officer.” Defendant denied that Trooper Inman had used any force or threatened him in order to get him consent to the search.

Defendant brought a motion to suppress, alleging that the stop and subsequent search amounted to an illegal search and seizure. The trial court denied this motion, finding that the stop was proper under Alabama v. White (1990), 496 U.S. 325, 110 L. Ed. 2d 301, 110 S. Ct. 2412, and that defendant voluntarily consented to the search.

Defendant was convicted of unlawful possession of cannabis. He was fined $10,000 and sentenced to 24 months’ probation. He now appeals the trial court’s denial of his motion to suppress.

The sole issue on appeal is whether the trial court erred in denying the motion to suppress.

In Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d 301, 110 S. Ct. 2412, the Supreme Court addressed the issue of whether an anonymous telephone tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. The Court held that the tip standing alone was insufficient. By the time the officers made the stop, however, it had been sufficiently corroborated to furnish reasonable suspicion. The only way the officers corroborated the tip was to follow the suspect and observe that her actions correlated with those predicted by the informant.

Here, the officers had done some independent corroboration. In addition to actually observing defendant, the police had run a computer check on the license plate and on defendant’s driver’s license. The information obtained through those checks correlated with the informant’s information. Upon these facts, the information available to the police at the time of the stop provided a reasonable suspicion to make an investigatory stop. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

Defendant concedes that the initial stop was a valid Terry stop. He contends, however, that his consent to the search was not the product of his own free will, but instead was merely an acquiescence to authority brought about by the intimidating actions of the officers.

It is well established that a party may consent to a search conducted without a warrant and thus eliminate the need for probable cause and a search warrant. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) Miranda warnings need not be given in order to obtain valid consent. (People v. Smith (1984), 124 Ill. App. 3d 914, 464 N.E.2d 1206.) Moreover, ignorance of knowledge of the right to refuse to consent does not vitiate the voluntariness of the consent but is merely a factor to consider. (Smith, 124 Ill. App. 3d at 920, 464 N.E.2d at 1211.) The State bears the burden of proving by a preponderance of the evidence that the consent was freely and voluntarily given. (People v. Sesmas (1992), 227 Ill. App. 3d 1040, 591 N.E.2d 918.) The trial court’s determination of the voluntariness of consent will not be overturned unless it is manifestly erroneous. People v. Harris (1990), 199 Ill. App. 3d 1008, 557 N.E.2d 1277.

The trial court found:

“The evidence supports the conclusion that the defendant unequivocally consented to the search of the trunk and that he was not coerced into the act. Defendant cooperated with the police and helped them unpack his trunk. Defendant was allowed to go into his house unaccompanied by an officer. He was allowed to care for his animal. Defendant was asked for permission to search both the interior and trunk compartments. *** In response to the officer's request to search defendant replied ‘Well, why? Yeah, I guess so.’ His response was unequivocal and unconditional. I find it was voluntary.”

Spriegel argues that he was intimidated into consenting. He cites the presence of several armed, uniformed officers and the fact that both he and his companions were subjected to a pat-down search.

These same factors are present at many such lawful stops and do not, by themselves, give rise to such intimidation as to override a suspect’s free will and make him incapable of giving valid consent to search. The validity of the consent must be determined from the totality of the circumstances. (People v. Casazza (1991), 144 Ill. 2d 414, 581 N.E.2d 651.) Furthermore, the scope of a consensual search is objective reasonableness—what would the typical reasonable person understand by the exchange between the officer and the suspect? (Florida v. Jimeno (1991), 500 U.S. 248, 114 L. Ed. 2d 297, 111 S. Ct. 1801.) Unqualified consent to search a vehicle can include consent to search closed containers within the vehicle (Jimeno, 500 U.S. at 251-52, 114 L. Ed. 2d at 303, 111 S. Ct at 1804), as well as the vehicle’s trunk. People v. Woolery (1990), 193 Ill. App. 3d 892, 550 N.E.2d 616.

Spriegel agreed to allow the search of the vehicle. He then consented again to the search of the trunk. Spriegel alleges that he was told, not asked, to open the trunk, thus making it an involuntary search. The trial court, after hearing the evidence and observing the demeanor of the witnesses, determined that Spriegel had in fact been asked and consented. That decision is not against the manifest weight of the evidence.

Accordingly, we affirm the judgment of the McDonough County circuit court.

Affirmed.

BARRY, P.J., and HAASE, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellants, v. TELEDYNE, INC., et al., Defendants-Appellees.
    Third District
    No. 3—91—0499
    Opinion filed August 31, 1992.
    Roland W. Burris, Attorney General, of Springfield, and Marc Bernabei, State’s Attorney, of Princeton (Rosalyn B. Kaplan, Solicitor General, and Rita M. Novak, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Latham & Watkins, of Chicago (Lawrence H. Levine and Cary R. Perlman, of counsel), and Linn C. Goldsmith, of Boyle, Goldsmith, Shore & Bolin, of Hennepin, for appellee US Ecology, Inc.
    Robert M. Olian, of Sidley & Austin, of Chicago, for appellee Teledyne, Inc.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The People of the State of Illinois and the County of Bureau appeal from a summary judgment entered in the circuit court of Bureau County in favor of US Ecology, Inc., defendant, in an action to obtain an injunction ordering removal of certain hazardous wastes from two disposal sites near Sheffield, Illinois. The trial court ruled that an administrative order of the United States Environmental Protection Agency (USEPA) directing US Ecology to contain and treat the waste contaminants in place conflicts with the remedy sought by plaintiffs and is, therefore, barred by the doctrine of Federal preemption under the supremacy clause of the United States Constitution (U.S. Const., art. VI). We affirm.

