author: JUSTICE INGLIS

text:
    FIRST NATIONAL BANK OF ELGIN, Trustee, et al., Plaintiffs-Appellees, v. RUTH DUSOLD, Defendant-Appellant.
    Second District
    No. 2—88—0687
    Opinion filed March 7, 1989.

      Marsha J. Caporaso, of Sleepy Hollow, for appellant.
    Leo M. Flanagan, Jr., and Karen J. Johnson, both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, First National Bank of Elgin as trustee under trust No. 3014 and Robert Litschewski, owners of residential real estate, brought this action for damages to the residence and various appliances and fixtures therein in breach of a warranty given by defendant, Ruth Dusold. Defendant filed a countercomplaint for alleged misrepresentation and fraud.

The trial court, without a jury, entered judgment for plaintiffs on the countercomplaint and judgment for plaintiffs on their complaint in the sum of $3,557.97 plus costs of $90.

As the parties are familiar with the history of this case and the testimony and exhibits admitted at trial, we need only set forth that evidence pertinent to resolving each of the issues raised.

In 1982, the parties entered into a contract for deed wherein plaintiffs agreed to sell and defendant agreed to buy 920 Rosewood, Carpentersville, by installment purchase. Defendant sued plaintiffs for failure to disclose defects. Plaintiffs filed a separate suit for failure of defendant to pay the installments due on the contract.

Plaintiffs and defendant entered into a settlement agreement on September 15, 1986. The agreement provided, in part, that defendant would quitclaim her interest in the premises to plaintiff Robert Lits-chewski. Defendant also warranted as follows:

“That all equipment and appliances to be conveyed, including but not limited to the following, are in operating condition (except that equipment relating to the swimming pool): all mechanical equipment; heating and cooling equipment, water heaters and softeners, septic, plumbing and electrical systems; kitchen equipment remaining with the premises, and any miscellaneous mechanical personal property. Dusold shall not be liable for any damages attributable or caused by a leaking roof, or electrical problems occasioned by water leaking through the roof.”

The agreement further provided that defendant would move from the premises by October 1, 1986. The parties agreed to dismiss their respective lawsuits, and they were dismissed.

On October 31, 1986, plaintiffs filed this suit to recover for alleged damages to the premises. Plaintiffs’ second amended complaint, upon which plaintiffs proceeded to trial, specifically alleged that defendant breached the warranties of the settlement agreement.

At trial, Litschewski testified that certain defects existed in the premises at the time he took possession and for which he incurred expenses in making repairs and replacing certain items. Litschewski testified that he took possession of the premises on October 1, 1986, and claimed damages: (1) two locks were broken, as well as the lock on the sliding glass door; (2) the garage door was separated from the framing by eight inches; (3) approximately a dozen tiles were missing in the master bath; (4) the shower door was hanging; (5) the faucets in the bathroom were leaking; (6) the medicine cabinet was hanging; (7) the linoleum was torn up in the bathroom; (8) the refrigerator would not work, was badly scratched, filthy, smelled, and “sounded like a John Deere tractor”; (9) two of the four units on the cook top did not work, and the top was badly scratched and stained; (10) the top shelf and diffuser from the dishwasher were missing, and the prongs on the bottom shelf were bent; (11) the fan on the range hood did not operate; (12) the hinges on the oven doors were bent, the oven doors would not close, and heat was coming out of the oven; and (13) the toilet tank was cracked, the linoleum was torn up, and the medicine cabinet was hanging. The total of the bills paid by Litschewski was $7,476.05. Lits-chewski testified as to the repair work completed and new items purchased.

Litschewski testified that he did not believe various appliances were worth repair. Litschewski acknowledged that he had had no conversations with any repairmen about repairing any of the appliances. He made no attempt to repair any items alleged to have been defective in the master bathroom and no estimates were obtained estimating the cost of repairing any items.

Litschewski testified that he bought the house in 1986. At that time, the range hood and oven he replaced were in the premises. The refrigerator and dishwasher were first installed in the premises in 1978.

Defendant testified that when she left the premises the oven, dishwasher, refrigerator and range hood were all in operating condition. The top of the toilet tank was cracked, and one unit on the cook top stove was not working. Outside of the toilet tank, the master bathroom was in good condition. The condition of the premises was generally corroborated by Barbara Dusold, defendant’s daughter, and Dr. Akhile Yeshwant, whose son took music lessons from defendant at the premises and who frequented the premises weekly, and as late as a day or two before defendant left the premises.

The trial court set forth the basis for its determination of damages:

“The only evidence that is admissible in this sort of a proceeding is evidence by a competent expert to show the fair market value at the date of the occurrence, or what the useful life of any appliance might be, or the replacement value at the time of the occurrence.
Without that expert testimony, I have to rely upon the replacement cost as exhibited in the exhibits that have been presented by the complaining witness at this time; unless you are prepared to bring in an expert today to tell me what the fair market value, having looked at it, of that particular appliance is, or what the replacement value of that particular appliance is based on date of acquisition and date of replacement.”

Defendant contends that the trial court erroneously awarded damages based upon “replacement cost” of various items of personal property.

Arguing that the trial court did not apply the proper law with regard to damages, defendant contends a correct statement of the law of Illinois is found in Trailmobile Division of Pullman, Inc. v. Higgs (1973), 12 Ill. App. 3d 323, 325. The court in Trailmobile stated:

“The measure of damages for a repairable injury to personal property is ordinarily the cost of making the repair and the value of the use of the property while the owner is necessarily deprived of it by reason of the repair. If the property is worth less after it is repaired than its value before the injury, the measure of damages is the difference in the market value before the injury and in its repaired condition in addition to the reasonable cost of repairs. Where, however, the property cannot be economically repaired the measure of damages is the difference between the market value of the property before the injury and the value of the wreckage.” Trailmobile, 12 Ill. App. 3d at 325.

Although Trailmobile is a case which relates to damages for personal property occasioned by a tortious act (see Trailmobile, 12 Ill. App. 3d at 324), whereas the cause of action in the instant case is based on breach of warranty, we nevertheless find the damages to be awarded are similar in nature. For example, where there has been a breach of warranty of habitability, the measure of damages is the cost of repair (Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1985), 134 Ill. App. 3d 402, 411), and where there is a breach of warranty for the sale of goods, the measure of damages is the difference between the fair market value of the good as warranted and the fair market value of the good as delivered (Griese v. Cory Pools, Ltd. (1978), 58 Ill. App. 3d 256).

The burden of proof regarding the correct measure of plaintiff’s damages is on the plaintiff, not the defendant, as placed by the trial court. Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 37.

In this case, Litschewski replaced all the kitchen appliances, which he claimed to be defective, with new appliances. However, no evidence was admitted as to whether any of the appliances were capable of repair or the cost of repairs. Litschewski made no attempt to repair any of the appliances. In looking at the defects in the kitchen appliances, it is possible that repairs could have been made to the appliances. The oven had a defective hinge, but was otherwise capable of heating and baking; the refrigerator had a bad smell and made a loud noise; two burners were not functioning on the cook top, but a burner had been repaired at the time defendant took possession for $75; the dishwasher lacked trays and a diffuser; and the range hood fan was inoperative. Even if the court accepted the claim that the appliances were not repairable, lack of testimony concerning the condition and fair market value of the property at the time of delivery is fatal to any action to recover for its loss. (See Kroch’s & Brentano’s, Inc. v. Barber-Colman Co. (1973), 16 Ill. App. 3d 412, 416.) If the kitchen appliances were beyond repair, then the correct measure of damages should have been the value of these items as warranted, in 1986, less the value of the items as delivered. (See Griese, 58 Ill. App. 3d at 257.) In this case, none of the items were new. The oven and range hood were at least 22 years old at the time of the trial, and the refrigerator, cook top, and dishwasher were installed in the premises in 1978, at least eight years before the settlement agreement. There was no evidence of the market value of these items at the time plaintiff took possession of the premises in 1986, or their salvage value. As these appliances had already had years of service, their value, even if working as warranted, would have been substantially less than new appliances.

To award plaintiffs the cost of new items as replacement cost is to award plaintiffs a windfall and make them more than whole. (See Kalal v. Goldblatt Brothers, Inc. (1977), 53 Ill. App. 3d 109, 112.) Damages for breach of contract should only place the aggrieved party in the position he would have been in had the contract been performed. (Kalal, 53 Ill. App. 3d at 112.) The trial court’s award puts plaintiffs in a much better position than if the contract had been performed and the appliances had been in working order. If the appliances had been in operating condition, plaintiffs still would have had a kitchen full of old appliances. Consequently, we reduce that portion of the judgment for $3,029.97 by the cost for the new appliances, $2,033.07, which leaves an amount of $996.90. Defendant has made no contention for setting aside this remaining portion of the judgment, and we therefore leave this amount intact.