Named as defendants are US Ecology, owner of the sites in question, and its predecessor, Nuclear Engineering Company. US Ecology is a subsidiary of Teledyne Corporation, another defendant, which incorporated American Ecology Corporation, also named defendant, for the purpose of holding the shares of US Ecology and another subsidiary not here involved. US Ecology is the responding party defendant in this litigation.

The two hazardous waste disposal sites with which we are concerned were first used by defendants for the disposal of chemical wastes in 1967. One site, known as the “Old Site,” consists of approximately 5.8 acres and has a total of six disposal trenches which were operated from 1967 to 1974. The second site, known as the “New Site,” covers about 40 acres and has a total of 19 disposal trenches which were used from 1974 to 1983. Both sites received all necessary permits from the State of Illinois and strictly complied with all applicable Federal and State regulations and statutes. A third site, located south of the Old Site, is a low-level radioactive waste disposal site owned by the State of Illinois. The third site is not involved in this law suit.

Over a period of several years, hazardous chemical wastes have migrated from both the Old Site and the New Site. The principal release of chemicals is from the Old Site, which has contaminated a ground water plume extending over approximately 23 acres and affecting 24 million to 30 million gallons of groundwater. Among the chemicals identified as deposited at the Old Site are arsenic, selenium, pesticides, insecticides, arsanilic acid, curare, and phenol waste. The main plume from the New Site covers approximately one acre and may affect 300,000 to 500,000 gallons of groundwater. Additional smaller releases have also been detected south of trench 18EWC of the New Site and north of the New Site. The wastes at this site include benzene, pesticides, PCBs, pentachlorophenol, cyanide compounds, paint sludge containing lead and chromium pigments, waste phenol, and others.

The" public has no access to the disposal sites and has not been exposed to contaminants, either by direct contact or through drinking water. However, studies indicate that continued releases and migration could eventually reach sources of drinking water if not contained.

In 1982 when groundwater monitoring indicated migration of contaminants, appropriate reports were made to the Illinois Environmental Protection Agency (IEPA), which administers the regulation of hazardous waste in Illinois pursuant to the Federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. §6901 et seq. (1988)) and a delegation of authority from the USEPA. After study and negotiation, US Ecology agreed in 1985 to an administrative consent order issued by the USEPA pursuant to section 3008(h) of RCRA (42 U.S.C. §6928(h) (1988)), which requires an investigation of the Sheffield facility, a review of alternative remedies, and the selection and implementation of the most appropriate remedy to protect human health and the environment, all at the expense of US Ecology.

The field investigations were conducted by an independent consultant, Science Applications International Corporation (SAIC), pursuant to the requirements and direction of the USEPA, including more than 500 wells and borings. A draft remedial investigation report was prepared in 1987, and after another round of extensive testing, a final remedial investigation report was approved by USEPA in April of 1989. During 1989 feasibility study reports were submitted to USEPA evaluating alternative remedial technologies to restore the groundwater quality so as to eliminate any existing or potential risks to the environment or public health. Among the alternatives considered and rejected was the excavation of approximately 8,500,000 cubic feet of soil and waste materials for on-site incineration at the Old Site or for transportation to other locations.

The final Federal order was issued in October of 1990. The USEPA found that soil and waste removal would be dangerous, unnecessary, and impractical, and instead required US Ecology to develop contaminant source control and groundwater remediation by implementing specific corrective measures. Those measures include placement of slurry walls around certain trenches and repair of other existing trench barrier walls to contain further releases; placing an RCRA required cap on the Old Site and modifying the existing cap on the New Site to prevent surface water from percolating through trenches; placement of groundwater pumping wells in some locations to lower the level of groundwater below the level of contamination and in other locations to remove contaminated groundwater for treatment; and installation of additional groundwater monitoring wells and implementation of a groundwater monitoring program. In addition, the USEPA directed US Ecology to comply with Illinois EPA regulations that ensure continuous oversight by Illinois agencies.

. The order required US Ecology to begin implementation within 30 business days of October 19, 1990. According to USEPA documents, it will take US Ecology 18 to 24 months to design and install components of the plan, and it will take 30 years for full implementation of the clean up measures.

Contemporaneously with the administrative activity of the USEPA, plaintiffs have pursued actions against defendants in the circuit court of Bureau County. In 1980 a complaint was filed by then Attorney General William J. Scott on behalf of the People of the State of Illinois alleging violations of certain statutes and creation of a public nuisance. The complaint sought an injunction to require US Ecology to stop accepting waste for disposal at the Sheffield facility and to exhume the wastes already deposited. Subsequently, the County of Bureau was granted leave to intervene. In 1983 US Ecology voluntarily ceased disposal of hazardous wastes at the Sheffield site.

In 1985 after the USEPA issued its consent order requiring investigation and study of remedial requirements and feasibility of alternatives, US Ecology sought dismissal of the complaint on grounds that the administrative order issued pursuant to Federal law preempted plaintiffs’ action brought under Illinois statutory and nuisance law. The dismissal motion was denied because, in the absence of a Federal determination of appropriate remedial action, no direct conflict between Federal and State remedies had yet occurred. In 1987 plaintiffs were ordered, pursuant to defendants’ discovery requests, to provide information supporting their claim that exhumation of the Sheffield disposal site was necessary, feasible and safe. When plaintiffs failed to respond, the action was dismissed for want of prosecution in March of 1988.

In July of 1988 plaintiffs filed the present action, again seeking an injunction to require defendants “to remove all chemical wastes deposited in the old and new chemical sites, together with any groundwater and soil already contaminated, and to treat such materials to render them harmless.” Defendants responded with an answer setting forth 17 affirmative defenses, including Federal preemption.

Following the October 1990 USEPA report which rejected removal of the contaminated waste material and instead required containment in place, US Ecology filed a motion for summary judgment based on Federal preemption. After briefing and oral arguments, on June 6, 1991, the trial court found that an actual conflict existed between the remedies sought by plaintiffs and the remedial requirements imposed by USEPA. In announcing his decision, Judge Alexander Bower stated, “You can’t keep this material buried and dig it up at the same time.” Applying the doctrine of Federal preemption, the court held that the Federal administrative order must prevail. Judge Bower noted that the only evidence in this case was that developed by USEPA. Thus, plaintiffs were, in effect, asking the court to review the same studies and reports as were reviewed by the USEPA and to reach the opposite result. Summary judgment was granted, and plaintiffs’ cause was dismissed.

The sole issue on appeal is whether the trial court correctly ruled that plaintiffs’ action has been preempted by Federal law. The United States Supreme Court has clearly spelled out the doctrine of Federal preemption as follows:

“[SJtate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. [Citations.] If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law [citation] or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress [citation].” Silkwood, v. Kerr-McGee Corp. (1984), 464 U.S. 238, 248, 78 L. Ed. 2d 443, 452, 104 S. Ct. 615, 621.

The parties to this appeal agree that Congress has not intended to occupy exclusively the field of solid hazardous waste disposal. To the contrary, section 1002 of RCRA (42 U.S.C. §6901(a)(4) (1988)) recognizes that “the collection and disposal of solid wastes should continue to be primarily the function of the State, regional, and local agencies,” while also acknowledging that the problems of waste disposal have become national in scope and “necessitate Federal action through financial and technical assistance and *** to provide for proper and economical solid waste disposal practices.” Congress stated as one of its objectives in enacting the RCRA the establishment of “a cooperative effort among the Federal, State, and local governments and private enterprise in order to recover valuable materials and energy from solid waste.” (42 U.S.C. §6902(11) (1988).) From these statements, Congress made explicit its intention not to occupy the field of hazardous waste disposal.

If Federal preemption is applicable to this case, it is because of an actual conflict between the remedies ordered for the Sheffield site by the USEPA and the remedy sought by plaintiffs. In Brown v. Kerr-McGee Chemical Corp. (7th Cir. 1985), 767 F.2d 1234, the plaintiffs, who were adjacent property owners, brought an action requesting an injunction under State law to require removal of nonradioactive toxic wastes from a storage site owned by defendant. Because the nonradioactive materials were inseparable from radioactive materials at the site, the court ruled that Federal law under the Atomic Energy Act preempted plaintiffs’ request for injunctive relief under Illinois law.

The applicable Federal law in Brown v. Kerr-McGee Chemical Corp. gave exclusive authority to the Nuclear Regulatory Commission (NRC) to regulate radiation hazards, and the NRC had received a staff recommendation that on-site encapsulation would be the best disposal alternative for the material in question. The court of appeals stated:

“Although the Commission [NRC] has not yet decided which alternative to license, an injunction ordering Kerr-McGee to remove the byproduct material from the West Chicago site would, in effect, substitute the judgment of the district court for that of the NRC as to whether on-site encapsulation is the best method of storing this byproduct material. *** Such state law remedies *** interfere with the NRC’s ability to choose the method of disposal that, in light of radiation, non-radiation, and economic considerations, is most appropriate. We therefore hold that plaintiffs’ request for an injunction ordering the Kerr-McGee wastes moved elsewhere is preempted because, if granted, the injunction would stand ‘as an obstacle to the accomplishment of the full purposes and objectives’ of federal regulation of radiation hazards.” 767 F.2d at 1242, quoting Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 248, 78 L. Ed. 2d 443, 452, 107 S. Ct. 615, 621.

Also instructive is a recent decision in United States v. Akzo Coatings of America, Inc. (6th Cir. 1991), 949 F.2d 1409, where the USEPA entered a consent decree recommending a soil flushing process to remedy soil contamination at a 110-acre Michigan site that had been declared a toxic substance emergency by Michigan authorities. As provided by Federal statute, the consent decree was filed in Federal court. Michigan intervened in the court proceeding and sought removal and incineration of the contaminated soil.