Defendant next contends the miscellaneous repairs portion of the judgment in the amount of $839 is not supported by the evidence. We agree.

As the parties seeking recovery, it was plaintiffs’ burden to establish a reasonable basis for computation of the damages. Briarcliffe West Townhouse Owners Association, 134 Ill. App. 3d at 411.

The trial court in announcing its decision stated:

“We have this bill here of $4200.00 which includes other bills that were submitted at the same time that the testimony was presented. There are duplicates and replications. And it includes items that are outside the scope of the issues drawn by the compliant.
For that reason I am awarding $839.00 for the repairs only on that bill.”

We agree with the trial court’s assessment that the bill contained items outside the scope of the complaint. However, we find no evidence on which the court could have based its allocation. The bill stated the work to be done as follows:

“Repair Garage door, Replace 2 enterior [sic] doors. Replace shower door, install new towel bar in bathroom. Replace Bad Switch covers and outlet cover, Put door stops on all needed doors. Install new colored toleit [sic]. Replace glass in front door. Repair Screen in back stormdoor. Remove wallpaper 2 Baths & Kitchen one B.R. Paint, patch ceilings walls & Closets. Replace molding that’s damaged in D.R. Garage & yellow bath or anywhere else necessary. Rehang doors & Repair any door frames. Replace & grout tiles in Bathroom & Shower. Sand & Stain window frames where needed. Paint vanity in blue bath, Patch & Paint Garage Walls & Ceiling[.]
Refinish Kitchen Cabinet, New Knobs & Hinges. Install new countertop (including material) Install new Kitchen Sink. Material Included. Make new cabinet doors where oven was.”

We find that ceilings, walls, and wallpaper cannot in any sense be considered equipment as the term is used in the warranty. Therefore, we find that items included in the bill such as removal of wallpaper and the patching and painting of ceilings and walls could not be considered repairs for breach of warranty. Since the bill does not itemize what cost was incurred for what work, there is no way to tell what amount was incurred for work that was done because there had been a breach of warranty. Thus, the trial court had no basis before it for awarding the damages for repairs in the amount of $839.

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. The portion of the judgment for the cost of items repaired in the amount of $996.90 is affirmed. The portion of the judgment for new appliances in the amount of $2,033.07 is reversed, as is the award for repairs in the amount of $839.

Affirmed in part and reversed.

NASH and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    EVELYN R. WILEY, Plaintiff-Appellant, v. HENRY HOWARD, Defendant-Appellee.
    Second District
    No. 2—88—0562
    Opinion filed March 17, 1989.

      W.H. Major, of Major, Fennell & Associates, Ltd., of Wheaton, for appellant.
    Susan L. Satter, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Evelyn R. Wiley, D.D.S., appeals from an order of the circuit court of Du Page County assessing against her $1,012.50 in attorney fees pursuant to sections 2 — 611 and 12 — 817 of the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, pars. 2 — 611, 12 — 817) incurred by defendant, Henry Howard, in connection with the wrongful issuance of wage-deduction orders.

The following relevant facts appear from the record. Plaintiff brought suit against defendant for recovery of $730.50 for dental services rendered. A default judgment against defendant for $730.50 plus costs was subsequently entered. Plaintiff thereafter filed with the circuit court an affidavit for a wage-deduction order against defendant’s employer, the Chicago Transit Authority (CTA). On November 23, 1987, prior to the summons’ return date, the CTA filed its answers to the interrogatories served upon it, indicating that it had withheld $834.50 from defendant’s paycheck. The CTA did not, however, send a copy of its answer to plaintiff’s attorney as directed in the interrogatories. On December 21, 1987, plaintiff moved for entry of a conditional judgment against the CTA, alleging failure to respond to the interrogatories.

Plaintiff further served defendant with a citation to discover assets. Defendant failed to appear and a rule to show cause was issued. When defendant failed to appear as required by this order, a writ of attachment was issued, and defendant posted bond of $100, which he forfeited to plaintiff’s attorney on January 8, 1988. At that time, plaintiff was informed that the CTA was making wage deductions pursuant to the previously served wage-deduction order and a second wage-deduction order sought by plaintiff on December 29,1987.

On January 21, 1988, plaintiff filed an affidavit for a third wage-deduction order, which was issued. No credit for amounts previously collected was stated, and the costs were increased; however, the CTA continued to deduct amounts from defendant’s paycheck, collecting an additional $551.44 by March 9, 1988, at which point over $1,400 was available to satisfy plaintiff’s judgment.

On April 5, 1988, defendant filed a motion to vacate the second and third wage-deduction orders and sought an award of attorney fees pursuant to sections 2 — 611 and 12 — 817 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1987, ch. 110, pars. 2 — 611, 12 — 817). An affidavit of defendant’s attorney states that prior to filing the motion, she made several attempts to contact plaintiff’s attorney to resolve the situation. Upon agreement that the judgment had been paid, the parties further agreed to the dismissal of all the wage-deduction orders. Following arguments of counsel, the circuit court ordered plaintiff to release $68.56, constituting overpayment of the judgment, and ordered plaintiff to pay defendant’s attorney $1,012.50 in fees pursuant to sections 2 — 611 and 12 — 817 of the Code.

Plaintiff contends on appeal that the circuit court erred in awarding attorney fees to defendant pursuant to sections 2 — 611 and 12— 817 because she had reasonable cause for issuance of the second and third wage-deduction orders as defendant’s employer, the CTA, failed to supply plaintiff with a response to the initial summons.

Section 12 — 817 of the Code provides, “[i]f any person wrongfully causes summons to issue for a deduction order, he or she shall be liable to the employee and the employer for all damages occasioned by such action including reasonable attorney fees, which damages or attorney fees may be proved in the same action in which the summons was wrongfully issued.” (111. Rev. Stat. 1987, ch. 110, par. 12 — 817.) In the instant case, plaintiff had no cause for the issuance of additional summons after an amount sufficient to satisfy the judgment had been collected under the initial wage-deduction order. Moreover, the third wage-deduction order was secured on January 20, 1987, after plaintiff was informed on January 8, 1987, that the CTA was making deductions. While plaintiff notes the lack of case law relevant to the question of when summons is “wrongfully” issued, it is clear that an objective of the statute is protection of judgment debtors from deductions of wages exceeding that necessary to satisfy the judgments against them. We believe that the issuance of summons for amounts in excess of the judgment is wrongful under the circumstances here.

Plaintiff contends, however, that the CTA’s failure to serve upon plaintiff a copy of the answers to interrogatories justified the issuance of further summons. We disagree. Plaintiff could easily have searched the circuit court records to determine with certainty whether answers had been filed. This would constitute no excessive hardship to plaintiff under the facts present in this case. Had plaintiff checked the court file on January 8, 1987, when plaintiff and defendant were in court on this matter, it would have disclosed that the CTA’s answers to the interrogatories filed on\November 23, 1986, indicate that $834.50 was being withheld.

Furthermore, by filing a motion for entry of a conditional judgment against the CTA on December 21, 1986, pursuant to section 12— 807 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 807), plaintiff adequately insured her ability to collect the judgment against defendant in the event that the CÍA, as plaintiff believe^, was not making deductions from defendant’s wages. (See Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, 395, 454 N.E.2d 1132.) Moving for entry of a conditional judgment protected plaintiffs and obviated the need to file further summons leading to excessive deductions from defendant’s wages.

We thus find that the circuit court properly assessed attorney fees against plaintiff pursuant to section 2 — 817. In doing so, we express no opinion as to the existence of possible defenses to liability under different circumstances. Having so found, we need not consider whether section 2 — 611 would also support the award of fees in the instant case.

Defendant has moved in this court for an award of attorney fees, costs, and expenses on appeal pursuant to section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). In his motion, taken with the case, defendant cites Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1, wherein it was held that pursuant to section 2 — 611 a party may be awarded the costs of defending an appeal which is “a needless extension of a baseless lawsuit,” citing cases decided under section 41 of the Civil Practice Act, the predecessor to section 2 — 611. (155 Ill. App. 3d at 230, 507 N.E.2d at 6; see also Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 615, 505 N.E.2d 387; Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 190, 258 N.E.2d 150.) Defendant in his motion, however, seeks the award based only upon his assertion that the appeal is frivolous and lacks merit.

In Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 522 N.E.2d 837, the Appellate Court for the Fourth District distinguished awards of attorney fees and costs for the needless extension of a baseless lawsuit from the situation where it is merely alleged that an appeal is frivolous and held that, in the latter case, attorney fees and costs on appeal are not available under section 2 — 611, nor are they provided for by the supreme court rules. (168 Ill. App. 3d at 556-57, 522 N.E.2d at 840-41.) Because section 2 — 611 is penal, its provisions should be invoked only in cases falling strictly within its terms. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77.) We find no authority in section 2 — 611 in its current form for an award of attorney fees and expenses incurred for defense of a meritless appeal. Moreover, section 2 — 611 is located in the portion of the Civil Practice Law governing pleadings and does not involve procedure in the appellate court. (Darnall, 168 Ill. App. 3d at 557, 522 N.E.2d at 840.) The supreme court, rather than the legislature, has the power to issue rules regulating appeals. (People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541; People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 65-66, 237 N.E.2d 495; Darnall, 168 Ill. App. 3d at 557, 522 N.E.2d at 840.) No supreme court rule authorizes an award of attorney fees or litigation expenses on appeal for the filing of a frivolous or meritless appeal, as does Rule 38 of the Federal Rules of Appellate Procedure.

We recognize that our decision in Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 511 N.E.2d 831, states that Rule 11 of the Federal Rules of Civil Procedure, after which section 2 — 611 is modeled, has been interpreted in one Federal decision cited therein to allow attorney fees as a sanction for misstatements of law in an appellate brief, suggesting that section 2 — 611 would also allow attorney fees for misstatements of law in appellate briefs filed in the Illinois reviewing courts. (158 Ill. App. 3d at 224-25, 511 N.E.2d at 836; see also Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 986, 531 N.E.2d 1018.) We need not reexamine the analysis in Frisch Contracting Service Co., as it is not any authority for the proposition that such an award is available where it is merely contended that the appeal is frivolous or without merit, as is defendant’s contention here. Therefore, the motion for attorney fees and expenses on this appeal is denied, except that costs are allowable as provided for in Supreme Court Rule 374 (107 Ill. 2d R. 374).

For the foregoing reasons, the judgment of the circuit court is affirmed, and defendant’s motion is denied.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS CLANKIE et al., Defendants-Appellants.
    Second District
    Nos. 2—87—0416, 2—87—0417 cons.
    Opinion filed March 17, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Charles M. Schiedel and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellants.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Colleen Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, Thomas Clankie, a/k/a Tom or Tommy Clankie, and Karen Clankie, appeal from the judgment of the circuit court of Stephenson County finding them guilty of the offense of State benefits fraud (111. Rev. Stat. 1985, ch. 38, par. 17 — 6(a)). The trial court sentenced Thomas to four years’ imprisonment and Karen to 30 months’ probation conditioned upon her performing 1,000 hours of public service and serving 60 days in jail. Two issues are raised on appeal: (1) whether the trial court erred in refusing to authorize defendants, who are indigent, to hire an independent handwriting expert to assist in their defense; and (2) whether the trial court erred in considering the statutory provisions for good-behavior allowance when sentencing Thomas. We affirm.

On April 3, 1986, a grand jury indicted defendants for theft, State benefits fraud, and conspiracy based on defendants’ alleged acts of obtaining and receiving public aid by failing to report that Thomas was employed on a full-time basis and by misrepresenting his domicile. Defendants were appointed separate trial counsel, and each waived the right to a trial by jury. The trial court scheduled a bench trial for January 20, 1987.

On December 26, 1986, the State filed a motion requesting handwriting exemplars from both defendants. On January 20, 1987, the scheduled date of trial, the State renewed its request for handwriting exemplars and also moved for a continuance. The trial court granted the State’s motions and continued the cause for trial to March 17, 1987. The court set February 15, 1987, as the cutoff date for discovery. The State did not disclose the results of the handwriting analysis until March 3, 1987, and did not identify its expert until March 9, 1987. The State’s expert, Fabian Tasson, was an employee of the Illinois Department of Public Aid, the State agency which is the designated victim in this action.

On March 10, 1987, Thomas filed a motion to have an independent handwriting expert appointed to assist him in his defense. No hearing was scheduled on his motion. On March 17, 1987, prior to trial, Thomas renewed his motion. Although the court invited argument on that motion, Thomas did not argue its merits. Rather, Thomas complained generally about the discovery that had taken place up to that point and noted that he had only recently received disclosure of the State’s handwriting expert and the results of his tests. Thomas also argued that the State had not made a timely disclosure of 15 to 17 of its witnesses and ultimately sought to bar the testimony of those witnesses. Karen joined in that request. The court declined to bar the testimony of the State’s witnesses and stated instead that it would hear objections to each witness at the time the witness was called. Thomas did not seek a ruling on his motion to appoint an independent handwriting expert, and the trial commenced on schedule.

On March 18, 1987, prior to Tasson’s testimony, Thomas objected to the State calling Tasson as a witness. Thomas argued that the State had not disclosed the results of the handwriting analysis until March 3, 1987, and had not disclosed Tasson’s identity until March 9, 1987. Thomas argued in the alternative that if Tasson was allowed to testify, the trial court should provide Thomas with an independent handwriting expert. Karen joined in that request. The court overruled Thomas’ objection to Tasson being called to testify and denied defendants’ request for an independent handwriting expert on the basis that it was not timely. The court concluded that defendants waived their objection to Tasson’s testimony since they knew that a handwriting expert would be called and failed to object when he was not disclosed by the discovery cutoff date. The court also concluded that defendants’ request for appointment of an independent handwriting expert was not timely, stating that it was not “appropriate to wait until the middle of trial.”

According to evidence introduced at trial, defendants began receiving benefits from the Illinois Department of Public Aid in 1980 for themselves and their minor children. Defendants were advised to report any changes in income. Defendants did not report any income from employment despite testimony indicating that Thomas worked as a motor route driver for the Freeport Journal Standard and earned approximately $1,100 per month. Thomas was paid in checks made out to “Fred” Clankie. Fabian Tasson, the State’s handwriting expert, testified that the Freeport Journal Standard checks made out to “Fred” Clankie and the public aid checks written to Thomas Clankie bore endorsements in the handwriting of Thomas Clankie, Karen Clankie, or both. A witness from the Illinois Department of Public Aid testified that defendants’ benefits, which fluctuated between $348 and $491 per month, would have been discontinued if a member of the household was employed full time.

Other evidence indicated that in July 1983, Karen reported that Thomas no longer resided in the household. Karen reiterated that representation in December 1984 and again in July 1985. However, in November 1984, in an unrelated court proceeding, Karen testified that she and Thomas were living together. In addition, several neighbors testified that Thomas was residing in Karen’s household during the period that Karen represented that he was absent.

On April 1, 1987, the trial court filed a memorandum of opinion finding defendants guilty of the offense of State benefits fraud. The remaining charges were merged into the verdict and dismissed.

On April 29, 1987, the trial court held a sentencing hearing. At that time, the court stated:

“And I think that a sentence to the Illinois Department of Corrections is in order. If we were talking in terms of serving a four year period of time and I would think that the State’s recommendation of four years would be excessive. And when I view this in terms of the likelihood that he would be released on less than two years and then I think that it is an appropriate sentence.
And I don’t see him as being a problem to anyone as far as getting credit for good time when he’s incarcerated and I think that he would get that ***.”

The court thereafter sentenced Thomas to four years’ imprisonment and Karen to 30 months’ probation conditioned on performing 1,000 hours of public service and serving 60 days in jail. Defendants filed their respective notices of appeal on May 5, 1987, and the cases were consolidated for our consideration.

Defendants first contend that the trial court erred in denying Thomas’ request for an independent handwriting expert to assist in their defense. We disagree.

Generally, the State must, as a matter of equal protection, provide indigent defendants with the basic tools of an adequate defense or appeal. (Ake v. Oklahoma (1985), 470 U.S. 68, 77, 84 L. Ed. 2d 53, 62, 105 S. Ct. 1087, 1093; Britt v. North Carolina (1971), 404 U.S. 226, 227, 30 L. Ed. 2d 400, 403, 92 S. Ct. 431, 433.) Illinois has long recognized that a defendant may be entitled to funds to hire an expert witness where expert testimony is deemed critical to a proper defense. (People v. Glover (1971), 49 Ill. 2d 78, 82-83; People v. Watson (1966), 36 Ill. 2d 228, 234; People v. Kegley (1988), 175 Ill. App. 3d 335, 339.) Such an entitlement is established where the defendant demonstrates that the expert services sought are necessary to prove a crucial issue in the case and where the defendant’s financial inability to obtain his own expert will prejudice his case. (Glover, 49 Ill. 2d at 82-83.) In Watson, our supreme court considered whether an indigent defendant on trial for forgery was entitled to funds with which to obtain the services of a document examiner. (Watson, 36 Ill. 2d at 229-30.) Noting that the issue of handwriting went to the heart of the defense, the court found that the opinion of a handwriting expert may have been crucial to the defendant’s case and his lack of funds prevented him from presenting to the jury evidence which may have established his innocence. (36 Ill. 2d at 234.) Thus, the court held that the defendant was entitled to a reasonable fee for the purpose of hiring a document examiner. 36 Ill. 2d at 234.