In the Akzo case, the USEPA acted under authority of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) (42 U.S.C. §9601 et seq. (1988)), which expressly limited State involvement in clean up proceedings. The statutory provisions of CERCLA and SARA differ substantially from those of RCRA involved in the case at bar. However, of particular interest here is the court’s analysis which distinguished between a preemption by Congressional action and preemption by the express terms of a consent decree which preempted alternative State remedies. The court noted that Michigan’s only remedy under CERCLA was to claim that the consent decree did not incorporate more stringent State environmental standards. There it was held that Michigan’s request for the alternative remedy of removal and incineration was properly dismissed upon a failure to show that the USEPA remedy would not achieve State standards.

Plaintiffs have cited United States v. Akzo Coatings of America, Inc. for the proposition that a consent decree does not have the force of Federal law until it has been filed in Federal court and, therefore, that a finding of actual conflict was premature in the case at bar. Plaintiffs ignore the fact that the procedure outlined in CERCLA requires such a filing and spells out in detail the State involvement in the process of dealing with major pollution sources. No such procedure is provided in RCRA.

Furthermore, in the case before us a State law injunction requiring removal of vast quantities of contaminated soil would be “an obstacle to the accomplishment of the full purposes and objectives” of Federal law embodied in RCRA and implemented by the USEPA in that it would severely restrict the remedial options available to the Federal agency as in Brown v. Kerr-McGee Chemical Corp. The same conclusion was reached in Ensco, Inc. v. Dumas (8th Cir. 1986), 807 F.2d 743, where a county ordinance prohibiting storage, treatment, or disposal of hazardous waste in county was held to be preempted by RCRA because of actual conflict with Federal law. Accordingly, we hold that plaintiffs’ request for an injunction ordering removal of the hazardous wastes at the Sheffield site is preempted by the orders of the USEPA pursuant to RCRA.

Plaintiffs also claim that Congress intended to preserve traditional remedies under State statutes and common law by virtue of an exemption in RCRA which provides: “Nothing in this section shall restrict any right which any person *** may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste ***.” (42 U.S.C. §6972(f) (1988).) The section of RCRA to which this exemption refers is the “citizen suit” provision common to many Federal environmental enactments. (International Paper Co. v. Ouellette (1987), 479 U.S. 481, 93 L. Ed. 2d 883, 107 S. Ct. 805.) Plaintiffs here are governmental corporations, not private citizens, and, we conclude, have no preemption exemption under this clause.

Finally, plaintiffs argue that section 3009 of RCRA (42 U.S.C. §6929 (1988)) exempts their cause of action from Federal preemption. Section 3009 provides in part:

“Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations.” (42 U.S.C. §6929 (1988).)

Plaintiffs contend that a court order requiring the removal of hazardous waste in this case would be a more stringent requirement within the meaning of section 3009 than the USEPA requirement of containment and treatment in place.

In those cases where the savings clause provision of section 3009 has been considered, it has been construed to authorize local adoption of more stringent environmental standards than the USEPA but not to allow local governments to directly subvert RCRA and USEPA decisions by outright bans on activities Federal authorities considered safe. (E.g., Ensco, Inc. v. Dumas (8th Cir. 1986), 807 F.2d 743; Ogden Environmental Services v. City of San Diego (S.D. Cal. 1988), 687 F. Supp. 1436.) Here plaintiffs do not claim that the environmental standards which the USEPA is requiring US Ecology to attain are less stringent than Illinois standards. Instead, plaintiffs dispute the effectiveness of the remedies chosen by the USEPA to protect human health and the environment and disagree that removal and transportation of the wastes would be too dangerous.

We construe the savings clause in section 3009 as allowing local governments to establish more stringent requirements, i.e., environmental standards, than Federal regulations. The savings clause does not allow local governments to demand different remedies than those ordered by the USEPA where there is no challenge to the environmental standards to be attained. We think it significant that the State of Illinois, via the Illinois EPA, has contributed valuable suggestions and comments in the remedy selection process and will have further opportunity to oversee the implementation of the remediation activities. Thus, the State will not be denied its appropriate role in protecting the health of its citizens. We hold that section 3009 does not exempt this cause of action from Federal preemption.

For the reasons stated, judgment of the circuit court of Bureau County is affirmed.

Affirmed.

McCUSKEY and GORMAN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD FUHRMAN, Defendant-Appellant.
    Third District
    No. 3—91—0490
    Opinion filed September 1, 1992.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Richard Fuhrman, was charged on August 29, 1989, with residential burglary. (Ill. Rev. Stat. 1991, ch. 38, par. 1—3(a).) On December 8,-1989, Fuhrman was found to be unfit to stand trial and was placed in the Department of Mental Health and Developmental Disabilities (the Department) for treatment.

Fuhrman was later reexamined and, on January 18, 1991, he was still found to be unfit. The same day, Fuhrman filed a motion for a discharge hearing. Thereafter, the court appointed Dr. Daniel J. Cu-neo, a clinical psychologist, to determine Fuhrman’s sanity at the time of the offense. In his report, Cuneo opined that Fuhrman was legally sane at the time of the offense but was mentally ill. As a consequence, Fuhrman would qualify for a guilty-but-mentally-ill plea.

During the subsequent June 28, 1991, discharge hearing, Fuhr-man objected to the introduction of a statement he had previously made. Fuhrman claimed that the statement was made at a time when he had been found unfit to stand trial. The trial court treated Fuhr-man’s objection as a motion to suppress and refused to conduct a suppression hearing. The discharge hearing continued, and the trial court found that the State could meet its burden of proof if the case went to trial. Accordingly, the court remanded Fuhrman to the Department for further treatment.