However, although a defendant may, under certain circumstances, be entitled to obtain State-paid assistance in preparing his defense, the right to such assistance may be waived where it is not presented in a timely fashion. (See People v. Moore (1986), 147 Ill. App. 3d 881, 889 (defendant’s motion for a psychiatric examination made at the close of evidence was properly denied as untimely); People v. Strange (1980), 81 Ill. App. 3d 81, 87-88 (defendant’s motion for appointment of a State-paid psychiatrist ’ or psychologist made half-way through a two-week long trial was properly denied as untimely); People v. Hudson (1972), 7 Ill. App. 3d 333, 337-38 (indigent defendant’s motion for a copy of a codefendant’s trial transcript was properly denied as untimely when made on the “eve” of trial).) In reviewing the trial court’s denial of a defendant’s motion for State-paid assistance in preparing his defense, the trial court’s decision should not be reversed absent an abuse of discretion. See Strange, 81 Ill. App. 3d at 88.

In the instant action, the trial court concluded that Thomas’ request for an independent handwriting expert to assist defendants in their defense was untimely. We note that the State filed its motion for handwriting exemplars on December 26, 1986. The State renewed its motion on January 20, 1987, at which time the court granted the State’s motion and continued the trial to March 17, 1987. Thus, defendants had notice that handwriting would be an issue at the trial approximately two months prior to the trial’s commencement. However, Thomas did not file his motion requesting an independent handwriting expert until March 10, 1987, only seven days prior to the scheduled date of trial.

Moreover, although filing his motion in advance, albeit only seven days prior to trial, Thomas did not request a hearing on that motion until the beginning of the trial. At that time, despite the court’s invitation to hear argument on his motion, Thomas did not argue the motion on the merits, but rather complained generally about the discovery that had been taking place throughout the trial. At the conclusion of his argument, Thomas did not seek a ruling on his motion, but rather asked the court to bar the testimony of approximately 15 to 17 of the State’s witnesses for nondisclosure. No further mention was made regarding Thomas’ request for an independent handwriting expert, and the trial commenced on schedule. Thomas did not renew his request for an independent handwriting expert until the second day of trial after the State called its handwriting expert. The court determined that such a request at that stage of the proceedings was untimely.

A defendant has the responsibility for obtaining rulings on his motions, and his failure to do so constitutes a waiver of those issues on review. (People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 1109.) In the instant action, Thomas did not seek a hearing on his motion between March 10, 1987, when the motion was filed, and March 17, 1987, when the trial began. At that time, Thomas neither argued his motion nor sought a ruling on it. Thomas did not seek a ruling on his motion until the middle of trial. We cannot say that the trial court’s decision denying his motion as being untimely was an abuse of discretion given the ample opportunity in which Thomas had to obtain a ruling on his motion and the fact that such a ruling was not requested until a significant portion of the trial had elapsed. (See Strange, 81 111. App. 3d at 87-88.) We further note that, while the source of the signatures on the public aid checks and payroll checks from the Free-port Standard Journal was an issue in the trial that warranted testimony from a handwriting expert, the totality of the evidence presented was not so closely balanced that the trial court’s denial of Thomas’ request was prejudicial. (See Thibudeaux, 98 Ill. App. 3d at 1109.) Testimony from other witnesses indicates that Thomas not only lived with Karen during the period Karen was receiving checks on the pretense that he was absent, but also that Thomas worked for the Freeport Standard Journal during a period when he and Karen were receiving checks on the pretense that he was unemployed. Accordingly, we conclude that the trial court did not err in denying Thomas’ request for an independent handwriting expert.

Thomas next contends that the trial court erred in considering the statutory provisions for good-behavior allowance when sentencing him. We disagree.

Initially, the State argues that Thomas waived this issue by failing to object to the trial court’s remarks regarding good-behavior allowance at the sentencing hearing. We agree with the State that Thomas’ failure to object to the remarks at the sentencing hearing constitutes a waiver of this issue on appeal. See People v. Harvey (1987), 151 Ill. App. 3d 881, 883; People v. Moffitt (1985), 138 Ill. App. 3d 106, 113.

In any event, we do not find the trial court’s consideration of good-behavior credit to be an improper factor in sentencing. In People v. Smith (1986), 148 Ill. App. 3d 655, 655-56, the Appellate Court for the Fourth District considered whether a prosecutor’s remarks in closing argument that the defendant would obtain “good-time” credit and an early release constituted grounds for reversal. In imposing sentence, the court stated that it had considered the arguments of counsel, and the defendant argued that the court’s reliance on that argument was improper. (148 Ill. App. 3d at 656.) The appellate court stated that whether a defendant would receive credit for good behavior was not so speculative that it would be an improper factor in sentencing. (148 Ill. App. 3d at 656.) The court went on to expressly hold that consideration of “good-time” credit available to a defendant is a permissible consideration in sentencing. 148 Ill. App. 3d at 657.

In the subsequent case of People v. Harvey (1987), 151 Ill. App. 3d 881, 882, the court considered whether the remarks of the trial court in passing sentence that the defendant might be released after receiving credit for good behavior were improper and grounds for reversal. That court noted, as we do in the instant case, that the defendant failed to object to the remarks at the time of sentencing and thus waived the issue on appeal. (151 Ill. App. 3d at 883.) However, the court went on to note that it would reject the defendant’s claim were it to consider his argument on the merits. (151 Ill. App. 3d at 883.) The court stated:

“We see no reason why a sentencing judge may not consider the practical fact of good-time credit in fashioning a sentence which reflects the seriousness of a defendant’s offense and his potential for rehabilitation. [Citations.] It is entirely proper for a sentencing court to search within reasonable bounds for facts which aid in crafting a suitable sentence. [Citation.] We disagree with the defendant’s assertion that reliance upon otherwise proper factors in passing sentence will destroy sentencing parity in Illinois. The defendant’s sentence was within statutory bounds and reflects both the seriousness of his crime and his history of criminal activity. We find no abuse of discretion in the sentence imposed by the court.” 151 Ill. App. 3d at 883.

We note that both Smith and Harvey cite this court’s decision in People v. Torgeson (1985), 132 Ill. App. 3d 384, in support of the conclusion that a trial court’s consideration of good-behavior credit is not an improper factor in sentencing. In Torgeson, we determined that although the trial court remarked about the defendant’s potential for receiving “good-time” credit, those remarks were not the basis for the defendant’s sentence. (132 Ill. App. 3d at 389.) However, we went on to note that even if we were to interpret the court’s comments as indicating that “good-time” credit was considered in imposing the defendant’s sentence, we would not find consideration of that factor to be an abuse of discretion. (132 Ill. App. 3d at 389.) This court stated:

“In the absence of any authority to the contrary, we see no reason why a sentencing judge may not consider, as one factor, the realities of the sentencing law in fashioning a sentence which is reflective of both the seriousness of the offense and the defendant’s rehabilitative potential. A sentencing judge does not act in a vacuum, nor can he be expected to disregard the possibility of good-time credit which is inherent in every sentence of imprisonment. *** [A] sentencing court may properly determine the minimum amount of actual incarceration which is appropriate in light of the seriousness of the offense and the history and character of the defendant.” 132 Ill. App. 3d at 389.

In the instant action, the trial court determined that an appropriate sentence under the circumstances of the case required actual incarceration for approximately two years. The court considered Thomas’ rehabilitation potential and concluded, given the statutory provisions for good-behavior credit, that a sentence of four years’ imprisonment would result in actual incarceration for two years. We conclude that the trial court properly considered the likelihood of Thomas’ rehabilitative potential and the actual time he would serve when imposing sentence.

For the reasons set forth above, we affirm the judgment and sentence of the trial court.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH RADUNZ, Defendant-Appellant.
    Second District
    No. 2—87—0853
    Opinion filed March 17, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Keith Radunz, appeals from a decision of the circuit court of Stephenson County denying his motion to withdraw his guilty plea. The court found that Radunz had been properly admonished pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402) and that Radunz had adequate representation at the trial level. We affirm.

In April 1987, Radunz was arrested and charged with two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(cXl)). Radunz retained William Wise, an attorney, to represent him in the proceedings. Radunz’ attorney and the State’s Attorney engaged in negotiations, and an agreement was reached. Radunz agreed to plead guilty to one count of aggravated criminal sexual abuse, to undergo psychiatric evaluation and to pay for any counseling necessary for the victim and her family. In exchange, the State’s Attorney agreed to drop the remaining charge and to recommend a four-year term of probation, six months in the Stephenson County jail and a $500 fine. The court was not asked to participate or concur in this agreement pursuant to Supreme Court Rule 402(d)(2) (107 Ill. 2d R. 402(d)(2)).

On August 3, 1987, Radunz appeared before the trial judge and entered a plea of guilty to aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(c)(1).) The court then advised defendant as follows:

“THE COURT: *** [B]oth of the charges against you are Class 2 Felonies in this State and if you enter a plea of guilty, just as if you would be found guilty after trial, and the Court would have the following alternatives at the time of Sentencing. And you could be sentenced to the penitentiary, and if so for a definite term which would not be less than three years, nor more than seven. And depending on prior record, or other circumstances, an extended term might be considered and if so it could be up to 14 years in length. And if you’re sentenced to the penitentiary there could be two years of supervised release, or there would be, and that used to be called parole, and that would be from the date of release of confinement.
And if you’re sentenced to probation for that offense, and that would be up to four years in length. And if you’re fined, it can be an amount not to exceed $10,000.00. And if you’re sentenced to periodic imprisonment it would be for a definite term not less than 18 nor more than 30 months. And those are the alternatives.
And now what I want you to understand is that if you have entered into a negotiated plea with the State’s Attorney, and that will be stated on the record, and the terms of the plea negotiation. And the State will be bound by whatever has been promised to you by the State, and they would be bound at the time of Sentencing and cannot recommend something more severe then [sic] they have agreed to recommend.
And if they have agreed to dismiss a charge, and that would be dismissed on their motion. And I certainly cannot impose a sentence for a charge that is dismissed. But, I want you to understand that the Court would be free to consider all of the alternatives that I just mentioned if you enter a plea of guilty, and as I say, and it’s the same as if you were to be found guilty after trial. And the alternatives are the same; and do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And do you also understand that if you enter a plea of guilty, and that means that you’re waiving your right to a trial and giving up your right to require the State to prove guilt beyond a reasonable doubt and the right, or rather the presumption of innocence that you would have throughout the trial, and you’d be giving up your right to be confronted by the State’s witnesses and to have your attorney question them. And to either testify, or remain silent at your own trial, and the right to call witnesses and subpoena them, if necessary, to require their presence in Court; and do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And I want you to understand that I don’t know any terms of a plea negotiation, and I have not participated in that, but it will be stated on the record, and I will ask you if you’re agreeing to at least those terms. And what are the terms then of the plea negotiation?”

The prosecutor then provided the court with the factual basis of the charge. The court asked Radunz if he acted intentionally, and he responded that he had. Thereupon the court accepted the guilty plea and set a date for sentencing.

On August 21, 1987, a sentencing hearing was held. The State’s Attorney complied with the plea agreement and recommended probation. The court concluded that probation would deprecate the seriousness of the offense and that Radunz presented a danger to society. The court sentenced Radunz to a term of four years in prison.

On August 28, 1987, Radunz’ attorney presented a motion to withdraw as counsel. The court granted this motion and immediately directed the clerk to file a notice of appeal on behalf of defendant. The court also appointed the State Appellate Defender’s office to represent Radunz on appeal.

On September 7, 1987, a notice of appeal was filed on behalf of Radunz. Radunz’ appellate counsel filed a motion to remand. On September 28, 1987, this court remanded the case to allow for the filing of a motion to withdraw the guilty plea pursuant to Supreme Court Rule 604(d). (107 Ill. 2d R. 604(d).) Counsel was appointed for Radunz, and a motion to vacate the guilty plea was filed.

On March 16, 1988, a hearing on the motion was held. Radunz testified as follows:

“Q. Mr. Radunz, on August 3rd, 1987, you pled guilty to a count of aggravated criminal sexual abuse. Is that correct?
A. Yes, sir.
Q. And this was pursuant to plea negotiations between your attorney and the state’s attorney’s office. Is that correct?
A. Yes, sir.
* * *
Q. And was that plea negotiation that you were going to receive four years on probation, six months in the Stephenson County Jail, and psychological counseling for yourself, the children, and the family, and a $500 fine plus costs?
A. Yes, sir. That was the—
Q. Now, what did Mr. Wise tell you about this plea negotiation and the Judge?
A. Well, he said that he had a deal worked out, and he said the judge would go along with it.
Q. Now, did you here [,sic] the Judge tell you on that day that he didn’t have to follow the plea negotiations?
A. Well, I did, yeah, but my attorney told me not to worry about it, that the Judge would go along with the deal.
Q. And knowing that or at least believing that, you entered a plea of guilty in this case?
A. Yes, sir.
Q. If you had known that the judge was not going to follow the negotiation, would you have entered plea of guilty?
A. I don’t think so, no.”

Upon questioning by the State’s Attorney, the following exchange took place:

“Q. Keith, now, you did hear when the Judge was talking to you about your rights and so on; that if you were to enter a plea negotiation, he could change it? In other words, he didn’t have to accept the plea negotiation?
A. Yes, sir.
Q. Okay. You did hear the Judge when he said that.
A. Yeah.
Q. So did you have an understanding in your mind that if he did not agree with the plea agreement he could change it?
A. Well, I didn’t — I heard it, but I didn’t really, you know, no disrespect, but it didn’t really register, because I was standing behind my attorney.
Q. Okay. So essentially what you’re saying is the Judge said it but you were relying on what your counsel had told you.
A. Yeah.”

Radunz argued that he should be allowed to withdraw his guilty plea because the trial court did not properly admonish him pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402), and his trial counsel was inadequate. The court disagreed with these contentions and denied the motion to vacate. This appeal followed.

The issue before this court is whether the trial court properly admonished defendant and, if so, did his attorney’s misleading advice render the admonitions ineffective.

Initially, we will address the State’s concern as to this court’s jurisdiction to consider this appeal. The State contends that since defendant failed to file a timely motion to vacate the guilty plea pursuant to Supreme Court Rule 604(d), this court lacks jurisdiction to hear this appeal and defendant’s only remedy is the filing of a post-conviction petition. We disagree.

Supreme Court Rule 604(d) states in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).)

Rule 604(d) establishes a condition precedent to an appeal from a defendant’s plea of guilty. (People v. Stacey (1977), 68 Ill. 2d 261, 267.) The basic purpose of Rule 604(d) is to ensure that before an appeal is taken from a guilty plea, the trial judge who accepted the plea and sentenced the defendant is given an opportunity to hear and immediately correct any improprieties that may have occurred outside the official record. (People v. Wilk (1988), 124 Ill. 2d 93, 104.) The failure to file a Rule 604(d) motion is a jurisdictional defect which precludes the appellate court from reviewing a judgment entered on a guilty plea. People v. Potts (1985), 136 Ill. App. 3d 1059,1061.

Supreme Court Rule 605(b) states in relevant part:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:

(1) That he has a right to appeal;

(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion ***.” (107 111. 2d 605(b).)

If the trial court fails to admonish the defendant pursuant to Supreme Court 605(b), then the failure to file a timely Rule 604(d) motion is excused. Potts, 136 Ill. App. 3d at 1061; see also People v. Ryant (1976), 41 Ill. App. 3d 273, 274 (failure to comply with Rule 604(d) did not result in a waiver of the alleged errors when the trial court failed to comply with Rule 605(b)).

In the case at bar, defendant did not file a timely motion to vacate his guilty plea. However, it is clear from the record that the trial court did not inform Radunz that compliance with Rule 604(d) was necessary in order to preserve the issue for appeal. Thus, the court failed to comply with Rule 605(b). Additionally, after allowing defendant’s attorney to withdraw as counsel, the court directed the clerk to file a notice of appeal on defendant’s behalf. The court also appointed appellate counsel to represent Radunz on appeal. Assuming arguendo that the court did comply with Rule 605(b), the court eliminated any opportunity for Radunz to comply with Rule 604(d) by immediately having a notice of appeal filed on his behalf. We will not penalize the defendant in this case for errors committed by the trial court. Therefore, we hold that jurisdiction properly rests with this court.

We now turn to the issue of whether the trial court properly admonished defendant and, if so, did his attorney’s misleading advice render the admonitions ineffective.