Fuhrman appeals the trial court’s refusal to conduct a hearing on his motion to suppress. We reverse and remand so that the trial court can conduct a suppression hearing.

At the June 28, 1991, discharge hearing, Susan Berk testified that she left her home on August 1, 1989, and noticed a broken window when she returned around 7:45 a.m. the next day. Also, the back door, which had been locked the day before, was open. Inside, Berk found many items of her personal property had either been misplaced or were missing. Also, she discovered a shotgun had been taken from her garage. Following this discovery, Berk called the police. Later that day, she saw some of her property inside a house two doors down the street.

Deputy Christopher Canupp of the Will County sheriff’s department testified that during the investigation of this incident, he met with the owner of the house where Berk’s property was discovered. The owner allowed Deputy Canupp to enter his garage. Inside the garage, Canupp found Fuhrman hiding. Berk was then brought to the scene, and she identified as hers a shotgun found in the garage. The owner explained that he had allowed Fuhrman and another man to stay in the garage.

Will County Sheriff’s Investigator James Creed was called to testify for the State. When the prosecutor began to question Creed regarding a statement Fuhrman had made, defense counsel objected. Fuhrman’s counsel argued that the statement could not be used because the trial court had previously found Fuhrman was unfit to stand trial. The prosecutor stated he had no objection to immediately conducting a suppression hearing. The trial court treated the objection as a motion to suppress, but found the motion was untimely. The trial court based its finding on the fact that Fuhrman had been declared unfit to stand trial well before the discharge hearing, and also because the defense counsel admitted that Fuhrman’s statement was contained in discovery materials filed in 1989.

Creed testified that he had advised Fuhrman of his constitutional rights. Fuhrman indicated that he understood them, signed a waiver, and agreed to talk. Fuhrman told Creed that he and Jim Hunt had burglarized the Berk residence. Fuhrman said he used a knife to break a window and enter the house, while Hunt entered through the garage. Fuhrman said he took some food and a clock. Hunt also entered the house and took a television set. Creed stated that Fuhrman seemed to be coherent when he made the statement. However, Creed did testify that Fuhrman’s speech was slurred and he appeared as if he had been drinking. Creed indicated, on cross-examination, that he did not smell alcohol on Fuhrman.

At the close of the discharge hearing, the trial court found that the State would be able to meet its burden of proof if the case went to trial. Accordingly, the court remanded Fuhrman to the Department for further treatment.

On appeal, Fuhrman argues the trial court erred when it refused to conduct a suppression hearing. Fuhrman interprets section 114—11 of the Code of Criminal Procedure of 1963 to require that a motion to suppress must be made before the beginning of a trial. (Ill. Rev. Stat. 1991, ch. 38, pars. 114—11(a), (g).) Fuhrman argues the motion to suppress was timely since it was made during a discharge hearing and before a criminal trial had commenced. We agree.

Citing People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837, the State first argues that Fuhrman has waived this issue. We disagree. The State notes the basis for the defense counsel’s objection was because Fuhrman had been found unfit to stand trial. The State specifically argues that Fuhrman’s counsel had failed to claim that the confession was not voluntary. However, while Fuhrman’s defense counsel might have chosen her words more carefully, we clearly find from the record that the objection was made based on the voluntariness of Fuhrman’s confession. Moreover, both the prosecutor and the trial court treated Fuhrman’s objection as a motion to suppress. Therefore, we find the issue has been preserved for appeal.

In response to the merits of Fuhrman’s argument, the State contends that a discharge hearing should be considered the same as a trial for purposes of section 114—11. We disagree.

It is fundamental that a court, when interpreting a statute, is to ascertain and give effect to the legislative intent by according the statutory language its plain and ordinary meaning. (People v. Anderson (1988), 167 Ill. App. 3d 308, 521 N.E.2d 148.) Section 114-11 clearly requires that a motion to suppress must be made prior to a trial. As the State points out in its brief, there are similarities between a trial and a discharge hearing. However, we note that, depending upon the result of the discharge hearing, Fuhrman may later be subjected to a trial for whatever crime he was charged with. (Ill. Rev. Stat. 1991, ch. 38, pars. 104—25(a), (e), (g)(l).) We therefore interpret section 114—11 to mean that a discharge hearing is not the same procedure as a trial. (People v. Polachek (1984), 128 Ill. App. 3d 200, 205, 470 N.E.2d 584, 587.) Accordingly, Fuhrman’s motion to suppress was made prior to trial as required by the statute.

Furthermore, we note that the prosecutor did not object to proceeding with the suppression hearing. Additionally, the two police officers who witnessed Fuhrman’s confession, Deputies Creed and Canupp, were both present at the discharge hearing. Under these circumstances, it is difficult to discern any resulting prejudice to the State. On the other hand, there was great prejudice to Fuhrman by the court’s refusal to allow a suppression hearing. In our view, under all the circumstances, it would have been neither unfair, nor inconvenient, for the trial court to have conducted a suppression hearing. Accordingly, we find the trial court erred when it refused to allow the suppression hearing.