Defendant contends that the trial court erred in denying his motion to withdraw the guilty plea and vacate the judgment because he was not adequately admonished pursuant to Supreme Court Rule 402. Specifically, defendant maintains that: (1) the trial court was ambiguous in its admonition regarding the binding effect of the plea agreement on the court; (2) the trial court did not ask Radunz if he wished to persist in his plea or withdraw it; and (3) even if the defendant was properly admonished, Radunz was misled by his attorney and believed the court would accept the plea agreement. Defendant alleges that as a result of the circumstances set forth above, his guilty plea was not intelligently and voluntarily entered. Supreme Court Rule 402 states in pertinent part:

“(a) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.

* * *

(d) When there is a plea discussion or plea agreement, the following provisions, in addition to the preceding paragraphs of this rule, shall apply:

***

(2) If a tentative plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement and the reasons therefor in advance of the tender of the plea. At the same time he may also receive, with the consent of the defendant, evidence in aggravation or mitigation. The judge may then indicate to the parties whether he will concur in the proposed disposition; ***

(3) If the parties have not sought or the trial judge has declined to give his concurrence or conditional concurrence to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the plea agreement, and that if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.” (107 Ill. 2d R. 402.)

The court must substantially, not literally, comply with the rule. People v. Sutherland (1984), 128 Ill. App. 3d 415, 419.

Upon review of the record, we find that the trial court informed defendant on at least two occasions that it was not bound by the terms of the plea agreement. Additionally, Radunz’ testimony during a hearing on his motion to withdraw indicates that he heard and understood that the court was not bound by the agreement. However, he chose to disregard the admonition. If it is incumbent upon the court to carefully admonish the defendant, we do not think it is asking too much of the defendant to require him to pay attention. We find that the court did inform defendant that it was not bound by the plea agreement.

Defendant’s next contention is that the court did not give him an opportunity to persist in his plea or to withdraw it and plead anew. This court has held on several occasions that the trial court’s failure to inform the defendant of his right to persist in a guilty plea or withdraw it does not taint the guilty plea. (People v. Smith (1983), 113 Ill. App. 3d 917, 924, citing People v. Lumley (1979), 76 Ill. App. 3d 221; People v. Pritchett (1974), 23 Ill. App. 3d 1084.) Following this line of cases, we find that the trial court, while not specifically asking defendant if he wished to persist in his guilty plea, did substantially comply with the requirements of Rule 402.

Defendant’s last contention is that he should have been permitted to withdraw his guilty plea because his attorney misled him in that defendant believed he would receive probation if he pleaded guilty. This issue was specifically addressed in People v. Robinson (1987), 157 Ill. App. 3d 622.

In Robinson, the defendant pleaded guilty and was sentenced to a 28-year term of imprisonment. Defendant alleged that his attorney had “promised” him a sentence “in the middle teens” if he pleaded guilty. In discussing this contention, the court stated:

“[Petitioner contends that his expectation of a light sentence was permissible in reliance on the alleged assurances of his counsel and clearly implies that the court’s lengthy and exhaustive admonitions were merely a perfunctory or ritualistic formality not requiring his attention. This characterization of the proceedings is unacceptable.” (157 Ill. App. 3d at 628.)

The court went on to state:

“A guilty plea made in reliance on the incorrect advice of counsel as to the anticipated term of a sentence is still a voluntary plea.” (157 Ill. App. 3d at 629.)

The court affirmed the trial court’s decision denying defendant’s request to withdraw his guilty plea.

While the Robinson case did not involve a written plea agreement, we feel that the underlying rationale is applicable here. Trust in one’s attorney is of utmost importance in our legal system. However, a defendant cannot be rewarded for disregarding the specific admonitions of the court. Radunz ignored the court’s admonishments allegedly because his attorney informed him the court would go along with the plea agreement. This conduct cannot be condoned. The trial court did not err in rejecting defendant’s claim that his guilty plea should be withdrawn because he was misled by his attorney.

For the above-stated reasons, the decision of the circuit court of Stephenson County denying defendant’s motion to withdraw his plea of guilty and vacate the judgment is affirmed.

Affirmed.

DUNN and LINDBERG, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. THOMAS LEE SALES, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2—88—0013
    Opinion filed March 17, 1989.
    DUNN, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney and Robert J. Ruiz, Solicitors General, and Rosalyn B. Kaplan and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    David W. Mandrgoc, of Mandrgoc & Linkowski, of Dixon, for appellee Thomas Lee Sales.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Jim Edgar, as Secretary of State (Secretary), appeals from an order of the circuit court directing the Secretary to issue a restricted driving permit (RDP) to defendant, Thomas Lee Sales, for the purposes of attending counseling and work. The Secretary contends that the circuit court exceeded its authority by ordering him to issue the RDP to defendant and requests that the order be vacated by this court. Defendant has responded with the argument, made for the first time on appeal, that revocation of defendant’s driver’s license by the Secretary of State pursuant to section 6 — 205(b)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(b)(2)), which requires the Secretary to so do, is in violation of the due process and equal protection guarantees of the State and Federal Constitutions. See People v. Lindner (1989), 127 Ill. 2d 174.

We find that the Secretary lacks standing to bring this appeal and that it must be dismissed.

The circuit court proceedings from which the Secretary wishes to appeal arose after defendant, Thomas Lee Sales, entered a plea of guilty to two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(b)) and on November 6, 1987, was sentenced to concurrent terms of probation for four years, with specified conditions and restrictions which included 60 days of periodic imprisonment. Thereafter, on November 9, 1987, a report of defendant’s conviction of a sex offense was mailed to the Secretary by the circuit court clerk, as is required by section 6 — 204(a)(1) of the Code. On December 3, 1987, an order nunc pro tunc was entered by the circuit court directing the Secretary to issue the restricted driving permit to defendant, and a certified copy of that order was mailed to the Secretary on December 10.

On January 4, 1988, the Secretary filed a notice of appeal to the appellate court from the order directing him to issue the restricted driving permit, and he also then filed in the circuit court a motion for a stay of the order. The Secretary noted in his motion that he was not a party to the proceedings prior to entry of the order, that he believed the order to be improper and that it had been appealed to the appellate court. The stay was denied by the trial court.

The Secretary did not seek to intervene in the circuit court proceeding for relief, nor did he seek to cause the disputed December 3, 1987, order to be vacated by the circuit court.

Section 6 — 205(b)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 205(b)(2)) requires the Secretary-to revoke the driver’s license of a person convicted of aggravated criminal sexual abuse, as in the present case, upon the Secretary’s receipt of notice of that conviction. However, such a person may receive a restricted driving permit (RDP) pursuant to subsection (c) of the Code, which provides:

“Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit ***.’’ Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(c).

See also 92 Ill. Adm. Code 1001.420 (1985).

In this court, the Secretary contends that-this statutory language places the ultimate decision to issue or not issue an RDP within the Secretary’s discretion, subject 'only to judicial review by a circuit court after the Secretary has rendered his final administrative decision. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 212; see generally Ball v. Edgar (1988), 165 Ill. App. 3d 349, 519 N.E.2d 35; Foege v. Edgar (1982), 110 Ill. App. 3d 190, 441 N.E.2d 1267.) The Secretary requests that we vacate the circuit court’s order. The defendant responds with the constitutional arguments noted earlier.

We find the recent case of People v. Bluett (1988), 166 Ill. App. 3d 593, 520 N.E.2d 395, to be dispositive. As in Bluett, the Secretary was again directed by this court to show on what basis he was authorized and had standing to bring this appeal. He responded that upon denial of the motion for a stay of the December 3, 1987, order, the Secretary complied with the order and issued the restricted driving permit to defendant. As to the merits of his standing to appeal, the Secretary responded, essentially as he did in People v. Bluett, that his right to appeal was founded upon Supreme Court Rule 301 (107 Ill. 2d R. 301) as a nonparty whose interest in the subject matter of the litigation was prejudiced by the judgment he seeks to have reviewed. (See People v. Bluett, 166 Ill. App. 3d at 598.) The Secretary argues that he has been vested with the exclusive authority to issue or deny a restricted driving permit (Ill. Rev. Stat. 1987, ch. 95V2, par. 6— 201(c)) and sole discretion to issue such a permit. (Foege v. Edgar (1982), 110 Ill. App. 3d 190, 441 N.E.2d 1267.) The Secretary asserts he was injured by the trial court’s order and would benefit from its reversal; also, that the circuit court has violated the separation of powers provision of the Constitution (Ill. Const. 1970, art. II, §1) and that the Secretary, as an executive officer, has a direct interest in correcting the improper judicial exercise of his discretionary powers. The Secretary also asserts that as he does not have the statutory authority to reject a court order to issue a restrictive driving permit, as he asserts that he does in the case of a judicial driving permit under section 6 — 206.1(B)(d) of the Code, he has no recourse except to appeal to the appellate court.