Finally, we find without merit the State’s argument that even if the motion to suppress had been heard and granted, the remaining evidence presented at the discharge hearing would still prove Fuhrman guilty of residential burglary beyond a reasonable doubt. Therefore, the State argues that there is no need for another discharge hearing.

First, we note that in his decision, the trial judge specifically referred to the confession in finding that the State had met its burden of proof. Moreover, without the confession, the evidence presented did not preclude that someone else could have been involved in the burglary. We believe that the evidence resulting from the use of Fuhr-man’s confession was a substantial factor in the trial court’s determination. Accordingly, this cause is remanded so the circuit court of Will County can conduct a suppression hearing.

For the reasons indicated, the judgment of the circuit court of Will County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINTON ELLIS, Defendant-Appellant.
    Third District
    No. 3—91—0370
    Opinion filed September 2, 1992.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant, Clinton Ellis, was convicted of unlawful possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 951/2, par. 4—103(a)(l)). On appeal, defendant contends that the prosecutor committed reversible error by making improper and prejudicial remarks during closing argument. Because we find the improper closing argument did not constitute plain error, we affirm.

The following is a summary of the evidence presented at trial. Two Joliet police officers were on patrol together on the morning of November 1, 1989. At about 4 a.m., they spotted a 1988 Oldsmobile with handicap license plate number W36698 at an intersection. The officers had received a dispatch two hours earlier which indicated that the vehicle had been stolen. They stopped the car and found two men inside. The officers identified the defendant as the driver of the car. After arresting the defendant and the passenger, the officers noticed that the left side of the steering column had been tom apart or “pealed” so that the car could be started without its key. There were pieces of the steering column on the floor of the car.

The owner of the Oldsmobile testified that the car had been stolen on the night of October 31. Defendant testified that shortly after midnight on November 1, he was approached by his friend Larry Williams, the man found in the car with the defendant by the police officers. Defendant stated that he went for a ride in Williams’ car. Defendant testified that he asked Williams if he could drive because Williams was intoxicated. Williams agreed and defendant drove the car until he was stopped by the police. Williams told the defendant that the car belonged to his sister. The defendant stated that he first learned that the car was stolen when the police arrested him.

In rebuttal, the State introduced certified copies of defendant’s prior convictions for theft and an offense related to motor vehicles. During closing argument, the prosecutor made the following remarks:

“Now, ladies and gentlemen, you analyze Mr. Ellis’ testimony in the same light. The State’s proven everything except now analyze Mr. Ellis’. The defendant, does he have an interest or bias in this case? He certainly does, ladies and gentlemen. He does not want to be convicted of this crime. That’s his interest and bias here. Would he take the stand and lie?
MS. BLOCK [DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
MR. ZACK [PROSECUTOR]: Would he take the stand and lie, ladies and gentlemen, that’s for you to decide.”

The prosecutor returned to this theme in rebuttal when he stated:

“And one other thing [the defense attorney] brought up. This impacts on Mr. Ellis’ life. You’re right, it does. And that’s, ladies and gentlemen, you’re going to receive the instruction on the bias and prejudice that this has upon an individual. He has an interest here, ladies and gentlemen. He certainly does. I agree with [the defense attorney] one hundred percent. He has an interest in it. He wants you to find him not guilty. That’s his interest. And that interest you have to use in judging his credibility again.
MS. BLOCK: Objection.
THE COURT: Overruled.
MR. ZACK: You use the interest of the defendant in this case to judge his credibility. *** You determine whether you’re going to believe him. Does he know the car was stolen? Well, ladies and gentlemen, what else is he going to state if he takes the stand. No, I didn’t know it was stolen. That’s his only out here, ladies and gentlemen. That’s the only way he’s going to get out of this situation.
MS. BLOCK: Objection.
THE COURT: Overruled.”

The jury found the defendant guilty and the court sentenced him to five years in prison.

On appeal, defendant contends that the prosecutor’s comments in closing argument were improper because they implied that a defendant is presumed to lie simply because of his status as a defendant. Although defendant objected to the alleged improper comments at trial, he failed to raise this issue in his post-trial motion. It is well established that to preserve an issue for review both a trial objection and a written post-trial motion raising the issue are required. (People v. Burrows (1992), 148 Ill. 2d 196, 592 N.E.2d 997.) Therefore, we can only reverse if the comments constitute plain error (134 Ill. 2d R. 615(a)). Plain error is defined as error of such magnitude that it denied defendant a fair trial, or error in a trial where the evidence is closely balanced. (People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.) Moreover, improper prosecutorial remarks will not justify setting aside a conviction unless they resulted in substantial prejudice and were a material factor in the conviction. People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.

While a prosecutor may properly comment on the credibility of any witness (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481), a prosecutor may not argue that a defendant who testifies has an interest in avoiding a conviction. This court recently voiced its disapproval of this tactic in People v. Watts (1992), 225 Ill. App. 3d 604, 588 N.E.2d 405. In Watts, we held that such comments are improper because they imply that a defendant has a motive to lie simply because of his status as a defendant. A defendant has no motive to lie if he did not commit the crime charged. By arguing that the defendant has a motive to lie, the State is also implying that the defendant committed the crime. Such an implication contravenes the fundamental principle that a defendant is presumed innocent until proven guilty. The prosecutor’s comments were indeed improper.

We find, however, that these comments did not rise to the level of plain error. The evidence in this case was not closely balanced. Defendant was found driving the car only a few hours after it was stolen. The steering column was severely damaged, and pieces of it were on the floor of the car. The car was apparently operating without keys at the time it was stopped by the police officers. In light of this evidence, defendant’s claim that he did not know the car was stolen is certainly suspect. We cannot say that the outcome of the trial would have been different if the improper comments had not been made. (People v. Moman (1990), 201 Ill. App. 3d 293, 558 N.E.2d 1231.) The comments therefore did not deprive the defendant of a fair trial. However, we again stress our disapproval of the tactic employed by the State in this case, and we reiterate the caveat set out in Watts that under different circumstances it could lead to reversible error.

Defendant also complains of another allegedly improper comment made by the prosecutor during closing argument. The prosecutor stated:

“Ladies and gentlemen, there’s only person [sic] in this courtroom that was seated in that car with the column pealed [sic] back and that’s Clinton Ellis.”

Defendant argues that this comment was improper because: (1) it implied that the prosecutor had evidence of the defendant’s guilt that was not produced at trial, and (2) it implied that he was being prosecuted only because he was in fact guilty of the offense. We fail to see how the comment makes either implication. The prosecutor was simply arguing inferences drawn from the facts.

For the reasons stated above, the judgment of the circuit court of Will County is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH SCHMIDT, Defendant-Appellant.
    Third District
    No. 3—91—0579
    Opinion filed September 4, 1992.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant was convicted of aggravated criminal sexual assault and criminal sexual assault. On appeal, he claims he was denied his right to a speedy trial and that the second conviction was improper under the lesser included offense rule. We find that defendant was denied his right to a speedy trial. We therefore reverse the judgment of the circuit court and vacate the convictions.

Ralph Schmidt was arrested on August 10, 1989. He was charged in a three-count indictment with aggravated criminal sexual assault, criminal sexual assault, and attempted aggravated criminal sexual assault.

On November 6, 1989, defendant asked for and was granted a continuance until November 29, 1989. On that date, the cause was continued until December 4, 1989, again at defendant’s request. On December 4, the court appointed a psychiatrist to examine defendant to determine defendant’s fitness to stand trial. Defendant had remained in continuous custody throughout this entire period.

The court determined on January 22, 1990, that Schmidt was not fit to stand trial and remanded him to the custody of the Department of Mental Health. The case was continued, with another fitness hearing to be held on August 15,1990.

At that hearing, both parties stipulated that Schmidt was now fit to stand trial. The court set a trial date of October 29,1990.

On October 29, the trial judge and the attorneys discussed the possibility that the 120-day speedy trial period might have run. Neither the prosecutor nor the defense counsel was sure exactly how much time was attributable to each side.

The defendant filed a motion to dismiss on November 1. He alleged that from the time of his arrest on August 10, 1989, to his first motion for a continuance on November 6, 1989, was a total of 88 days which were not attributable to him. The motion then stated that from August 15, 1990, when he was found fit to stand trial, until October 29, was another 75 days which were also not attributable to defendant. The two periods totaled 163 days, which is in excess of the statutory 120-day limit. Ill. Rev. Stat. 1991, ch. 38, par. 103—5(a).

The trial court made no ruling at that time but proceeded with the bench trial. At the conclusion of the State’s case in chief, the defendant renewed his speedy trial claim. The trial court then ordered that a transcript be prepared of the August 15 hearing. That hearing had been held before a different judge.

Defendant presented his case in chief on March 7, 1991. Closing arguments were held May 15 at which time defendant again raised the speedy trial issue. Ultimately, the defendant was found guilty but mentally ill on all charges. When reminded by the defendant of the speedy trial issue, the judge responded “Well, we never have really had arguments on that up to this point. You can argue that again if you want as part of your post-trial motion.”

Defendant did include that claim as part of his post-trial motion. The court denied generally the motion without making any specific findings. The court then entered judgments on aggravated criminal sexual assault and criminal sexual assault and sentenced defendant to concurrent prison terms of 18 and 10 years, respectively.

The controlling issue on appeal is whether defendant was denied his right to a speedy trial, as guaranteed by the United States Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill. Const. 1970, art. I, §8). These provisions have been implemented statutorily by section 103—5 of the Code of Criminal Procedure of 1963, which provides, in pertinent part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104—13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114—4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.
* * *
(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of the expiration of the delay the said period shall continue at the point at which it was suspended.” Ill. Rev. Stat. 1991, ch. 38, pars. 103—5(a), (f).

The defendant was held for 88 days, then requested a continuance. He concedes that his request for a continuance started the tolling of the statutory period. He also concedes that the period is suspended during the time which he was unfit to stand trial. After he was found fit to stand trial, he was held another 75 days until the trial actually started. He argues that the period recommenced running at the point he was found fit. It is defendant’s contention that his conviction must be reversed because he was not tried within the 120-day period as required by the statute. The remedy for failure to comply with this requirement is dismissal. (Ill. Rev. Stat. 1991, ch. 38, par. 114—l(a)(l).) Dismissal is mandatory, not discretionary, when the period has been exceeded and the delay is not attributable to the defendant. People v. Jones (1986), 145 Ill. App. 3d 804, 495 N.E.2d 1330; People v. Wiegand (1989), 183 Ill. App. 3d 216, 538 N.E.2d 1374.