Although the parties have not raised the issue of the Secretary’s standing to appeal as he seeks to do here, we must determine whether this court has jurisdiction to entertain the appeal as the Secretary was not a party to the circuit court proceeding, nor did he seek to intervene therein.

We do not consider that the Secretary’s arguments distinguish the circumstances of this case from those in People v. Bluett and conclude he lacks standing to appeal.

In addition to the standing precepts discussed in Bluett, we would add that the Secretary’s argument he has no recourse except to this court is not accurate. In our view the Secretary could, and should, have sought to intervene in the circuit court upon receipt of the order to issue the restricted driving permit to defendant. If intervention had then been allowed, as is quite likely, the Secretary’s arguments could have been first litigated in the trial court and may have persuaded that court to vacate its order, making this appeal unnecessary. If such intervention had been denied, the Secretary would have a right to appeal the denial. (Koester v. Yellow Cab Co. (1974), 18 Ill. App. 3d 56, 309 N.E.2d 269; Krause v. White (1950), 341 Ill. App. 322, 93 N.E.2d 429; Veteran’s Travel Club of Western Illinois University v. Illinois Commerce Comm’n (1973), 15 Ill. App. 3d 116, 303 N.E.2d 142.) In such case, this court would have the benefit of a record made below on the issues for our review, and, in the event of an improvident order by the circuit court, it would ordinarily be corrected most expeditiously there.

As held in People v. Bluett, as a nonparty the Secretary lacks standing to seek direct review in the appellate court of judgments of the circuit court which he deems to incorrectly apply the Illinois Vehicle Code. Nor may the Secretary find standing to appeal from an order solely because of the possibility he may be held in contempt of court for failure to obey its orders. People v. Bluett, 166 Ill. App. 3d at 600.

We are aware that there are similar cases pending before our supreme court in which the scope of the Secretary of State’s standing to appeal in these matters will be considered. Perhaps this case will assist in the resolution of the issue.

For the reasons stated, the appeal will be dismissed.

Appeal dismissed.

LINDBERG, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent. The Secretary does have standing to appeal the void order entered against him by the trial court.

A nonparty to an action has standing to appeal an order entered in the action if it has a direct, immediate, and substantial interest in the controversy. The nonparty’s interest must be one which is either prejudiced by the judgment or which would be benefitted by a reversal of the judgment. (People v. White (1988), 165 Ill. App. 3d 249, 253, 518 N.E.2d 1262, 1265.) A nonparty is prejudiced or aggrieved in the legal sense so as to give him standing on appeal when his legal right has been invaded or pecuniary interest is directly, not indirectly, affected. People v. Bluett (1988), 166 Ill. App. 3d 593, 598, 520 N.E.2d 395, 398.

In the present case, the trial court ordered the Secretary to issue a restricted driving permit (RDP), a function wholly within the Secretary’s discretion as delineated by section 6 — 205(c) of the Code. The legislature has expressly given the Secretary specific duties and responsibilities regarding the issuance of an RDP. However, he could be held in contempt for failing to comply with an order of the circuit court without any forum in which to contest an order directly affecting his statutory responsibilities. I therefore believe that, in this case, the Secretary has a sufficiently direct, immediate, and substantial interest in exercising the discretionary powers of his office specifically defined by the statute. (See White, 165 Ill. App. 3d at 253, 518 N.E.2d at 1262; see also Landmarks Preservation Council v. City of Chicago (1988), 125 Ill. 2d 164, 531 N.E.2d 9.) Here, the direct order of the circuit court resulted in prejudice to the Secretary. He therefore has standing to pursue this appeal. I am mindful of our decision in Bluett wherein we concluded that the Secretary has no broad, general standing to contest decisions affecting the Illinois Vehicle Code with which he may disagree. (166 Ill. App. 3d at 599, 520 N.E.2d at 399.) Bluett is readily distinguishable because, in that case, there was no prejudice to the Secretary resulting from the order from which he sought to appeal. In Bluett, the Secretary contested the circuit court’s issuance of a judicial driving permit, arguing that it was not properly issued according to sections 6 — 206.1 and 11 — 500 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95%, pars. 6 — 206.1, 11 — 500). The Secretary’s interest in that case was merely indirect because, as we pointed out in People v. Minor (1987), 162 Ill. App. 3d 140, 147, 514 N.E.2d 1042, 1046, only the court and the clerk of the court actually participate in the issuance of a judicial driving permit (JDP), while the Secretary’s duties in making entries with respect to a JDP on the petitioner’s driving record are purely ministerial.

Here, by contrast, the circuit court has ordered the Secretary to perform not merely ministerial duties, but to exercise his powers of discretion in the manner determined by the court. As the Secretary has pointed out, the plain statutory language of section 6 — 205(c) of the Code expressly grants the Secretary discretion to issue an RDP upon submission of an application by the convicted driver. Since the statutory language is simple and unambiguous, it is improper for a court to depart from the plain language by reading into the statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent. Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363, 389 N.E.2d 151, 153.

The Illinois Constitution divides the powers of government among the legislative, executive, and judicial departments and provides that none of these shall exercise powers belonging to the others. It is clear that the judicial department may not take, as its own, discretionary powers vested in an executive officer. (People v. Henry (1974), 20 Ill. App. 3d 73, 74, 312 N.E.2d 719, 720.) The function of the court is to review the exercise of discretion by the Secretary, not to exercise that discretion. In substituting its discretion for that of the Secretary by ordering the issuance of an RDP, the trial court violated the separation of powers doctrine. Ball v. Edgar (1988), 165 Ill. App. 3d 349, 353, 519 N.E.2d 35, 36-37.

A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks the inherent power to make or enter the particular order involved. Such a judgment may be attacked at any time, either directly or collaterally. (People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955.) The statute in question contemplates that the court may merely recommend the issuance of an RDP. The trial court exceeded its powers by ordering the issuance of the RDP. Therefore, the order of December 3, 1987, requiring the Secretary to issue an RDP, is void. The Secretary does have standing to appeal to this court.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TRACY L. DAVIS, Defendant-Appellee.
    Second District
    No. 2—88—0288
    Opinion filed March 17, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael T. Smith, of Schaumburg, and Rochelle J. Brinnick, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a judgment of the circuit court which rescinded summary suspension of the driving privileges of defendant, Tracy Davis, pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1). The State contends that such rescission was improper as it was based upon the trial court’s erroneous finding that a breathalyzer result of .10 is automatically subject to, and reduced by, an industrial tolerance level of .01, thus requiring rescission of the summary suspension of defendant’s driver’s license.

The defendant, Tracy Davis, was arrested in the early morning hours of December 27, 1987, by an Elmhurst city police officer and charged with driving under the influence of alcohol in violation of section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)). At the police station, the defendant voluntarily submitted to a breathalyzer test on which she registered a result of .10. On the basis of this test result, the arresting officer, Michael Campise, prepared a law enforcement sworn report and served notice upon the defendant of the summary suspension of her driving privileges, pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1).

The defendant requested a summary suspension hearing at which she presented her own testimony and that of Officer Campise. During closing argument, defense counsel stated that the type of breath-analyzing machine used in testing defendant (Smith and Wesson Model 2000) had “an industrial tolerance level of .01.” The State objected to this assertion and argued that the court should not take the defense counsel’s statement into consideration as there was no evidence presented on the issue of variance, and defense counsel had failed to ask the court to take judicial notice of the Department of Public Health standards relating to breath-analyzing machines.

The trial court found that Officer Campise had reasonable ground to arrest the defendant and that there were sufficient facts for him to have concluded that the defendant was driving under the influence of alcohol. However, the court stated that it would be improper not to take judicial notice “of the plus or minus ratio — the tolerance, plus or minus, on the machine.” Because the defendant’s breathalyzer test result was exactly .10, and because of the claimed standards allowing for a tolerance, the trial court granted the defendant’s petition to rescind the summary suspension of her driving privileges.

The sole issue presented is whether the trial court erred in taking judicial notice of an asserted “industrial tolerance level” on breathalyzer machines which would require breathalyzer test results of .10 to fail to support the automatic summary suspension of driving privileges required by section 11 — 501.1 of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). The State contends that the tolerance level of a breathalyzer machine is not subject to judicial notice because it is not a fact that is generally known to be true by everyone; the State further contends that if such fact were so well known, the legislature must have taken its existence into account when drafting the applicable driving-under-the-influence statutes. The State concludes that the trial court’s interpretation that the summary suspension statute does not apply when a breathalyzer test result exactly equals .10 renders a portion of the statute meaningless. We agree and reverse the erroneous judgment which rescinded the summary suspension of defendant’s license on this novel theory.

Section 11 — 501.1(d) provides that if a motorist refuses to submit to a chemical test of blood, breath or urine for the purpose of determining alcohol concentrations therein, or, having submitted to such test, the motorist’s alcohol concentration is determined to be .10 or more, the arresting officer must prepare a sworn report and submit it to the appropriate circuit court and the Secretary of State. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1(d).) Section 11 — 501.1(e) of the Code further requires that upon receipt of such sworn report, the Secretary of State shall summarily suspend the motorist’s driving privileges. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1(e).) Elsewhere in the Code, driving under the influence of alcohol is prohibited (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 501(a)(2)), as is driving when a motorist’s blood or breath contains an alcohol concentration of .10 or more, as disclosed by chemical analysis (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 501(a)(1)). Such chemical analysis gives rise to certain presumptions, as in section 11 — 501.2(b)(3), which provides that if a motorist’s alcohol concentration is .10 or more, “it shall be presumed that the person was under the influence of alcohol.” (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 501.2(b)(3).) These statutes which pertain to the offense of driving under the influence of alcohol and the testing of persons suspected of driving under the influence are consistent and clear in their application of the standards set by the legislature. An alcohol concentration of .10 or more as shown by chemical analysis triggers specific statutory action on the part of law enforcement officials and the Secretary of State, and, as noted above, the showing of such an alcohol concentration gives rise to a presumption that the individual was under the influence of alcohol.

In spite of the clear direction set forth by the legislature with regard to a motorist’s alcohol-concentration level as determined through chemical analysis, the defendant contends that “the statutes provide for suspension in cases where a motorists [sic] blood alcohol concentration, not test results, is .10 or greater.” (Emphasis in defendant’s brief.) The defendant is apparently arguing that the various statutory references to alcohol concentration actually indicate an absolute value rather than the results disclosed by chemical testing of an individual’s blood, breath or urine. Thus, the defendant argues, any variance in a testing procedure such as the “industrial tolerance” asserted to be applicable to a Smith and Wesson Model 2000 breathalyzer machine is relevant to the issue of whether a motorist’s driving privileges will be suspended pursuant to section 11 — 501.1(e) of the Illinois Vehicle Code.

Whether a breathalyzer test was properly administered and whether the result obtained is accurate are relevant factors in a summary suspension hearing. We note, however, that the defendant in the present case failed to introduce any evidence that she was improperly tested, that the machine in question malfunctioned or the result was inaccurate. Such evidence is indispensable for the defendant to meet her burden in establishing a prima facie case for rescission. See People v. Orth (1988), 124 Ill. 2d 326, 336-38, 530 N.E.2d 210, 215; People v. Torres (1987), 160 Ill. App. 3d 643, 647, 513 N.E.2d 1142, 1145.

The Department of Public Health has promulgated regulations concerning proper testing methods and trustworthy test results. (77 Ill. Adm. Code 510.10 et seq. (1985).) It requires breath-analysis machines to “be accurate within plus or minus 0.01% W/V to be certified [as valid alcohol-concentration analysis machines].” (77 Ill. Adm. Code 510.100(a) (1985).) “WIV” is elsewhere defined as the weight of alcohol per volume of breath or other substance sampled. 77 Ill. Adm. Code 510.20 (1985).

Although the defendant did not offer the above regulations in evidence or refer to them in the trial below, it would appear that she based her argument for rescission on section 510.100(a) (77 111. Adm. Code 510.100(a) (1985)). In spite of the defendant’s apparent failure to produce the text of the regulations for the court to examine, and her failure to specifically invoke the applicable regulation, the trial court took judicial notice of it and did so simply on defense counsel’s general representation as to its provisions.

A court may properly take judicial notice of administrative rules and regulations (Acme Brick & Supply Co. v. Department of Revenue (1985), 133 Ill. App. 3d 757, 762, 478 N.E.2d 1380) and can also take notice of facts which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable authority. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 166, 449 N.E.2d 812; see Ill. Rev. Stat. 1985, ch. 110, pars. 8— 1001 through 1009.) However, no court can judicially notice a fact, regulation, ordinance, document, or administrative rule unless it has been supplied with or has ready access to the matter to be noticed (see People v. Davis (1976), 65 Ill. 2d 157, 165, 357 N.E.2d 792). That did not occur here as no reference to or copy of the regulation which the trial court noticed and relied upon was supplied to it or is found in the record. Nevertheless, we have located the regulation in question, as earlier noted, and will consider whether it was correctly construed in this case.

While the Department of Public Health requires instruments used for the analysis of alcohol concentration to be certifiably accurate within a certain range, that fact does not lead to the necessary conclusion that all such instruments err to that exact degree. It is conceivable that such instruments exist which are able to analyze alcohol concentrations with little or no degree of error whatsoever; however, the regulation only specifies that such instruments must be accurate within plus or minus .01%. Thus, a machine testing at the outer range of accuracy could actually underreport an individual’s alcohol concentration. Applying this potential for positive error to the defendant in the present case, whose test result was .10, it is possible, albeit not proved, that her alcohol concentration was, in fact, .11. Under the reasoning applied by the trial court, however, it was assumed that any such error would necessarily be on the negative side, thus reducing the test result to .09, and permitting defendant to retain her driving privileges. In this case, however, the defendant produced no evidence whatsoever that the particular machine involved in her test on December 27,1986, erred in any manner.

We think it is clear that the various sections of the Illinois Vehicle Code which refer to alcohol-concentration levels refer to alcohol concentrations as revealed by chemical tests or other analysis. The Code does not state nor does it imply that law enforcement officials must somehow obtain absolute values which are certifiably free of any inaccuracy whatsoever. We think it equally clear that the acceptable margin of error on a breathalyzer machine is .01%, as provided in the Department of Public Health Regulations, and conclude that such margin of error is accounted for throughout the statutory scheme.

Although the trial court could have properly taken judicial notice of the administrative regulation referred to earlier, if provided to him, it was improper for the court to take judicial notice of or consider the alleged “industrial tolerance level” of the brand of breath-analysis machine used in the defendant’s arrest to which defendant’s counsel referred in argument. We note that the phrase “industrial tolerance level” was not defined in trial by either of the parties or by the court.

We discussed earlier certain standards governing matters of which courts may take judicial notice. Our supreme court has stated:

“Courts may take judicial notice of matters which are commonly known (People v. Tassone (1968), 41 Ill. 2d 7, 12) or of facts which, while not generally known, are readily verifiable from sources of indisputable accuracy (People v. Davis (1976), 65 Ill. 2d 157, 165).” (Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 469 N.E.2d 1085, 1090.)

Thus it has been said that the court does not operate in a vacuum and is to be presumed no more ignorant than the general public. (People v. Tassone (1968), 41 Ill. 2d 7, 12, 241 N.E.2d 419, 422.) Both parties correctly characterize the standard for judicial notice of a fact as proper when a particular item is something which is commonly known or “that which everyone knows to be true.” (Tassone, 41 Ill. 2d at 12, 241 N.E.2d at 422.) In her brief to this court, the defendant claims “it is commonly known that machines are subject to industrial tolerances, so as to make evidence of [this] fact unnecessary.” Although she does not specify what type of machine she is discussing, we may take it to mean the Smith and Wesson Model 2000 breathalyzer instrument. As noted above, the phrase “industrial tolerance” was not defined by the defendant or the trial court, and it is apparent that phrase and the defendant’s unsupported assertion above are too imprecise for this court to take judicial notice of their existence. (See In re Marriage of And (1986), 142 Ill. App. 3d 320, 325-26, 491 N.E.2d 894, 898.) Further, neither of these claims is of such a nature as to meet the requirements for judicial notice; if the defendant wished to rely upon the theory of “industrial tolerance” and its significance with regard to her test results, explanation of the theory and its relevance should have been introduced by way of expert testimony. See Murdy, 103 Ill. 2d at 394, 469 N.E.2d at 1090.

In view of the foregoing, we find that the trial court’s judicial notice of an unsubstantiated theory of “industrial tolerance levels” of breathalyzer machines was improper and that the court incorrectly interpreted and thus misapplied the administrative regulation in rescinding summary suspension of the defendant’s driving privileges.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

INGLIS and WOODWARD, JJ., concur.