The leading case on this issue is People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872. In Reimolds, the supreme court held:

“Under section 103—5, it is the duty of the State to bring a defendant to trial within the statutory period. [Citations.] However, on a motion to dismiss, the defendant has the burden of affirmatively establishing the violation of his right to a speedy trial [citation], and where a delay is attributable to the defendant, the statutory period is tolled. [Citations.]
A delay is held to be occasioned by the defendant when the defendant’s act in fact caused or contributed to the delay. [Citations.] This affirmative act may be manifested as an express agreement to a continuance on the record. [Citation.] Delay will not, however, be presumed to be attributable to the defendant on the basis of a silent record. [Citations.] Furthermore, mere silence on the part of the defendant or failure to object to the State’s request for a delay does not amount to an agreement or waiver of the right to a speedy trial by the defendant. [Citations.]” Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875.

The State relies on this court’s opinion in People v. Jones (1991), 215 Ill. App. 3d 652, 575 N.E.2d 561. In Jones, we held that the defendant had not established a speedy trial violation. In question was a 76-day period following a fitness examination and the date set for trial. The trial court noted that defendant’s disruptive conduct had undermined the orderly proceeding of the cause. Accordingly, the court specifically held that the entire 76-day period was a delay occasioned by the defendant. Under those facts, this court was unable to find that the trial court had abused its discretion in denying defendant’s motion to dismiss.

A similar result was reached in People v. Cabrera (1989), 188 Ill. App. 3d 369, 544 N.E.2d 439. There, the defendant was given three choices of trial dates, one of which was within the 120-day period for speedy trial. Defense counsel indicated a problem with one of the three dates, whereupon the court selected an even later date, without objection. Based on that, this court found that the defendant had acquiesced in the delay.

Both Cabrera and Jones are distinguishable. In Cabrera, the defendant agreed to have the case set in the regular course of the court’s docket and was given the option of a trial date within the statutory period. This court held that such conduct amounted to an acquiescence to the date outside the period. In Jones, the defendant’s dilatory conduct directly contributed to the delay.

Here, neither such element is present. There is no dispute that the initial 88 days are attributable to the State. There is also no doubt that the defendant’s request for continuance and then his fitness evaluation are delays attributable to the defendant and that the 120-day period was suspended during that time. (Ill. Rev. Stat. 1991, ch. 38, par. 103—5(a).) No one could reasonably expect the court to set a trial date while the defendant is either undergoing a fitness exam or while the defendant is adjudged unfit, nor does the statute require the court to do so.

On August 15, 1990, Schmidt was found fit to stand trial and stated that he was ready to proceed with the resolution of the charges. From that point until trial was another 75 days.

The State agrees that the period recommences at the point defendant is found fit to stand trial. The State, however, argues that defendant’s failure to object amounts to a waiver of his right to a speedy trial.

That position was directly rejected by the supreme court. (Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875.) It is the duty of the State to bring the defendant to trial within the statutory period. (Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875.) The defendant has no duty to advise the court that the date set for trial presents a speedy trial problem. People v. Smith (1991), 207 Ill. App. 3d 1072, 566 N.E.2d 797.

In addition, the trial court did not expressly find that the 75-day period was attributable to the defendant. While this court must give deference to findings by a trial court, no such deference can be afforded when there is no finding. Delay will not be presumed to be attributable to the defendant on the basis of a silent record. Reimolds, 92 Ill. 2d at 106, 440 N.E.2d at 875; People v. Jump (1984), 127 Ill. App. 3d 440, 468 N.E.2d 1278.

Moreover, responsibility for delays caused by crowded dockets generally rests with the State and not the defendant. (People v. Wiegand (1989), 183 Ill. App. 3d 216, 538 N.E.2d 1374.) The defendant, however, must share the blame for a delay where he causes or concurs in the rescheduling. Here, the defendant’s requests for a continuance and a fitness evaluation are not dilatory tactics which would evidence an acquiescence in further delays. The record does not show an affirmative act which could attribute any of the 163 days to Schmidt. Instead, the record shows that defendant actively pursued his speedy trial claim.

The legislature foresaw that a delay which occurred near the end of the term could give rise to difficulties. Thus, section 103—5 has a provision whereby the State can request an additional 21 days when delay is occasioned by the defendant within 21 days of the end of the speedy trial period. (Ill. Rev. Stat. 1991, ch. 38, par. 103—5(f).) However, the State did not request such an extension nor would one have been warranted since there was no delay attributable to defendant during the final 21 days of the term.

Schmidt has adequately shown the elements of a violation of his right to a speedy trial; he was incarcerated, gave no bail, was not tried within 120 days, and was not accountable for delay that took the case outside the term. (People v. Williams (1985), 137 Ill. App. 3d 816, 484 N.E.2d 790.) We therefore find that the trial court was in error in denying defendant’s motion to dismiss. Accordingly, we reverse the judgment of the circuit court and vacate the convictions.

Because of our ruling on this issue, we need not address the defendant’s contention that entry of judgment on both aggravated criminal sexual assault and criminal sexual assault was improper under the lesser included offense rule, a point which the State concedes.

The judgment of the Peoria County circuit court is reversed.

Reversed.

STOUDER and SLATER, JJ., concur.